Attorney Grievance Commission v. Gelb

³¹⁵ BARBERA, C.J. On August 6, 2013, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (the “Petition”) against Respondent, attorney Jason Robin Gelb. The Petition alleged violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) in connection with Respondent’s misappropriation of his clients’ funds and failure to represent his clients competently and diligently. Specifically, the Petition alleged that Respondent violated MLRPC 1.1 (competence); MLRPC 1.3 (diligence); MLRPC 1.4(a) and (b) (communication); MLRPC 1.5(a) and (c) (fees); MLRPC 1.15(a), (c), and (d) (safekeeping property); MLRPC 8.4(a), (c), and (d) (misconduct); Maryland Rule 16-606.1 (attorney trust account record-keeping); Maryland Rule 16-609 (prohibited transactions); and Maryland Code (1989, 2010 RepLVol.), § 10-306 of the Business Occupations and Professions Article (hereinafter “BOP § 10-306”) (misuse of trust money). On August 12, 2013, this Court designated the Honorable J. Barry Hughes of the Circuit Court for Carroll County (the “hearing judge”) to conduct an evidentiary hearing and render written findings of fact and conclusions of law.

Respondent was served with process, in compliance with Maryland Rule 16-753, but did not file a response to the Petition, timely or otherwise. Accordingly, on October 7, 2013, the hearing judge entered a default order against Respondent and the matter was set for a hearing to be held on December 13, 2013. Respondent neither moved to vacate the order nor appeared at the hearing. During the December 13, 2013 hearing, the hearing judge heard evidence from Petitioner, along with three complainants testifying for Petitioner—Alan Jones, Jr., Calvin Jones, and Stephanie Dress.

Thereafter, the hearing judge issued written findings of fact and conclusions of law, in which he concluded, by clear and convincing evidence, that Respondent had violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.5(a) and (c); MLRPC 1.15(a), (c), and (d); ³¹⁶ MLRPC 8.4(a), (c), and (d); Maryland Rule 16-606.1; Maryland Rule 16-609; and BOP § 10-306. No exceptions were filed. On September 4, 2014, we held oral argument, at which only Petitioner appeared. I. Based on the evidence presented at the December 13, 2013 hearing, the hearing judge set forth findings of fact, which we summarize: Respondent was admitted to the Maryland Bar on June 13, 2006.

In 2010, Respondent was practicing law at the Law Offices of Jason Gelb in Towson, Maryland. Upon information and belief, Respondent is no longer practicing law in this office. Representation of Alan Jones, Jr. In April 2010, Alan Jones, Jr. (“A. Jones”) retained Respondent to initiate collection actions against debtors to his business, 410 Bail Bonds, LLC (“410 Bail Bonds”). Respondent orally agreed to be paid on a contingency basis, but he failed to memorialize this in his written retainer agreement.

Respondent also agreed to provide A. Jones with monthly reports of the funds recovered from the collection actions. Although Respondent initially provided A. Jones with the reports, Respondent later repeatedly failed to do so. On April 14, 2010, A. Jones paid Respondent $500 to cover court costs. On or about July 28, 2011, and on or about October 12, 2011, Respondent issued A. Jones remittance checks from his operating account for $1051.23 and $973.88, respectively.

Respondent failed to pursue three of A. Jones’s cases in the District Court of Maryland, sitting in Baltimore County, against obligors of 410 Bail Bonds. The cases were dismissed for failure to prosecute, resulting in a loss of $6,000 in money owed by 410 Bail Bonds’s obligors that 410 Bail Bonds was unable to recover. ³¹⁷ Representation of Calvin Jones In 2009, Calvin Jones (“C. Jones”) retained Respondent to collect debts owed to C. Jones’s companies, Mr. Bail Bonds and Elite Bail Bonds. Respondent agreed to be paid on a contingency basis, but he failed to memorialize this in a retainer agreement. Respondent also said that he would issue C. Jones remittance checks from the collection cases and send him monthly reports of the funds collected.

On March 30, 2011, Respondent issued C. Jones a remittance check from his operating account for $5,126.58. At some point during Respondent’s representation, Respondent issued C. Jones a check from his trust account that was declined for insufficient funds. At another point, Respondent issued C. Jones a post-dated check. Respondent also repeatedly failed to communicate with C. Jones about the status of his cases, and three of Elite Bail Bonds’s cases were dismissed due to Respondent’s failure to prosecute.

Representation of Shawn Potochney In 2010, Shawn Potochney (“Mr. Potochney”) retained Respondent to initiate collection actions against the debtors of his company, Last Stop Bail Bonds (“Last Stop”). Respondent orally agreed to receive a 25% contingency fee, but failed to memorialize this in his retainer agreement and, instead, later charged Mr. Potochney a 33% fee for the cases in which Respondent collected funds. During the course of representation, Respondent failed to provide Mr. Potochney with receipts for the payments Respondent received from Last Stop’s collection cases. Respondent also ignored Mr. Potochney’s request that Respondent provide him with monthly reports of the collections.

Beginning in 2011, Respondent issued approximately seven remittance checks to Mr. Potochney. Respondent instructed Mr. Potochney not to deposit one of the remittance checks because Respondent had insufficient funds in his account. After late 2012, Respondent had no further contact with Mr. Potochney. ³¹⁸ Representation of Dwayne Holley In or about October 2009, Dwayne Holley (“Mr. Holley”) retained Respondent to represent him in five criminal and civil actions. Mr. Holley paid Respondent $700 for his legal services, $500 of which he instructed Respondent to use for Mr. Holley’s bail review hearing.

Although Respondent assisted Mr. Holley with his bail review hearing, Respondent failed to represent Mr. Holley in several other pending actions for which Respondent was retained. Mr. Holley repeatedly attempted to contact Respondent, but Respondent failed to respond. Mr. Holley has been unable to secure new counsel or receive his files from Respondent. On March 14, 2013, Petitioner sent Respondent a certified letter notifying him that the present disciplinary matter had been docketed.

On March 15, 2013, Respondent signed the return receipt card acknowledging his receipt of the letter, but he failed to respond to Assistant Bar Counsel’s requests for information regarding Mr. Holley’s complaint. Representation of Stephanie Dress In October 2010, Stephanie Dress (“Ms. Dress”) retained Respondent to represent her in a personal injury case arising from an automobile accident. From March to November 2011, Ms. Dress repeatedly attempted to contact Respondent, but she frequently had difficulty reaching him. In or about August 2011, Respondent settled with Geico Insurance Company for $20,000 on behalf of the negligent driver in Ms. Dress’s accident.

On August 22, 2011, Respondent issued Ms. Dress a settlement check for $8,904.25. That same day, Ms. Dress signed Respondent’s settlement memorandum, which listed the distributions that Respondent made to Ms. Dress’s medical providers from the recovery. The memorandum noted that a payment of $1,462.30 was issued to Advanced Radiology. Respondent, however, did not pay Advanced Radiology until nearly six months later, on February 17, 2012.

Respondent’s delay caused Advanced Radiology to refer the debt to a collection agency, which subsequently ³¹⁹ instituted a collection action against Ms. Dress, negatively impacting her credit score. During the representation, Respondent also began negotiations with Ms. Dress’s insurance carrier, but he failed to recover any funds on her behalf. Instead, Respondent largely ceased communications with Ms. Dress after November 2011 and failed to respond to Ms. Dress’s repeated requests for her case file in order to pursue her claim against her insurance carrier. Respondent also failed to respond to Bar Counsel’s requests for information regarding the present disciplinary matter.

Based upon these factual findings, the hearing judge concluded, by clear and convincing evidence, that Respondent violated MLRPC 1.1 (competence); MLRPC 1.3 (diligence); MLRPC 1.4(a) and (b) (communication); MLRPC 1.5(a) and (c) (fees); MLRPC 1.15(a), (c), and (d) (safekeeping property); MLRPC 8.4(a), (c), and (d) (misconduct); Maryland Rule 16-606.1 (attorney trust account record-keeping); Maryland Rule 16-609 (prohibited transactions); and BOP § 10-306 (misuse of trust money).

II

In attorney discipline proceedings, this Court “has original and complete jurisdiction and conducts an independent review of the record.” Attorney Grievance Comm’n v. Page, 430 Md. 602, 626 , 62 A.3d 163 (2013). We accept the hearing judge’s findings of fact as correct unless shown to be clearly erroneous. Attorney Grievance Comm’n v. Lara, 418 Md. 355, 364 , 14 A.3d 650 (2011). Neither Respondent nor Bar Counsel filed exceptions to the hearing judge’s findings of fact.

We therefore treat those findings as established. See Md. Rule 16-759(b)(2)(A). We review de novo the hearing judge’s conclusions of law. Md. Rule 16-759(b)(l); Page, 430 Md. at 626 , 62 A.3d 163 .

This is true even if, as in this case, a default order was entered against the respondent by the hearing judge. See ³²⁰ Attorney Grievance Comm’n v. Landau, 437 Md. 641, 650 , 89 A.3d 1107 (2014). The ultimate decision as to whether an attorney has engaged in professional misconduct lies with this Court. Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 717 , 93 A.3d 262 (2014).

III

Neither party filed exceptions to the hearing judge’s conclusions of law. Based upon our de novo review of the record, we agree with the hearing judge that Respondent violated MLRPC 1.1; MLRPC 1.3; MLRPC 1.4(a) and (b); MLRPC 1.5(a) and (c); MLRPC 1.15(a), (c), and (d); MLRPC 8.4(a), (c), and (d); Maryland Rule 16-606.1; Maryland Rule 16-609; and BOP § 10-306. Failure to Diligently Represent and Communicate with Clients MLRPC 1.3 states, “A lawyer shall act with reasonable diligence and promptness in representing a client.” This Court has held that “an attorney violates MLRPC 1.3 when he/she fails to pursue his/her client’s case by not prosecuting the claim after filing the complaint.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 320 , 44 A.3d 344 (2012); see also Attorney Grievance Comm’n v. Costanzo, 432 Md. 233, 253-54 , 68 A.3d 808 (2013) (holding that an attorney violated MLRPC 1.3 by failing to pursue a claim on his client’s behalf); Attorney Grievance Comm’n v. Patterson, 421 Md. 708, 737 , 28 A.3d 1196 (2011) (stating that a lawyer’s failure to prosecute a claim demonstrated “incompetence and insufficient diligence in the matter” in violation of MLRPC 1.3). MLRPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]” In Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 222 , 892 A.2d 533 (2006), we explained that an attorney’s “failure to act on the client’s case for over three years and failure to expedite litigation, to the ³²¹ client’s detriment, is conduct prejudicial to the administration of justice.” Respondent filed collection cases on behalf of A. Jones and C. Jones, but he failed to prosecute several of the claims.

As a result, “six collections cases in the District Court for Baltimore County were dismissed due to Respondent’s lack of prosecution.” Respondent also failed to represent Mr. Holley in the all of the matters for which Respondent was hired. We hold that Respondent’s failure to pursue diligently his clients’ cases constitutes a violation of MLRPC 1.3, and is prejudicial to the administration of justice in violation of MLRPC 8.4(d). MLRPC 1.4(a) states, in relevant part, that a lawyer shall “keep the client reasonably informed about the status of the matter[, and] promptly comply with reasonable requests for information^]” MLRPC 1.4(b) states that “[a] lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.” We have held that “violations of MLRPC 1.3 can be ... closely linked to violations of MLRPC 1.4.” Attorney Grievance Comm’n v. Pinno, 437 Md. 70, 80 , 85 A.3d 159 (2014) (internal quotations and citations omitted). The hearing judge found that “Respondent initially began to discuss the complainants’ cases and as time progressed, failed to