Attorney Grievance Commission v. Granger

CATHELL, Judge. On or about April 22, 2002, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Glenn M. Grossman, Deputy Bar Counsel, filed, pursuant to Maryland Rule 16-751, 1 a petition for disciplinary action against Thomas Leo Granger, III, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based upon his representation of Phyllis Klingenberg, the complainant, had violated MRPC 1.1, 1.2(a), 1.3, 1.4, 8.1(a) and 8.4(c) and (d). 2 ⁴⁴² On April 17, 2002, pursuant to Maryland Rule 16-752, 3 this Court transmitted the matter to Judge Pamela North of the Circuit Court for Anne Arundel County, the hearing judge, to conduct a hearing and to make findings of fact and conclusions of law. On November 20, 2002, an evidentiary hearing was held before the hearing judge.

On January 8, 2003, Judge North issued her Findings of Fact and Conclusions of Law and found ⁴⁴³ by clear and convincing evidence that respondent violated MRPC 1.1, 1.2(a), 1.3, 1.4, 8.1 and 8.4(c) and (d). The record was transferred from the hearing judge to our Court for oral argument. Pursuant to Maryland Rule 16-758(b), 4 both parties filed with this Court exceptions to the Judge North’s Findings of Fact and Conclusions of Law. I. Facts Respondent was admitted as a member of the Bar of this Court on June 23, 1998, and maintains an office for the practice of law in Glen Burnie, Maryland.

The Petition for Disciplinary Action in this case was based upon the complaint of Phyllis J. Klingenberg, BC Docket No. 2002-104-2-2. Judge North’s Findings of Fact and Conclusions of Law are, in part, as follows: “FINDINGS OF FACT AND CONCLUSIONS OF LAW “This Court having considered all testimony admitted, all documentary evidence admitted, and arguments of counsel, makes the following written statement of findings of fact and conclusions of law. FACTS “Phyllis Klingenberg (Klingenberg) was in danger of losing her home by foreclosure because she was five months delinquent on her mortgage as of August 2001. Klingenberg, a cashier at Giant Food for thirteen years, received in the mail a letter from Thomas Granger (Respondent) dated August 6, 2001, informing her of certain rights and obligations concerning the impending foreclosure, and of the ⁴⁴⁴ availability of Respondent to provide legal services to ‘stop the sale, and put a “fence” around [her] home.’ After receiving the letter, Klingenberg called Respondent on August 11, 2001, to make an appointment to discuss saving her home.

She spoke directly to Respondent, who told her the costs for filing a petition for bankruptcy, the documents that were needed, and the cost for his representation. Klingenberg told Respondent she did not have much money. She asked about a payment plan and if he would accept $200 to get started on her case. Respondent agreed. “On August 12, 2001 at 3:00 p.m.

Klingenberg and her adult son came from Belair, Maryland to Respondent’s office in Glen Burnie for their initial appointment. They stayed until about 7:00 p.m. According to [complainant] and her son, no one else was at Respondent’s office until fifteen minutes before their departure when Respondent’s administrative assistant, Martha Tsitsiwu (Martha), arrived. According to Martha, she received a phone call from Respondent at 1:00 p.m. on August 12, 2001 asking her to come in.

She arrived at 1:45 p.m. She testified she was in the office prior to the arrival of the Klingenbergs and did not leave until after their departure. On this point, the Court finds the Klingenbergs to be the more credible historians because their visit was not only of dire importance to Klingenberg, but it was a completely unique experience for her and her son. In contrast, Martha testified she assisted Respondent part-time for about two and one-half years.

There is no reason to believe Martha was lying, but there is reason to believe she was mistaken because she testified her only interaction with the Klingenbergs was to copy a receipt for the $200 payment, and she was doing other tasks while Respondent was interviewing Klingenberg. The Klingenbergs testified Martha also provided them with a map to the Trustee’s office. “When Klingenberg came to Respondent’s office on August 12, she brought with her all the documents Respondent requested by telephone the previous day, along with her $200 payment. The foreclosure on her home was scheduled ⁴⁴⁵ for August 28, 2001, a fact which Respondent acknowledges was communicated to him. “According to Klingenberg, Respondent had asked her to bring pay stubs, two years of income taxes, deeds, the settlement sheet on her home, any charge card bills, and all other bills. She brought these documents with her, and Respondent told her that she had brought all necessary papers for him to file the petition and that she was very organized. 5 Klingenberg’s son, who was a sequestered witness, confirmed Respondent made these comments to Klingenberg.

Respondent told her there was no need for her to return. She stated she signed a blank petition while in his office. “Respondent testified that Klingenberg did not bring all the necessary documents and was told she had to come back with additional documents and more money before he could file the petition. He testified at the trial of this matter that he did not want to be pushy about money. However, in Respondent’s answer to interrogatory number 10 he stated ‘Lpjrior to filing of the Chapter 13 Petition, Ms. Klingenberg was told to bring the balance of the fee, 6 proof of additional income, and other documentation needed to complete the petition.’ (emphasis added) In Respondent’s answer to interrogatory number 11, he further stated, ‘Ms. Klingenberg was told, in the presence of her son and Martha, that Respondent would require additional money to complete the petition.

Additionally, Ms Klingenberg was informed that a two hour signing and review meeting would be needed prior to filing.’ “Although Respondent knew Klingenberg’s home would go to foreclosure on August 28, 2001, he never called ⁴⁴⁶ Klingenberg or sent her any letters reminding her of the urgency for her to return with documents and money. Respondent testified at trial that he does not recall the dates Klingenberg was told to come back. Martha testified that an appointment was scheduled for Klingenberg to return with more bills and statements. However, in response to the Court’s question, she stated that no appointment date was set and that Klingenberg was simply told to get in touch with Respondent in the next week with the documents necessary for Respondent to start the case.

The Court finds as a fact that Klingenberg was never told to come back with more documents and money before Respondent would file the petition. 7 The Court further finds that Respondent led Klingenberg to believe that nothing more was required of her prior to his filing of the petition, and she was not told she would see Respondent prior to attending a meeting in Baltimore at the Trustee’s office; a meeting at a location for which she was given a map with directions. “It is not in dispute that Respondent told Klingenberg on the phone on more than one occasion that the petition had been filed and that her home was safe. Even when Klingenberg told Respondent in a telephone conversation that a woman came to her home seeking to buy it, that she had seen her house listed in the newspaper, and after Klingenberg told Respondent she received a card from the person who purchased her home on August 28, 2001, Respondent continued to tell Klingenberg that was impossible and her home was safe. There is no evidence that Respondent, when advised of these facts, ever checked on the status of her case or confirmed that he had, in fact, filed her petition. Respondent never filed Klingenberg’s bankruptcy petition and her house was sold.

At trial Respondent testified that ⁴⁴⁷ he believes he confused Klingenberg’s case with that of the Kalinowski’s, which he had filed the previous Friday. However, Respondent never printed Klingenberg’s petition from the computer until after her house was sold. Klingenberg was the only client with whom respondent met on Sunday, August 12, 2001. “Respondent testified that after the sale of Klingenberg’s home he asked her if she would allow him to try to set aside the sale of her home at no charge to her. He described the various attacks he could make on the notice, auction, or sale of her home, but she refused to allow him to take any further action on her behalf.

She came to his office and collected all her papers. Respondent refunded her $200. “When Respondent was asked on cross-examination to explain what happened in regard to the failure to file the petition,' Respondent stated essentially that he just forgot about this case at some point because his office was busy and the client did not come back. Respondent further stated that had Klingenberg returned, his office would have prepared for the appointment. He left her file on a table, and he only worked on active cases.

He testified her case sort of fell through the cracks. “... [Respondent’s] concentration is in debtor law, which includes the filing of bankruptcy petitions. Ninety percent of his practice is debtor law. “In response to inquiry from bar counsel Respondent wrote a letter to Mr. Grossman dated October 14, 2001. CONCLUSIONS OF LAW “The Petitioner urges the Court to find that Respondent has violated Rules 1.1,1.2,1.3,1.4, 8.1 and 8.4 of the rules of Professional Conduct.... “The Court finds by clear and convincing evidence that Respondent violated Rule 1.1 because he did not provide competent representation to Klingenberg. Since Respondent testified he specializes in debtor law, the Court can reasonably conclude that Respondent possesses the legal ⁴⁴⁸ knowledge and skill to handle Klingenberg’s case.

Respondent also testified to the procedure he would use to file the petition, to time lines, to meeting at the trustee’s office, to the information and documents he would require. Unfortunately, based on the evidence it does not appear that he exercised the thoroughness and preparation reasonably necessary to represent Klingenberg in that following the meeting of August 12, 2001 he took no further action to protect her home from foreclosure. “It also appears by clear and convincing evidence that Respondent violated Rule 1.2(a) because he did not abide by his client’s • decision to immediately file the petition for bankruptcy given the deadline of August 28, 2001. Klingenberg made it clear that her purpose in hiring Respondent was to save her home from foreclosure. Respondent assured her on numerous occasions he would protect her home and 'put a fence around it.’ He did not take the necessary steps to abide by her decision to file for bankruptcy, therefore, he violated his duty in regard to scope of representation. “Rule 1.3 has also been violated because Respondent did not act with reasonable diligence or promptness.

In agreeing to represent Klingenberg, Respondent fully understood that acting promptly was of the utmost importance, yet he did not act promptly or act at all. Due diligence required Respondent, when faced with Klingenberg’s questions about seeing her home listed for sale in the paper, having a potential buyer come to her home, and being advised that someone had purchased her home, to immediately check on her case by confirming receipt by the bankruptcy court of her petition. He never made any inquiries to ensure her petition had been properly filed. “The Court further concludes that Respondent did not keep Klingenberg reasonably informed of the status of her case or respond honestly or, at a minimum, without negligence to her request for information about the security of her ownership in her home, all in violation of Rule 1.4(a). Respondent repeatedly told Klingenberg her home was safe ⁴⁴⁹ and not to worry, and that the petition had been filed when, in fact, none of that was true. “In regard to Rule 1.4(b) Respondent did not, by his own admissions to bar counsel, make clear to Klingenberg how much money would be due and when, what, if any, additional documents were required, and most importantly whether there were any financial, legal, or procedural impediments to the filing of her petition.

If additional documents were needed, and had that fact been made clear to Klingenberg the Court concludes that she most assuredly would have complied given her anxiety over losing her home. Respondent, therefore, violated the requirements of Rule 1.4(b). “The Court regrettably finds that Respondent has also violated Rule 8.1 because he knowingly made a false statement of material fact. Respondent testified that he sent Klingenberg a letter urging her to come in with the documents because time was running out. Had Respondent sent such a letter to Klingenberg, surely he or Klingenberg would have a copy of it.

Klingenberg and Respondent both testified that there was not communication flowing between them August 12, 2001 through August 28, 2001. Both cannot be true. Since no such document was admitted into evidence, the Court finds no letter was sent. “The Court does not find credible Respondent’s statement that the ‘Klingenbergs said they would think about it. They never responded after that.’ Klingenberg’s phone records, which were admitted into evidence, show phone calls from her to Respondent’s office on August 13, August 15, August 22, August 28, 2001 and thereafter. “Also, Respondent’s statement to bar counsel in his October .14, 2001, letter ‘[s]ince she had only paid a small payment, this case was handled differently, it was not labeled as a deadline file, and it was not placed in the new files to be worked,’ flies in the face of his trial testimony where he stated he thought he had filed the petition, but confused her case with the Kalinowski case.

It further conflicts with his trial testimony wherein he stated that he intended to file her petition and she could pay by September ⁴⁵⁰ 12, 2001 with a discount or pay thereafter, without a discount. Respondent has violated Rule 8.1. “For the reasons stated above, Respondent has violated Rule 8.4(c) by misrepresenting material facts to both bar counsel and to Klingenberg regarding the filing of her petition. Moreover, this failure to truthfully report the facts regarding his representation of Klingenberg to bar counsel was conduct prejudicial to the administration of justice [which comprises a violation of Rule 8.4(d) ]. It is bar counsel’s responsibility to investigate allegations made by a client against a lawyer; and being provided with truthful and accurate information is critical to such an investigation.

Accurate information is essential to bar counsel’s decision to take any action justice may require. “All of the above conclusions of law are based on clear and convincing evidence.” [Citations omitted.] [Some footnotes omitted.][Some alterations added.] II. Standard of Review In Attorney Grievance Commission v. Harris, 371 Md. 510, 539-40 , 810 A.2d 457, 474-75 (2002), we recently stated: “It is well established that ‘[t]his Court has original jurisdiction over attorney disciplinary proceedings.’ Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 427 , 795 A.2d 706, 710-11 (2002) (citing Attorney Grievance Comm’n v. Snyder, 368 Md. 242, 253 , 793 A.2d 515, 521 (2002)); Attorney Grievance Comm’n v. Harris, 366 Md. 376, 388 , 784 A.2d 516, 523 (2001); Attorney Grievance Comm’n v. Gavin, 350 Md. 176, 189 , 711 A.2d 193, 200 (1998); Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996); Attorney Grievance Comm’n v. Kent, 337 Md. 361, 371 , 653 A.2d 909, 914 (1995); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992). See also Md. Rule 16-709(b) (stating that ‘[c]harges against an attorney shall be filed on behalf of the [Attorney Grievance] Commission in the Court of Appeals’). Furthermore, ‘[a]s the Court of ⁴⁵¹ original and complete jurisdiction for attorney disciplinary proceedings in Maryland, we conduct an independent review of the record.’ Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763 (2002) (quoting Snyder, 368 Md. at 253 , 793 A.2d at 521 (citing Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997))). “In our review of the record, ‘[t]he hearing judge’s findings of fact will be accepted unless we determine that they are clearly erroneous.’ Garfield, 369 Md. at 97 , 797 A.2d at 763 (quoting Snyder, 368 Md. at 253 , 793 A.2d at 521 (citations omitted)).

See also Dunietz, 368 Md. at 427-28 , 795 A.2d at 711 (‘The hearing judge’s findings of fact “are prima facie correct and will not be disturbed unless clearly erroneous.” ’) (quoting Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1, 21 , 762 A.2d 950, 960-61 (2000)); Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002) (‘Factual findings of the hearing judge will not be disturbed if they are based on clear and convincing evidence.’). We recently reiterated the definition of clear and convincing evidence in Harris, 366 Md. at 389 , 784 A.2d at 523 (quoting Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 79 , 753 A.2d 17, 29 (2000)), when we said: ‘ “The requirement of ‘clear and convincing’ or ‘satisfactory’ evidence does not call for ‘unanswerable’ or ‘conclusive’ evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure-that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term ‘clear and convincing’ evidence means that the witnesses to a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details hereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue.

Whether evidence is clear and con ⁴⁵² vincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.” [Emphasis added.] 359 Md. at 79 , 753 A.2d at 29 (quoting Berkey v. Delia, 287 Md. 302, 320 , 413 A.2d 170, 178 (1980) (citing Whittington v. State, 8 Md.App. 676 , 679 n. 3, 262 A.2d 75 , 77 n. 3 (1970))).’ We recently explained in Dunietz that ‘[a]s to the hearing judge’s conclusions of law, “our consideration is essentially de novo.” ‘ Dunietz, 368 Md. at 428 , 795 A.2d at 711 (quoting Attorney Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm’n v. Briscoe, 357 Md. 554, 562 , 745 A.2d 1037, 1041 (2000))).” Respondent has filed numerous exceptions to the hearing judge’s findings of fact and conclusions of law. After a review of the record, we affirm all of the hearing judge’s findings of fact and all but one of her conclusions of law and hold that they are not clearly erroneous and are based on clear' and convincing evidence. See Garfield, 369 Md. at 97 , 797 A.2d at 763-64 ; Dunietz, 368 Md. at 427-28 , 795 A.2d at 711 ; Monfried, 368 Md. at 388 , 794 A.2d at 100 . We hold that respondent has failed to establish facts by a preponderance of evidence sufficient to overcome all but one of Judge North’s findings and conclusions.

Therefore, we overrule all but one of respondent’s exceptions. Petitioner has filed one general exception in this Court to the hearing judge’s findings of fact and conclusions of law. We sustain petitioner’s exception in the case sub judice.

III

Discussion — The Exceptions Respondent has filed nineteen exceptions to the hearing judge’s findings of fact and conclusions of law. Respondent’s first ten exceptions, however, for all intents and purposes, can be merged into a general exception objecting to different factual findings made by the hearing judge in light of the testimony she heard and the facts presented to her at respondent’s hearing. In his first ten exceptions, excluding his exception number five, respondent has done nothing more than reiterate excerpts of the testimony given at the hearing ⁴⁵³ and/or rewrite excerpts of the hearing judges findings. To support these exceptions respondent proffers little, or most often, no arguments or reasons to substantiate his exceptions; rather he merely emphasizes the contrary testimony that was given or the contrary facts that were presented to the hearing judge.

As indicated supra, we accept the hearing judge’s findings of facts as they are not clearly erroneous and, as such, we shall not disturb her factual findings. Most important, we “keep in mind that it is elementary that the hearing judge ‘may elect to pick and choose which evidence to rely upon.’ “ Attorney Grievance Commission of Maryland v. Sheridan, 357 Md. 1, 17-18 , 741 A.2d 1143, 1152 (1999) (quoting Attorney Grievance Comm’n v. Kemp, 303 Md. 664, 675 , 496 A.2d 672, 677 (1985)). Such deference is given because the hearing judge is in the best position to assess first hand a witness’ credibility. Ultimately, Judge North found, after a full hearing at which the witnesses on whose testimony respondent relies, including his own testimony, were heard and observed, that the testimony of the complainant, Klingenberg, and her son, was more credible than the testimony proffered by respondent, his secretary and his paralegal assistant.

The testimony and facts before the hearing judge constituted clear and convincing evidence for Judge North to find as she did. As a result, we overrule these factual exceptions. We quickly dispense with respondent’s fifth exception to the finding that “Klingenberg’s son, who was a sequestered witness, confirmed Respondent made these comments [about needed documents].” (alteration added). Respondent argues that the hearing judge attempted to “lend more credibility” to the testimony of Klingenberg’s son by noting that he “was a sequestered witness.” All of the witnesses were sequestered.

This argument is without merit. It is clear that the hearing judge was merely stating fact. We see no reason to further comment on this exception and thus, overrule it. ⁴⁵⁴ In the following paragraphs we shall next discuss respondent’s exceptions tailored to the hearing judge’s conclusions of law; they are respondent’s exceptions eleven through nineteen. Respondent’s eleventh exception is to the conclusion that “Since Respondent testified he specializes in debtor law, the Court can reasonably conclude that Respondent possesses the legal knowledge