Attorney Grievance Commission v. Hill

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 filed a Petition for Disciplinary or Remedial Action against John Lyster Hill, the respondent. The petition charged that, in representing two clients, the respondent violated Rules 1.3, Diligence, 2 1.4, Communication, 3 8.1, Bar Admission and Disciplinary Matters, 4 and 8.4, Miscon ⁹⁸ duct, 5 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. We referred the case, pursuant to Rule 16-752(a), 6 to the Honorable Dennis M. Sweeney, of the Circuit Court for Howard County, for hearing pursuant to Rule 16-757(c). 7 Following a hearing, at which the respondent appeared and participated, the hearing court found facts by the clear and convincing standard and drew conclusions of law, as follows. The respondent was retained by Edward Beier “to prepare and obtain an Eligible Domestic Relations Order (‘EDRO’),” necessary to enable him to obtain half of his ex-wife’s State employee’s retirement benefit.

In his engagement letter to Mr. Beier, the respondent conditioned the commencement of work on the matter on the payment by Mr. Beier of a minimum fee of $500.00. Although $200.00 of that amount was paid on the date of retention, the balance was not paid until ⁹⁹ more than three months later. 8 At that time, the respondent’s obligation to prepare the EDRO began. Despite Mr. Beier’s numerous requests that he do so, the respondent did not prepare the EDRO or cause it to be executed prior to Mr. Beier’s remarriage and consequent ineligibility to share in his ex-wife’s pension. While admitting that he did not prepare the EDRO and conceding that there was “no good reason for failing to do the work required in Mr. Beier’s case,” the respondent disputed Mr. Beier’s testimony only insofar as it indicated that the respondent falsely had told Mr. Beier that he had prepared the order.

Mr. Beier filed a complaint with the petitioner, which Bar Counsel forwarded to the respondent with the request that he provide a response. He followed up that letter with three others and three telephone calls. The respondent did not answer any of the letters or telephone calls or contact bar counsel in connection with the complaint for almost four months. At that time, he provided Bar Counsel with a written response.

Prior to submitting the written response, he “refunded Mr. Beier’s entire fee ..., admitting that he had done no work on Mr. Beier’s case.” The respondent subsequently consented to be, and was, interviewed by an investigator for the petitioner. In the second matter, the respondent was retained to represent Mr. John W. Wilson “in connection with a domestic relations case involving visitation and access issues concerning Mr. Wilson’s daughter.” He was paid a retainer of $2,000.00. He attended, with his client, his client’s ex-wife and her counsel, a pre-trial conference in the Circuit Court for Anne Arundel County before a Master, at which an agreement was reached. That agreement was placed on the record and the respondent “agreed to prepare and submit a written consent order within two weeks of that date.” He did not do so.

Nor had he done so after six months, despite calls from the ¹⁰⁰ Master’s office “inquiring about the status of the order” and calls and two letters from Mr. Wilson. When the order had not been filed after more than six months, a judge of the Circuit Court issued an Order for the respondent to appear in court and “explain the reason for his failure to submit the order and show cause why sanctions and costs should not be imposed.” Without informing his client that the show cause order had been issued or that the parties had been ordered to appear in court, the respondent prepared a Consent Order, apparently sent it to opposing counsel for signature and submitted it, signed by both counsel, to the court on the date scheduled for the show cause hearing. The respondent did not send the Consent Order to his client for review, nor even inform his client that he had prepared one, which had been submitted to and signed by the court. 9 Bar counsel made two requests of the respondent to produce his file in the Wilson matter. Although they were received, the respondent did not comply.

His only explanation for not having done so was: “I knew I messed up with Beier and Wilson, so, I guess I just didn’t really want to face it in addition to all the other things that were going on.”[ 10 ] Based on the foregoing findings of fact, the hearing court concluded that the respondent, by failing to act expeditiously ¹⁰¹ in both cases, by not timely preparing the EDRO in the Beier case, and by his delay in preparing the Consent Order in the Wilson case, violated Rule 1.3. The inaction in the Beier case was, in addition, it opined, a violation of Rule 8.4(d). The hearing court further concluded that in each case, the respondent violated Rule 1.4. In the Beier case, it consisted of “failing to keep Mr. Beier reasonably informed of the status of the matter and by failing to respond to his inquiries.” 11 Its gravamen, in Wilson, was the respondent’s failure: to respond to his client’s letters and telephone messages; to notify him of the show cause order, for, “as a party, [he was required] to be present in court for a hearing;” and to notify his client that the Consent Order had been submitted and entered.

Rule 8.1 was violated as to Beier, the hearing court concluded, when the respondent did not timely respond to Bar Counsel’s request for a response to the Beier complaint. Moreover, it characterized the delay as “wilful and without excuse.” With respect to Wilson, the hearing court found that the respondent did respond timely; however, the failure to produce the file, as requested, was reprehensible and, thus, a violation of Rule 8.1(b). The hearing court determined that the respondent violated Rule 8.4(d). It reasoned: “[The respondent’s failure to file the consent order within 15 days, as ordered by the Court, his failure to respond to inquiries by Master Muskin’s office, and his continued failure to submit the Consent Order led to Judge Silkworth ordering him to show cause why sanctions should not be imposed. [The respondent] then took an additional two months to submit the order, waiting until the date set for the show cause hearing to do so.

Respondent’s actions and inattention to the requirements set by the Court constitute ¹⁰² conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Maryland Rules of Professional Conduct.” Having found the rules violations charged, the hearing court also offered findings of mitigation: “The Court finds that [the respondent]^ inattention to these cases was caused in part by his dealing with his alcohol abuse problem and DUI arrest, and then dealing with additional family responsibilities caused by the illness and death of his mother-in-law. [The respondent]^ daughter’s behavioral problems in 2005 also distracted him from his practice. Master Muskin’s administrative assistant ... noted in her affidavit that [the respondent’s failure to act promptly was not his typical behavior. In the period from the summer of 2004 through spring of 2005, and continuing to the present, [the respondent’s only support staff has been á receptionist. [The respondent] has not added any support staff. Since the end of his probationary period, [the respondent] has not continued to engage in any therapy, treatment or support group activity to ensure that he remains sober.

There is no evidence presented that [the respondent] has relapsed into excessive use of alcohol.” Neither the petitioner nor the respondent filed exceptions to the hearing court’s findings of fact or conclusions of law. While both appeared at oral argument and offered their respective recommendations orally, only the petitioner submitted a written, recommendation. In that recommendation, notwithstanding the hearing court’s finding that the misconduct was mitigated, in part, by the respondent’s alcoholism, his mother-in-law’s illness and subsequent death and his daughter’s behavioral problems and despite its concession that no harm was done, the petitioner urged the respondent’s suspension for a one year period. In so doing, it emphasized the respondent’s dereliction in not preparing the EDRO, as he had been paid to do, his dilatoriness in preparing a consent order that he agreed to complete within fifteen days of the agreement it would reflect, the fact that the two instances ’ of misconduct occurred at the same time and. both involved ¹⁰³ rather simple and straightforward matters and the failure “to respond to Bar Counsel in a timely and complete manner.” The respondent, like the petitioner, expressly did not except to the hearing court’s factual finding or conclusions of law, stating that he had no quarrel with them and that they accurately reflect what took place, his action or inaction, as the case may be, the mitigating factors present and the remorse that he felt.

He added that he was ashamed of what took place and was not proud of having let his clients down, for which he stated he had already apologized to them. Emphasizing the mitigating factors the hearing court found and relying on Attorney Grievance Comm’n v. Tolar, 357 Md. 569 , 745 A.2d 1045 (2000), the respondent urged a reprimand. We have said so often, that it is now well settled, that the purpose of attorney