Attorney Grievance Commission v. Haley

WATTS, J. This attorney discipline proceeding involves a lawyer who, among other things, failed to: (1) deposit unearned legal fees into an attorney trust account; (2) refund unearned legal fees to clients following termination of representation; (3) sufficiently and timely respond to clients’ reasonable inquiries; and (4) competently and diligently represent his clients’ interests. ⁶⁶¹ Between October 2011 and June 2013, Kenneth Haley (“Haley”), Respondent, a member of the Bar of Maryland, represented six clients in various matters. All six clients filed complaints against Haley with the Attorney Grievance Commission (“the Commission”), Petitioner. On May 15, 2014, on the Commission’s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Haley, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.2(a) (Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 1.5(a) (Fees), 1.7(a) (Conflict of Interest), 1.15(a), 1.15(c), and 1.15(d) (Safekeeping Property), 1.16(d) (Terminating Representation), 8.4(e) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), 8.4(a) (Violating the MLRPC), and Md. Code Ann., Bus. Occ. & Prof.

(1989, 2010 Repl. Vol.) (“BOP”) § 10-306 (Misuse of Trust Money). On September 29, 2014, this Court designated the Honorable Richard S. Bernhardt (“the hearing judge”) of the Circuit Court for Howard County to hear this attorney discipline proceeding. On November 17, 18, and 19, 2014, the hearing judge conducted a hearing. 1 On December 29, 2014, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Haley had violated MLRPC 1.1, 1.2(a), 1.3, 1.4, 1.5(a), 1.7(a), 1.15(a), 1.15(c), 1.16(d), 8.4(c), 8.4(d), 8.4(a), and BOP § 10-306. 2 On June 3, 2015, we heard oral argument.

On June 5, 2015, we disbarred Haley. See Attorney Grievance Comm’n v. ⁶⁶² Haley, 443 Md. 227 , 115 A.3d 1260 (2015) (per curiam). We now explain the reasons for Haley’s disbarment. BACKGROUND The hearing judge found the following facts, which we summarize.

On May 30, 2007, this Court admitted Haley to the Bar of Maryland. Haley worked for various federal agencies. In 2010, Haley became a solo practitioner in Columbia, Maryland. Haley’s primary areas of practice included family law, criminal law, and labor law.

Before he performed any legal services, Haley received a flat fee from each of the six clients who ended up filing complaints against him with the Commission. In each case, without his client’s consent, Haley deposited the unearned fee into an operating account instead of an attorney trust account. Haley’s professional relationship with each of the six clients followed a similar pattern. At the beginning of the representation, Haley communicated appropriately with the client.

As the representation progressed, Haley became less responsive to the client’s inquiries. Haley’s final communications with the client usually involved an argument, during which Haley would exhibit hostility and blame the client for the breakdown of the attorney-client relationship. Vemita Ali Matter In 2012, on her own behalf, Vernita Ali (“Ali”) filed a motion to modify custody in the Circuit Court for Baltimore City. A hearing on the motion to modify was scheduled for July 31, 2012.

On June 7, 2012, Ali and Haley executed an attorney-client agreement, and Ali paid Haley a $2,800 flat fee. Without Ali’s consent, Haley deposited the fee into an operating account instead of an attorney trust account. Haley and Ali agreed that Haley would enter his appearance on Ali’s behalf, file a supplemental motion to modify, and represent Ali at the hearing on the motion to modify. Haley did not perform any of these tasks.

In June and July 2012, ⁶⁶³ Ali attempted to contact Haley, who did not respond. At some point before July 10, 2012, Ali and Haley spoke via telephone; Ali asked about the case’s status; an argument ensued; and Haley hung up on Ali. On July 10, 2012, Ali terminated the representation and requested a full refund of the fee. On July 31, 2012, Ali appeared on her own behalf at the hearing on the motion to modify, and did not prevail.

In April 2013, Ali filed a complaint against Haley with the Commission. Afterward, Haley refunded Ali $2,307.56 of the fee. Keith Boyd Matter On October 10, 2011, Keith Boyd (“Boyd”) retained Haley to represent him in a child custody case. Boyd paid Haley a $2,800 flat fee.

Without Boyd’s consent, Haley deposited the fee into an operating account instead of an attorney trust account. On February 23, 2012, on Boyd’s behalf, Haley filed a motion to modify custody in the Circuit Court for Baltimore City. Haley and Boyd appeared at a hearing at which Haley repeatedly disregarded Boyd’s instructions. For example, Haley disregarded Boyd’s instruction to introduce Boyd’s child’s school attendance records; Haley relied on opposing counsel’s assertion that the records were inaccurate.

As another example, Haley disregarded Boyd’s instruction to dispute opposing counsel’s allegation that Boyd had been charged with acts of domestic violence. On or about October 1, 2012, Boyd terminated the representation. Haley failed to refund Boyd any of the fee. Tina Myers Matter On May 17, 2012, Tina Myers (“Myers”) retained Haley to represent her in an appeal of a ruling on custody.

Myers paid Haley a $3,000 flat fee. Without Myers’s consent, Haley deposited the fee into an operating account instead of an attorney trust account. ⁶⁶⁴ On June 14, 2012, on Myers’s behalf, Haley timely filed a “Line, Notice and Leave to Appeal” in the Circuit Court for Baltimore City. Between May 17, 2012 and July 2, 2012, Myers e-mailed Haley on several occasions to ask about the appeal’s status; Haley responded to only one of Myers’s emails. On July 2, 2012, Myers decided to abandon the appeal and pursue modification of custody instead.

Haley failed to timely file a motion to modify custody and failed to refund Myers any of the fee. Demetrius McClarty Matter On March 9, 2012, Demetrius McClarty (“McClarty”) retained Haley to represent him in a matter concerning modification of joint custody and guardianship. McClarty paid Haley a $2,600 flat fee. Without McClarty’s consent, Haley deposited the fee into an operating account instead of an attorney trust account.

On March 28, 2012, Haley and McClarty met to review a motion to modify custody and guardianship that Haley had written. The motion contained several errors, including misspellings of McClarty’s name and incorrect uses of pronouns. On April 13, 2012, Haley filed the motion to modify custody and guardianship in the Circuit Court for Anne Arundel County. The motion to modify custody and guardianship included a certificate of service with an incorrect address for McClarty’s ex-wife.

Additionally, Haley failed to include with the motion to modify custody and guardianship a domestic case information report, as required by Maryland Rule 2-111 (Process — Requirements Preliminary to Summons). On April 16, 2012, the Circuit Court for Anne Arundel County ordered Haley to file a domestic case information report. Haley failed to comply with the order. On May 24, 2012, the Circuit Court for Anne Arundel County dismissed the motion to modify custody and guardianship without prejudice.

Haley failed to inform McClarty of the dismissal. On or about June 26, 2012, McClarty terminated the representation. On June 29, 2012, without McClarty’s consent, and despite having reason to know that McClarty had terminated ⁶⁶⁵ the representation, Haley filed in the Circuit Court for Anne Arundel County a second motion to modify custody and guardianship and an answer to McClarty’s ex-wife’s motion for contempt. Haley did not provide McClarty a copy of either filing.

On July 23, 2012, Haley filed in the Circuit Court for Anne Arundel County a motion to strike his appearance. Haley failed to provide McClarty with five days’ written notice of his intent to withdraw, as required by Maryland Rule 2-132 (Striking of Attorney’s Appearance). And, Haley failed to refund McClarty any of the fee. Eric Hemphill Matter In 2012, Eric Hemphill (“Hemphill”) retained Haley to represent him in a custody case.

Hemphill informed Haley that he wanted joint legal and shared physical custody of his two children. Hemphill paid Haley a $2,600 flat fee. Without Hemphill’s consent, Haley deposited the fee into an operating account instead of an attorney trust account. On February 28, 2012, Haley filed in the Circuit Court for Baltimore County a motion to modify custody.

Despite Haley’s knowledge that Hemphill wanted joint legal and shared physical custody, the motion to modify custody stated that Hemphill requested primary physical custody. Hemphill’s children’s mother filed a counter-motion to modify custody. The Circuit Court for Baltimore County conducted a scheduling conference, at which Haley failed to appear. On November 13, 2012, Hemphill and his children’s mother attended a mediation, at which Haley failed to appear; Haley also failed to prepare Hemphill for the mediation.

On April 29, 2013, Hemphill’s children’s mother moved for sanctions, alleging that Hemphill had made deficient discovery disclosures. Haley had failed to communicate with Hemphill about discovery. On May 6, 2013, the Circuit Court for Baltimore County conducted a hearing, at which Haley failed to appear. On June 13, 2013, the Circuit Court for Baltimore County conducted another hearing, at which Haley moved to strike his appearance; the Circuit Court for Baltimore County ⁶⁶⁶ granted the motion to strike, and Hemphill proceeded self-represented.

The Circuit Court for Baltimore County: dismissed the motion to modify because of the deficient discovery disclosures; granted the counter-motion to modify, thus reducing Hemphill’s visitation and increasing his monthly child support payment; and ordered Hemphill to pay attorney’s fees for his “disturbing ... recalcitrance in responding to discovery” requests. Haley did not refund Hemphill any of the fee, and failed to provide Hemphill with his file after termination of the representation. Kim Glaudé Matter In or about 2011, Haley met Kim Glaudé (“Glaudé”) through a dating website. Haley and Glaudé chatted online and met for dinner on one occasion; Haley and Glaudé planned, but ended up cancelling, a second date.

On February 8, 2012, Glaudé retained Haley to represent her in a matter concerning an Equal Employment Opportunity Commission (“EEOC”) complaint against her former employer. At that point, Glaudé and Haley had not communicated for approximately one year. Glaudé paid Haley a $4,500 flat fee. Without Glaudé’s consent, Haley deposited the fee into an operating account instead of an attorney trust account.

In March 2012, Haley and Glaudé met at Haley’s law office to discuss Glaudé’s case. Haley took Glaudé to a back room and kissed her. Glaudé immediately objected. On March 28, 2012, Haley failed to appear at a conference with an EEOC investigator; Haley also failed to reschedule the conference.

On August 17, 2012, Glaudé telephoned Haley and left a voicemail to ask about her case’s status. Haley texted Glaudé to state: “I am sorry, I owe you some lips for that. [Yo]u decide where.” 3 In a letter dated October 18, 2012, Haley terminated the representation. Haley did not refund Glaudé any of the fee. ⁶⁶⁷ STANDARD OF REVIEW Neither party meaningfully excepts to the hearing judge’s findings of fact; 4 thus, we “treat the [hearing judge’s] findings of fact as established^]” Md. R. 16-759(b)(2)(A). In an attorney discipline proceeding, this Court reviews without deference a hearing judge’s conclusions of law.

See Md. R. 16 — 759(b)(1) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.”). DISCUSSION (A) Conclusions of Law Neither party meaningfully excepts to the hearing judge’s conclusions of law.

For the below reasons, we overrule the ⁶⁶⁸ hearing judge’s conclusion that Haley violated MLRPC 1.7(a), but uphold the rest of the hearing judge’s conclusions of law. MLRPC 1.1 (Competence) “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness!,] and preparation reasonably necessary for the representation.” MLRPC 1.1. A lawyer violates MLRPC 1.1 by “failing] to maintain [ ] funds in a[n attorney] trust account” without a client’s consent to some other arrangement.

Attorney Grievance Comm’n v. Maignan, 390 Md. 287, 296-97 , 888 A.2d 344, 349 (2005). Here, clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.1 in representing Ali, Boyd, Hemphill, McClarty, and Myers. 5 Without his clients’ consent, Haley deposited unearned fees into an operating account instead of an attorney trust account. Additionally, Haley failed to use the thoroughness and preparation reasonably necessary to represent Ali, Hemphill, and McClarty. Haley failed to prepare and submit any pleadings or take any action in furtherance of Ali’s case.

Haley failed to attend, and prepare Hemphill for, a scheduling conference and a mediation, and also failed to adequately respond to discovery requests. In McClarty’s ease, the motion to modify custody and guardianship included a certificate of service with an incorrect address for McClarty’s ex-wife; Haley also failed to include with the motion a domestic case information report. MLRPC 1.2(a) (Allocation of Authority Between Client and Lawyer) “[A] lawyer shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued.” MLRPC 1.2(a). ⁶⁶⁹ Here, clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.2(a) in representing Ali, Boyd, Hemphill, and McClarty. 6 Haley failed to abide by his clients’ decisions concerning the representations’ objectives and/or failed to consult -with his clients. Haley failed to prepare and submit any pleadings or take any action in furtherance of Ali’s case.

Haley disregarded Boyd’s instructions at a hearing. Despite Haley’s knowledge that Hemphill wanted joint legal and shared physical custody, Haley filed a motion to modify custody that stated that Hemphill requested primary physical custody. In McClarty’s case, Haley filed a motion to modify custody and guardianship, but failed to include with the motion a domestic case information report. MLRPC 1.3 (Diligence) “A lawyer shall act with reasonable diligence and promptness in representing a client.” MLRPC 1.3.

A lawyer violates MLRPC 1.3 by “tak[ing] no action whatsoever in representing a client[.]” Attorney Grievance Comm’n v. Gage-Cohen, 440 Md. 191, 198 , 101 A.3d 1043, 1047 (2014) (citation and internal quotation marks omitted). “A lawyer violates MLRPC 1.3 by failing to appear for a scheduled court date without good reason.” Attorney Grievance Comm’n v. Shuler, 443 Md. 494 , 504 n. 10, 117 A.3d 38 , 45 n. 10 (2015) (brackets, citation, and internal quotation marks omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.3 in representing Ali, Hemphill, and McClarty. 7 Haley took no action whatsoever to advance Ali’s interests. Haley failed to appear at a scheduling conference and a mediation in Hemphill’s case. Haley failed to inform McClarty that, due to his failure to file ⁶⁷⁰ a domestic case information report, the Circuit Court for Anne Arundel County dismissed the motion to modify custody and guardianship.

MLRPC 1.4(a) (Communication) “A lawyer shall ... (2) keep the client reasonably informed about the status of the matter; [and] (3) promptly comply with reasonable requests for information[.]” MLRPC 1.4(a) (paragraph break omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.4(a) in representing Ali, Hemphill, McClarty, and Myers. 8 Ali and Hemp-hill attempted to contact Haley about the status of their cases; Haley failed to respond. Haley failed to inform McClarty that, due to Haley’s failure to file a domestic case information report, the Circuit Court for Anne Arundel County dismissed McClarty’s motion to modify custody and guardianship.

Myers e-mailed Haley on several occasions to ask about her case’s status; Haley responded to only one of Myers’s e-mails. MLRPC 1.5(a) (Fees) “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” MLRPC 1.5(a). “The reasonableness of a fee is not measured solely by examining its value at the outset of the representation; indeed[,] an otherwise-reasonable fee can become unreasonable if the lawyer fails to earn it.” Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 224 , 46 A.3d 1169, 1178 (2012) (per curiam). Here, clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.5(a) in representing Ali, Glaudé, Hemphill, McClarty, and Myers. 9 Haley charged his clients fees that, though not necessarily unreason ⁶⁷¹ able at the beginning of the representation, became unreasonable when Haley retained all or a portion of the fees after failing to perform the legal services required to earn the retained amounts. For example, Ali paid Haley $2,800, of which Haley refunded $2,307.56.

Glaudé paid Haley $4,500, none of which Haley refunded. Hemphill paid Haley $2,600, none of which Haley refunded. McClarty paid Haley $2,600, none of which Haley refunded. Myers paid Haley $3,000, none of which Haley refunded.

The hearing judge found that Haley failed to perform the legal services required to earn the retained amounts, and discredited the accuracy of invoices that Haley produced in an attempt to establish that the fees were reasonable. 10 MLRPC 1.7(a) (Conflict of Interest) MLRPC 1.7(a) states, in pertinent part: [A] lawyer shall not represent a client if the representation involves a conflict of interest. A conflict of interest exists if: (1) the representation of one client will be directly adverse to another client; or (2) there is a significant risk that the representation of one or more clients will be materially limited by the lawyer’s responsibilities to another client, a former client[,] or a third person[,] or by a personal interest of the lawyer. In Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 35 , 69 A.3d 1121, 1141 (2013), this Court held that a lawyer violated MLRPC 1.7(a) by representing a client with whom she had a sexual relationship. It was undisputed that, once the lawyer’s relationship with her client became intimate and they moved in together, the lawyer had a “personal interest” in the case.

Id. at 33, 24 , 69 A.3d at 1139, 1134 . Specifically, the lawyer, ⁶⁷² who was representing her client in a custody matter, “had a personal interest in the visitation and custody arrangement____[and] had a personal interest in the amount, if any, that [her client] would be required to pay in child support[.]” Id. at 24 , 69 A.3d at 1134 . Here, we are not persuaded that clear and convincing evidence supports the hearing judge’s conclusion that Haley violated MLRPC 1.7(a) in representing Glaudé. Haley and Glaudé met through a dating website.

Haley and Glaudé chatted online and went on one date; they planned, but ended up cancelling, a second date. Approximately one year later, Glaudé retained Haley. During a meeting, Haley kissed Glaudé; Glaudé objected. Later,