Attorney Grievance Commission v. Guida

HARRELL, J. I. In this attorney disciplinary action, the Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Joseph M. Guida, Esquire (“Respondent”), charging him with violations arising out of his representation of Mr. and Mrs. Danny Lee Bird. Respondent was charged with violating Rules 1.1 (Competence), 1 1.3 (Diligence), 2 1.4(a) and (b) (Communication), 3 1.5(a) (Fees), 4 1.15(a) ³⁸ (Safekeeping Property), 5 8.1(b) (Bar Admission and Disciplinary Matters), 6 and 8.4(c) and (d) (Misconduct) 7 of the Mary ³⁹ land Rules of Professional Conduct (“MRPC”); 8 and Maryland Rule of Procedure 16-812. 9 ³⁸ A lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation separate from the lawyer’s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded.

Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. ³⁹ The case was assigned by this Court to Judge Emory A. Plitt, Jr. of the Circuit Court for Harford County to conduct an evidentiary hearing and thereafter render findings of fact and recommended conclusions of law with regard to the alleged violations. After a number of extensions of time were granted by this Court, the hearing judge commenced the evidentiary hearing on 13 January 2005 10 and carried it over to 18 March 2005 when it was concluded. On or about 7 April 2005, Judge Plitt filed his 25 March 2005 written opinion in this matter. In the opinion, the hearing judge made the following factual findings, by a clear and convincing evidentiary standard: 11 The Respondent, Joseph M. Guida, was admitted to the Bar of the Court of Appeals on December 1, 1976.

He most recently maintained an office for the practice of law at 608 South Main Street, Bel Air, Maryland 21014. ⁴⁰ Stacia Lynn Bird is the mother of Kaitlyn Stanley (d/o/b 9/25/90) and Jessica E. Stanley (d/o/b 9/12/93). On July 15, 1998, this court issued a Judgment of Absolute Divorce at Mrs. Bird’s request from her then husband, David Lee Stanley. David Lee Stanley is the natural father of Kaitlyn and Jessica. Mrs. Bird was awarded sole custody of Kaitlyn and Jessica.

Subsequent to her divorce from Mr. Stanley, she married Danny Lee Bird. After some discussion, Mr. and Mrs. Bird decided that they would like to petition an appropriate court for Mr. Bird to formally adopt Kaitlyn and Jessica. Mr. and Mrs. Bird contacted Mr. Guida in May of 2002 to possibly retain him to handle the adoption matter. Mr. Guida completed an “Attorney New Matter Memo” on May 8, 2002.

Mr. Guida discussed with them how adoptions are handled and told Mr. and Mrs. Bird that they would need to obtain documents and additional information for him before he could proceed. Mr. and Mrs. Bird obtained the services of Mr. Guida through a legal services plan referral. Mr. and Mrs. Bird formally retained Mr. Guida to handle the adoption matter in August of 2002. They paid Mr. Guida the sum of $735.00 on August 16, 2002.

Previously on July 22, 2002, Mr. Guida sent Mr. and Mrs. Bird a Retainer Agreement which they signed and returned to him. Thus, as soon as the agreed fee was paid, Mr. and Mrs. Bird completed the arrangements with Mr. Guida and he undertook the representation. The gap between July 22, 2002 and August 16, 2002 had to do with the Birds “getting the money together” and obtaining some additional documents for Mr. Guida. Mr. Guida admitted that by early September, 2002, he had received full' payment and all necessary documents.

Mr. Guida told Mr. and Mrs. Bird that the entire adoption process would take anywhere between three and four months. After retaining Mr. Guida, Mrs. Bird would periodically contact his office to inquire as to progress. Between October 1, 2002, and the end of May, 2003, Mrs. Bird and her husband contacted Mr. Guida’s office on numerous occa ⁴¹ sions. These contacts were by telephone and in person.

In addition to contacting Mr. Guida’s office, Mr. and Mrs. Bird contacted the Cecil County Circuit Court Clerk’s Office to check on the status of their case. When they did, they found out there was no case yet filed. On some of these occasions (status contacts), Mr. Guida told the Birds that the case was delayed in the court. He told the Birds that he would check the progress of their case with the court and let them know.

Mr. Guida told the Birds these things knowing full well that he had never filed the action with the court. Sometime in December of 2002, in response to one of the Birds’ many inquiries, Mr. Guida gave Mrs. Bird a document entitled “Judgment of Adoption Pendente Lite.” When he gave this document to Mrs. Bird, he told her that the Judge decided to issue a temporary adoption Order while attempts were made to locate the girls’ natural father. A handwritten notation appears on the bottom of the Order stating that a final Order would be issued in 60-90 days. The Order and the handwritten notation at the bottom purport to bear the signature and initials respectively of the Honorable O. Robert Lidum, Judge of the Circuit Court for Cecil County.

In a word, the purported Order is a fraud and the alleged signature and initials of Judge Lidum are forgeries. Judge Lidum provided an Affidavit to the Attorney Grievance Commission so stating and Mr. Guida has admitted that the document is a fake and that he forged the document and Judge Lidum’ signature and initials. Mr. and Mrs. Bird were very concerned about the matter in March of 2008, three months having passed. Mr. Guida told them that he would check the status with the court.

Thereafter, Mr. Guida failed to return phone calls from the Birds and was not in his office when the Birds would go there to inquire. Finally, in May of 2003, Mr. Guida told the Birds he was going to have surgery but would check with the court concerning the progress of their case and get back to them. He never did. Having received no communication or re ⁴² sponse from Mr. Guida, the Birds filed their complaint with the Attorney Grievance Commission on July 7, 2003.

Two days after the Birds filed their complaint with the Attorney Grievance Commission, Mr. Guida wrote them a letter apologizing for his actions. In that letter of July 9, 2003, he attributed his failures to physical and psychological problems. He enclosed with that letter a check in the amount of $735.00 representing a full refund of the money that the Birds had paid Mr. Guida when they retained him. After being formally notified by the Attorney Grievance Commission of the Birds’ complaint, Mr. Guida ultimately responded to Deputy Bar Counsel, Glenn M. Grossman, by letter dated September 16, 2003.

In his letter to Mr. Grossman, Mr. Guida admitted the truth of the Birds’ complaint. However, in that same letter, Mr. Guida did not explain the fraudulent adoption Order. The formal notification to Mr. Guida from the Attorney Grievance Commission of the Birds’ complaint was a letter to Mr. Guida from Mr. Grossman dated July 13, 2003. Mr. Grossman’s letter directed Mr. Guida to respond within 10 days.

He did not. In fact, Mr. Guida did not respond as directed by Mr. Grossman until September 16, 2003, some two months after the date of Mr. Grossman’s letter. Mr. Guida has also admitted that after receiving the $735.00 payment from the Birds he failed to deposit and maintain those funds in the required trust account. []Mr. Guida admits the truth of what happened. [] When the hearing of January 13, 2005 was adjourned, [his attorney] again told me that Mr. Guida does not dispute the facts and that the real issue in this matter is mitigation. (Internal footnote omitted; some alterations in original).

Based on the facts as found by him (and conceded by Respondent), the hearing judge, citing as authorities Att’y Griev. Comm’n v. Christopher, 383 Md. 624 , 861 A.2d 692 (2003) and Att’y Griev. Comm’n v. Vanderlinde, 364 Md. 376 , 773 A.2d 463 (2000), concluded that, as to the flagship charges, ⁴³ Respondent violated Rules 8.4(c) and (d). He reasoned as follows: [Respondent’s] creation of a fraudulent adoption Order and his forgery of the signature and initials of Judge Lidum and thereafter representing to the Birds that it was a bonafide Order of the Circuit Court for Cecil County is beyond any shadow of a doubt dishonest, fraudulent, deceitful and a gross misrepresentation in violation of Rule 8.4(c).

It is also without doubt, clearly prejudicial to the administration of justice in violation of Rule 8.4(d). Mr. Guida intended that the Birds rely on the fraudulent Order. He then gave the Birds a handwritten note suggesting that they “give this copy to the girls for Christmas.” Respondent also violated Rule 8.4(c) and Rule 8.4(d) by his continuing misrepresentations amounting to outright lies to the Birds concerning the status of their case and his representation to the Birds that the Order was genuine. As to these violations, the violation of Rule 8.4(c) are obvious.

As to Rule 8.4(d), such conduct is clearly prejudicial to the administration of justice. Clients and the public have the right to expect that attorneys will be truthful and, when it comes to court proceedings, that they can rely on what they are told and the purported court documents given to them. One can only imagine the Birds’ reaction when they actually went to the Circuit Court for Cecil County and ultimately found out that nothing had been filed. Mr. Guida’s conduct clearly is a blow to the administration of justice and thus, in the final analysis prejudicial thereto.

(Internal citation omitted). Judge Plitt concluded that Rule 1.3 also had been violated by Respondent, in that “agreeing to represent the Birds, he took no action at all to follow through on the adoption ... a relatively uncomplicated matter.” A violation of Rule 1.15(a) was found because the fee and cost advance paid by the Birds to Respondent was not deposited into a trust account. As to Rules 1.4(a) and (b), the hearing judge found the former to have been violated (the Birds were not kept reason ⁴⁴ ably informed about the status of the adoption initiative), but not the latter (the Birds testified that Respondent explained what was necessary to accomplish the adoption and they both professed to understand what was expected). The hearing judge was not persuaded sufficiently that the claimed violation of Rule 1.5(a) had merit.

Rather, he concluded that the $735.00 flat fee for the adoption undertaken, including court costs, was not unreasonable. Finding a violation of Rule 8.1(b), the hearing judge noted that Respondent conceded that he failed to respond timely to Bar Counsel’s request for information. Finally, the hearing judge found a violation of Rule 1.1 because, although no evidence was presented that Respondent lacked the requisite latent knowledge or skill to handle an adoption of the relatively uncomplex nature of the one sought by the Birds, he clearly did not provide the thoroughness and preparation for the undertaken representation. Turning to the matter of mitigation, which the hearing judge duly noted needed to satisfy only a preponderance of the evidence standard (Md. Rule 16—757(b)), Judge Plitt concluded: Mr. Guida has established by a preponderance of the evidence that prior to the death of his father in 1999, he had a relatively successful law practice.

After the death of his father, he started having difficulty. It was revealed during the testimony on March 18, 2005, that Mr. Guida was the subject of a Conditional Diversion Agreement [with Petitioner] in 2001 having to do with his failure to record a deed for another client. That Conditional Diversion Agreement apparently terminated close to the time that he undertook representation of the Birds. The Birds’ complaint was received by the Attorney Grievance Commission on July 7, 2003.

By letter of July 15, 2003, from Deputy Bar Counsel, Glenn M. Grossman, Mr. Guida was advised of the complaint and directed to provide information. It is clear that at least by June 19, 2003, Mr. Guida knew a complaint was coming. On that date, Mrs. Bird contacted the Circuit Court for ⁴⁵ Cecil County concerning the fraudulent Order. At the request of an employee of the Clerk’s Office, she faxed a copy of the Order to the court.

Almost immediately she was contacted by the Clerk’s Office and advised that the Order was fraudulent and also was advised that she should contact the Attorney Grievance Commission. On that same date, she confronted Mr. Guida concerning the matter via telephone call. At that point, Mr. Guida knew he was in trouble. By letter of July 9, 2003, he returned the Birds’ money to them and admitted what he had done.

He had also had at least a preliminary exchange of correspondence with Mr. Grossman. The significance of this is that shortly thereafter, in August of 2003, Mr. Guida contacted Gary Pasquinelli, Ph.D., a psychologist. Dr. Pasquinelli testified that when he first saw Mr. Guida it was his recollection that he was taking an anti-depressant that had been prescribed for him by his medical doctor.[ 12 ] Dr. Pasquinelli testified that after his initial evaluation, Mr. Guida came under his care for individual psycho-therapy and has been in his care every since on a weekly or bi-weekly basis. Dr. Pasquinelli described Mr. Guida at the time he undertook his therapy as being very negative and experiencing difficulty with fatigue and other symptoms of depression.

Dr. Pasquinelli suggested that Mr. Guida obtain additional medication which he ultimately did. Dr. Pasquinelli’s testimony was relatively brief and centered on his initial evaluation of Mr. Guida and his continuing treatment of him. At the request of Mr. Guida’s counsel, Mr. Guida was evaluated by Dr. Christiane Tellefsen, M.D., a Board Certified Forensic Psychiatrist.[ 13 ] Dr. Tellefsen met with Mr. Guida on March 19, 2004. In addition to her interview with Mr. Guida, Dr. Tellefsen reviewed treatment records of Dr. ⁴⁶ Pasquinelli.

She also interviewed Mr. Guida’s wife and Judith Eagle, Esquire, a local attorney with whom Mr. Guida shares office space. She also reviewed material supplied to her by Mr. Grossman and the previous Conditional Diversion Agreement. Dr. Tellefsen described her mission as to determine whether or not, in her professional opinion, Mr. Guida had any mental disorder or emotional problems affecting his conduct. Dr. Tellefsen was also provided with information concerning the complaint of the Birds.

Dr. Tellefsen described Mr. Guida as a good student who had a good Jesuit education and was intellectually successful. He was also involved in numerous outside activities, talented musically and having a successful practice. Mr. Guida had previously served as an Assistant United States Attorney and had been employed at the law firm of Smith, Somerville and Case prior to setting out on his own. His mother and father came to the United States from Italy and settled in New Jersey where he was born.

Dr. Tellefsen opined that the death of Mr. Guida’s father in 1999 affected him more than he may have realized. Dr. Tellefsen described Mr. Guida as coming from a traditional Italian Catholic Jesuit background and, as the oldest sibling, having to take responsibility of the family upon the death of his father. This included a responsibility, off and on, for taking care of his mother. Following the death of his father, Mr. Guida’s health deteriorated.

He gradually withdrew from the multitude of outside activities in which he was involved and, according to Dr. Tellefsen, started a downward slide into major depression. His depression was compounded by a back injury in 2002 which ultimately required surgery. He experienced a lot of back pain and neurological difficulty. He had to take medication for the back pain.

From her discussion with Mr. Guida, Ms. Eagle, and Mr. Guida’s wife, Dr. Tellefsen determined that Mr. Guida, at some point along the depression scale, started to in essence lose control of his practice. He started staying away from ⁴⁷ the office and not following up on inquiries from clients. He gained about 100 pounds in weight, had no energy, had back pain, and became withdrawn. It was Dr. Tellefsen’s opinion that Mr. Guida’s depression became worse in June of 2002, some months before his surgery.

Dr. Tellefsen learned that Mr. Guida became the subject of many complaints from his clients concerning his lack of attention. According to Dr. Tellefsen, Mr. Guida basically ignored his practice. Mr. Guida himself testified that he lost important clients. He was terminated as a participant in a pre-paid legal services plan as a result of the Birds’ complaint.

Dr. Tellefsen agreed with Dr. Pasquinelli that Mr. Guida had suffered from severe depression during the time he was representing the Birds. In response to questions from Bar Counsel on cross-examination, Dr. Tellefsen testified that she could not find any indication of any dishonesty on Mr. Guida’s part. It was Dr. Tellefsen’s opinion that during the course of his representation of the Birds, Mr. Guida suffered from major depression complicated by his back troubles and other medical problems (including his obesity) and that the combination of these things severely impaired his ability to maintain his functioning and his law practice. As previously noted, by letter of July 9, 2003, Mr. Guida returned the Birds money to them and apologized for his actions.

He expressed remorse in that letter and expressed remorse when he testified before me on March 18, 2005. The question for me then is do I find by a preponderance of the evidence that Mr. Guida has established mitigation? Based on the uncontradicted testimony of Doctors Tellefsen and Pasquinelli, I find that Mr. Guida has established mitigation. That is not the end of it.

With regard to the violations of Rules 1.3, 1.4, and 8.4, I find that he has not established mitigation by a preponderance of the evidence. Dr. Tellefsen was asked very specifically about the fraudulent adoption Order and the forging of Judge Lidum’s ⁴⁸ signature. Dr. Tellefsen said that she thought that Mr. Guida saw the forgery as a way to satisfy the Birds. While she characterized Mr. Guida’s depression as a “strong influence” on his actions, Dr. Tellefsen testified that in her professional opinion, Mr. Guida had created the fraudulent document and forged Judge Lidum’s signature knowing exactly what he was doing and knowing that it was wrong and deceitful.

Dr. Tellefsen also testified that Mr. Guida knew that he had not followed through on the actions he was supposed to take for the Birds. Amazingly enough, Mr. Guida testified that he had no recollection of preparing the fraudulent Order. When confronted with the facts, Mr. Guida told me that he “clearly did it.” Mr. Guida said that he was having trouble forming a mental picture of preparing the fraudulent Order and could not believe that he had done it. Mr. Guida was evasive about it when cross-examined by Mr. Grossman and asked questions by me.

At one point, I asked Mr. Guida directly if he was telling me under oath that he had absolutely no recollection of preparing the Order and forging Judge Lidum’s signature. His response was equivocal at best. He wanted me to believe that he had blocked it out of his mind. Mr. Guida was a good historian with regard to all of the events surrounding his representation of the Birds with the exception of the fraudulent Order.

He also knew that he was ignoring them. Based on listening to the witnesses, evaluating their testimony and considering all of the facts, Mr. Guida knew exactly what he was doing when he prepared the fraudulent Order and knew exactly what he was doing when he ignored and then lied to the Birds about the matter. I also do not find that he has established by a preponderance of the evidence mitigation with regard to his handling of the money paid by the Birds. It is a simple mechanical matter to appropriately deposit funds paid by a client.

His depression and back troubles had absolutely no affect on his failure to properly deposit money. His medical and psychological problems do in fact mitigate by a preponderance of the evidence his failure to ⁴⁹ promptly respond to bar Counsel’s inquiry. The inquiries from Bar Counsel came about the time that he began his treatment with Dr. Pasquinelli. He was in severe depression at that time and had been ignoring his practice.

(Internal footnotes omitted; some alterations to original). Petitioner filed a written exception to Judge Plitt’s conclusion that a violation of Rule 1.5(a) had not been established by clear and convincing evidence. Conceding that a $735.00 fee, in the abstract, was not unreasonable for the adoption undertaking in this case, Bar Counsel nonetheless argued, citing Atty. Griev.

Comm’n v. Monfried, 368 Md. 373, 394 , 794 A.2d 92, 104 (2002), that the fee was unreasonable because Respondent took no action to follow through properly on the undertaking. As to sanction, Bar Counsel urges disbarment in light of the “unmitigated intentional dishonesty” revealed by the facts underlying the violations of Rules 8.4(c) and (d) primarily, but also taking into account the violations of Rules 1.1, 1.3, 1.4, 1.15(a), and 8.1(b). Respondent also filed written exceptions to Judge Plitt’s findings of fact and conclusions of law. He generally excepted to each determination adverse to his interests on the basis that: [Respondent’s] position has always been that the conduct occurred, but that it did not legally amount to the Violations alleged because his most serious and utterly [debilitating] mental and physical and health conditions were the root cause of the misconduct and they rendered him utterly unable to conform his conduct in accordance with the law and with Maryland Rules of Professional Conduct.

Also styled as a “general” exception, Respondent, believing that his mitigation evidence in all respects met the preponderance of the evidence standard, complained that it was illogical for Judge Plitt to accept that evidence as mitigating the Rule 8.1(b) violation, but not the other violations. More specifically, Respondent excepted to the findings and conclusions relative to the violation of Rule 1.15(a). His basis was that the fixed fee was earned when paid and, thus, properly deposited ⁵⁰ directly into his office account. He also took exception to the findings and conclusions as to the Rule 1.1 violation because he did not deem his failure to follow through or prepare as bearing on competence.

Finally, Respondent pleaded that his 30 years at the Bar deserved something less than disbarment. Reiterating his argument that the mitigation evidence proved that he was ill at the time of the unchallenged factual events, he urged that he did what he did solely to “provide his clients’ children with a Christmas present,” albeit in the form of a fraudulent adoption decree.

II

We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous. Attorney Grievance Comm’n v. Stolarz, 379 Md. 387, 397 , 842 A.2d 42, 47 (2004); Attorney Grievance Comm’n v. Culver, 371 Md. 265, 274 , 808 A.2d 1251, 1256 (2002). This deference accorded to the hearing judge’s findings is appropriate, in part, because the fact finder is in the best position to assess the demeanor-based credibility of a witness. Stolarz, 379 Md. at 398 , 842 A.2d at 48 ; Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 17 , 741 A.2d 1143, 1152 (1999); see also Md. Rule 16-759(b)(2)(B) (“The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”).

The hearing judge is permitted to “pick and choose which evidence to rely upon” from a conflicting array when determining findings of fact. Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000) (Citation omitted). In deciding whether the hearing judge’s findings of fact are clearly erroneous where exceptions are filed, this Court looks first to Md. Rule 16-759(b)(2)(B), which states that “the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(b).” Under Md. Rule 16-757(b), where exceptions to findings of fact are filed by Bar Counsel, we consider that Bar Counsel, before the hearing judge, “ha[d] the burden of proving the averments of the petition by clear ⁵¹ and convincing evidence.” See also Attorney Grievance Comm’n v. DiCicco, 369 Md. 662, 681 , 802 A.2d 1014, 1025 (2002) (“Clear and convincing evidence must be more than a mere preponderance but not beyond a reasonable doubt.”) (Internal quotations omitted) (Citations omitted). Thus, where the exceptions are filed to findings that were favorable to the Respondent attorney, under Md. Rule 16-757(b), we consider also that the attorney “who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence.” 14 See also Attorney Grievance Comm’n v. Garfield, 369 Md. 85 , 797 A.2d 757, 765 (2002) (stating that “an attorney in a disciplinary proceeding need only establish factual matters in defense of an attorney’s position by the preponderance of the evidence, including whether mitigating circumstances existed at the time of the alleged misconduct”).

III

Petitioner’s sole exception, as noted previously, is to the hearing judge’s failure to conclude that a violation of Rule 1.5(a) occurred when Respondent accepted a $735.00 fee, but did not perform the services for which the fee was collected. We sustain the exception. ⁵² A situation similar to the one at hand was presented in Attorney Grievance Comm’n v. Monfried, 368 Md. 373 , 794 A.2d 92 (2002). In that case, the attorney collected a flat fee of $1,000 to: meet with the client at the facility where he was incarcerated; obtain a hearing as to the parole revocation that caused him to be incarcerated; and, represent him at the hearing. Monfried, 368 Md. at 382 , 794 A.2d at 97 .

Although the attorney did arrange, via telephone, for a hearing to be scheduled, he did not meet with his client, communicate to him or his family the date of the hearing, or attend the hearing. Monfried, 368 Md. at 383-84 , 794 A.2d at 97-98 . The hearing judge in Monfried neglected to conclude whether the attorney violated Rule 1.5(a), as charged, by collecting a fixed fee, but not performing the services. Monfried, 368 Md. at 390 , 794 A.2d at 101-02 .

Bar Counsel, on exception, argued to this Court that the fee, in light of the services actually rendered, was unreasonable. The attorney responded that it was a fair fee. Id. The Court re-characterized Bar Counsel’s argument as one that the fee was unearned.

Monfried, 368 Md. at 393 , 794 A.2d at