Attorney Grievance Commission v. Harmon

McDonald, j. The Attorney Grievance Commission (“Commission”) charged Anthony Maurice Harmon with violating several provisions of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), including MLRPC 1.3 (duty to act with reasonable diligence and promptness), MLRPC 1.4 (duty to inform and consult with client and comply with requests for information), MLRPC 1.5(a) (prohibition against unreasonable fees), MLRPC 1.15 (duty to keep safe funds of clients or third parties), MLRPC 8.1(b) (duty to respond to lawful demand for information from disciplinary authority), and MLRPC 8.4(d) (prohibition against conduct prejudicial to the administration of justice). The alleged violations all arose during Mr. Harmon’s representation of three clients. Pursuant to Maryland Rules 16-752(a) and 16-757, we referred the matter to Judge Toni E. Clarke of the Circuit Court for Prince George’s County to conduct a hearing and to provide findings of facts and recommended conclusions of law.

Based on the facts concerning the violations that were deemed admitted and the evidence concerning mitigation presented at the hearing, the hearing judge concluded that Mr. Harmon had violated MLRPC 1.3, 1.4, 1.5(a), and 8.1(b), and that no ³⁰⁹ mitigating circumstances existed. 1 No exceptions were filed by either party to the hearing judge’s findings and conclusions. We cannot say that the hearing judge’s findings of fact were clearly erroneous; those findings, though summary in nature, lead inexorably to the conclusion that Mr. Harmon committed the violations found by the hearing judge. In the absence of any exceptions, our task is to determine the appropriate sanction in this case. Bar Counsel recommends that Mr. Harmon be indefinitely suspended for his violations, while Mr. Harmon urges us to consider suspension for a definite period to run concurrently with the sanction that was recently imposed for his prior violations. 2 For the reasons stated below, we agree with Bar Counsel that an indefinite suspension is in order.

Procedural History On August 9, 2012, pursuant to the parties’ request, the hearing judge postponed the evidentiary hearing until October 18, 2012. 3 At the August proceeding, she also ruled that the facts in Bar Counsel’s Request for Admission would be deemed admitted because Mr. Harmon’s Answer to the Re ³¹⁰ quest for Admission was unresponsive, it was not filed within 30 days as required under Maryland Rule 2 — 424(b), and he did not file a request for an extension of time. 4 See Maryland Rule 2-424(c) (“If the court determines that an answer does not comply with the requirements of this Rule, it may order either that the matter is admitted or that an amended answer be served.”). The evidentiary hearing on October 18, 2012 was devoted solely to the existence of mitigating circumstances and the Commission’s allegation that Mr. Harmon had failed to respond to Bar Counsel’s lawful requests for information during its investigations. Jeffrey Janofsky, M.D., an expert in the area of forensic psychiatry, and Investigator William Ramsey testified on behalf of the Commission. Mr. Harmon testified that difficulties in his personal life and the resulting emotional turmoil constituted mitigating factors, but did not call character witnesses or offer expert testimony or documentation.

Background Mr. Harmon was admitted to the Maryland Bar in 1999. During the time period relevant to this proceeding, he maintained an office in Prince George’s County. The alleged violations stem from the complaints of three clients concerning his representation of them. The hearing judge deemed the facts described below to be admitted as to those matters, and made additional findings concerning Mr. Harmon’s failure to cooperate with Bar Counsel and the lack of mitigating circumstances.

The Christian Complaint In August 2008, Alexis Christian paid $2,500 to retain Mr. Harmon to represent her in an uncontested divorce and a ³¹¹ related marital property settlement. Subsequently, she paid additional funds for costs and filing fees. During his representation, Mr. Harmon failed to adequately inform Ms. Christian concerning the terms of the fee agreement and the manner in which the fee would be calculated; failed to keep her informed regarding the accrual of fees; and charged her an unreasonable and excessive fee. He also failed to act with reasonable diligence and promptness in obtaining service of process on her husband, pursuing the divorce on her behalf, and responding to her requests for information.

After Ms. Christian filed a complaint with the Commission, he failed to respond to Bar Counsel’s demands for information — in particular, an accounting of the fees he charged Ms. Christian. The Lawrence Complaint On or about July 20, 2007, Steven Lawrence retained Mr. Harmon to represent him in a divorce and related child custody and support matter. Mr. Lawrence signed a retainer agreement, agreeing to pay a $2,500 retainer fee and $200 per hour for Mr. Harmon’s services. He paid the retainer fee in installments over the next two and one-half months.

Mr. Harmon represented Mr. Lawrence until his divorce became final on April 21, 2009. During his representation, Mr. Harmon failed to provide Mr. Lawrence an accounting for the use of the $2,500 retainer fee, and to keep him informed, including failing to answer his requests for information concerning the fee accrual. After the representation had ended, Mr. Harmon failed to respond to Mr. Lawrence’s requests for information regarding the fees. Mr. Harmon also failed to respond to Bar Counsel’s demand for information during its investigation.

The Proctors’ Complaint On or about August 13, 2009, Mr. Harmon agreed to represent Timothy and Natalie Proctor (the “Proctors”) in an employment matter in the United States District Court for the District of Maryland, even though he was not admitted to practice before that court. Furthermore, Mr. Harmon mis ³¹² represented to the Proctors that he was experienced in employment law. During his representation, Mr. Harmon failed to act with reasonable diligence and promptness and failed to respond to the Proctors’ demands for information concerning the case. In particular, Mr. Harmon failed to inform the Proctors about the time and location of a scheduled mediation in a timely manner.

In addition, Mr. Harmon failed to keep the Proctors informed about the accrual of attorney’s fees, and failed to respond to Bar Counsel’s demand for information during its investigation. Bar Counsel’s Requests for Responses to Complaints Bar Counsel sent a letter notifying Mr. Harmon of Ms. Christian’s complaint on July 16, 2010, and requesting a written response within 15 days. Bar Counsel subsequently sent a second letter, again requesting a written response within 10 days. Approximately two months later, on September 15, 2010, Bar Counsel received Mr. Harmon’s response, dated July 31, 2010; Mr. Harmon represented that he had sent the response on August 1, 2010.

Bar Counsel sent a letter notifying Mr. Harmon of Mr. Lawrence’s complaint on November 12, 2010 and requesting a written response within 15 days. Mr. Harmon failed to respond to the request. Bar Counsel sent a letter notifying Mr. Harmon of the Proctors’ complaint on October 6, 2010, and requesting a written response within 15 days; this letter was followed by a second letter on November 3, 2010, and a third letter on January 5, 2011. Mr. Harmon finally replied to the third letter on January 25, 2011.

Bar Counsel’s Requests for Production of Files and Financial Records On November 22, 2010, Investigator Ramsey interviewed Mr. Harmon in regard to Ms. Christian’s complaint, and asked Mr. Harmon to produce the financial records of the fees he received from Ms. Christian in 2008. Mr. Harmon did not comply with this request. ³¹³ On December 14, 2010, Assistant Bar Counsel and Investigator Ramsey met with Mr. Harmon and asked him to provide records of the payments he received from both Ms. Christian and Mr. Lawrence. This request was followed by Bar Counsel’s letters of December 16, 2010 and January 31, 2011, requesting Mr. Harmon to either provide the records or specify what records he was unable to provide. Mr. Harmon never responded.

On April 5, 2011, Investigator Ramsey met with Mr. Harmon and requested that he provide a copy of the Proctors’ file. Because Mr. Harmon did not comply with this request, Investigator Ramsey scheduled a meeting at Mr. Harmon’s office on June 27, 2011. Investigator Ramsey arrived at Mr. Harmon’s office for the scheduled meeting but left after Mr. Harmon failed to appear more than a half-hour after the appointed time. On July 14, 2011, Mr. Harmon finally delivered the copies of the files of the three complaining clients, but he never produced the requested financial records of the payments he received from Ms. Christian and Mr. Lawrence.

Bar Counsel’s Requests for Production of Medical Records On August 17, 2012, Bar Counsel sent a letter informing Mr. Harmon that he should contact the Commission’s expert psychiatrist, Dr. Jeffrey Janofsky, on or before August 30, 2012 to arrange an appointment. Bar Counsel asked Mr. Harmon to provide “medical records from [his] primary care physician, any other physicians who treated [him] within the last 4 years and any hospitalizations within the last 4 years,” as well as “records, including treatment notes,” from Dr. Raymond Carnegie and Mr. Lloyd Williams. 5 Dr. Janofsky met with Mr. Harmon on September 11, 2012. However, Mr. Harmon did not bring the requested records for ³¹⁴ Dr. Janofsky’s review. During the session, Dr. Janofsky again requested that Mr. Harmon provide him with any past psychiatric treatment records and, when Mr. Harmon did not comply, Dr. Janofsky left him a phone message repeating the request.

Mr. Harmon never provided the requested records. The only document Dr. Janofsky received as to Dr. Carnegie was a letter by Dr. Carnegie dated November 3, 2011, which stated that Mr. Harmon had been undergoing therapy with Dr. Carnegie, that a number of personal issues had “taken a toll on Mr. Harmon,” but that Dr. Carnegie had “not seen any evidence that [Mr. Harmon] is incapable of performing the duties of his profession.” 6 At the October 2012 evidentiary hearing, Mr. Harmon testified that he had asked Dr. Carnegie, by telephone and in person during a counseling session in late August 2012, to provide his records and notes to Bar Counsel. However, Mr. Harmon was unable to explain why Dr. Carnegie never provided them. The Hearing Judge’s Conclusions of Law Based on the admissions, the hearing judge held that Mr. Harmon failed to act with reasonable diligence and promptness in representing all three clients in violation of MLRPC 1.3 and, in particular, failed to act with reasonable diligence and promptness in serving the complaint on Ms. Christian’s husband and pursuing her divorce.

The hearing judge also concluded, based on the admissions, that Mr. Harmon violated MLRPC 1.4 with respect to his representation of all three clients. In particular, she determined that Mr. Harmon failed to respond to Ms. Christian’s requests for information, that he failed to keep Mr. Lawrence informed about the accrual of attorney’s fees, and that he failed to respond to Mr. Lawrence’s request for information regarding the fees both during and after the representation. Furthermore, Mr. Harmon failed to respond to the Proctors’ demands for information ³¹⁵ about the representation, and failed to keep them informed concerning the time and location of the mediation and the accrual of attorney’s fees. The hearing judge concluded, based on the facts admitted, that Mr. Harmon attempted to charge Ms. Christian an unreasonable or excessive fee in violation of MLRPC 1.5(a).

Based on evidence presented by Bar Counsel, the hearing judge concluded that Mr. Harmon knowingly failed to respond to Bar Counsel’s lawful requests for information from July 2010 to June 2011 in violation of MLRPC 8.1(b), which requires an attorney to respond to requests from the disciplinary authority for information without need for a subpoena. See Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108 (2000). Finally, the hearing judge found that Mr. Harmon did not prove by a preponderance of evidence that mitigating circumstances existed. She noted that, even though Mr. Harmon testified that he suffered from numerous personal problems and depression, he did not offer any expert testimony or medical records to corroborate his testimony.

Relying on Dr. Janofsky’s expert opinion that Mr. Harmon did not suffer from a physical or mental disability that could have caused the misconduct, and Mr. Harmon’s own testimony that his personal problems did not cause him to neglect his responsibilities to his clients, the hearing judge found that the violations were not caused by any physical or mental disorder. Instead, she found aggravating circumstances, stating that Mr. Harmon intentionally failed to cooperate in Bar Counsel’s investigations of the three complaints, committed multiple violations, and refused to acknowledge the wrongful nature of his misconduct. Discussion MLRPC 1.3, 14, and 1.5(a) We agree with the hearing judge’s conclusions that Mr. Harmon violated MLRPC 1.3, 1.4, and 1.5(a). The hearing judge’s