Attorney Grievance Commission v. Hunt

²⁷⁹ HOTTEN, J. This attorney discipline proceeding involves a lawyer who was only licensed to practice in the District of Columbia, yet represented a defendant pro bono for a criminal proceeding in a Maryland District Court, sitting in Prince George’s County (“District Court”), and made a false statement to Bar Counsel regarding his pro hac vice admission to the Maryland Bar. Larry D. Hunt (“Respondent”) was admitted to the Bar of the District of Columbia on November 1, 1999, and at all times relevant to this case, maintained a law office in Washington, D.C. 1 The Attorney Grievance Commission of Maryland (“Petitioner”), filed a Petition for Disciplinary or Remedial Action against Respondent on February 27, 2015. Petitioner requested that this Court take appropriate disciplinary action against Respondent for violating the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) (Md. Rule 16-812) during his unauthorized representation of Jaimel Fatin Peace (“Mr. Peace”) in the District Court. Petitioner alleged violations of MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 5.5 (Unauthorized Practice of Law, Multijurisdictional Practice of Law), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct).

This Court, by an order dated March 17, 2015, transmitted the action to the Circuit Court for Prince George’s County, and designated the Honorable Albert W. Northrop (“the hearing judge”) to enter findings of fact and conclusions of law. On November 2, 2015, a hearing was held, and on November 25, 2015, the hearing judge issued Findings of Fact and Conclusions of Law. The hearing judge found that Respondent violated MLRPC 1.1, 1.3, 1.4, 5.5(a) and (b), 8.1(a), and 8.4(a), (b), (c), and (d). On March 4, 2016, we heard oral argument.

For the reasons outlined below, we uphold the hearing judge’s Find ²⁸⁰ ings of Fact and Conclusions of Law, and order that Respondent be suspended from the practice of law for 60 days. I. BACKGROUND a. The hearing judge’s findings of fact The hearings judge’s findings of fact, beginning with Respondent’s representation of Mr. Peace, were as follows: On March 13, 2013, Jaimel Fatin Peace (“Mr. Peace”) was arrested for possession of controlled dangerous substances (“CDS”) — not marijuana. On April 8, 2013, Respondent appeared on Mr. Peace’s behalf for a preliminary hearing ... in the District Court for Prince George’s County.

Respondent represented Mr. Peace on a pro bono basis. During the April 8, 2013, hearing, Respondent filed a Motion to Dismiss on Mr. Peace’s behalf as his attorney. Respondent’s Motion to Dismiss did not contain a Certificate of Service. During the April 8, 2013, preliminary hearing, the court set Mr. Peace’s criminal hearing for June 27, 2013.

On or about June 11, 2013, Respondent filed a “Motion to Withdraw as Counsel for Defendant” in Mr. Peace’s case. Respondent’s Motion to Withdraw did not contain a Certificate of Service. On June 12, 2013, Respondent’s Motion to Withdraw was denied because it did not have a Certificate of Service. Mr. Peace’s criminal proceeding occurred on June 27, 2013.

Although Respondent was still counsel of Record for Mr. Peace, he was not present during the June 27, 2013 hearing. On July 2, 2013, the Honorable Thomas J. Love issued a Show Cause Order for Respondent to appear before him in court on August 29, 2013 due to Respondent’s failure to appear at the June 27, 2013 hearing. Judge Love also rescheduled Mr. Peace’s criminal hearing for August 29, 2013. On or about July 24, 2013, Respondent filed a Motion to request that the court dismiss the Show Cause order and grant his Motion to Withdraw from Mr. Peace’s case.

Respondent’s Certificate of Service for his July 24, 2013 Motion listed Mr. Peace’s address instead of opposing counsel’s address. On or about August 6, 2013, the court denied ²⁸¹ Respondent’s July 24, 2013 Motion. Respondent failed to appear at the Show Cause hearing scheduled on August 29, 2013. On October 3, 2013, Judge Love filed a complaint with the Attorney Grievance Commission — Office of Bar Counsel.

On December 13, 2013, Bar Counsel wrote to Respondent stating inter alia, “If you are not a Maryland Attorney, please advise this office whether you were admitted pro hac vice in the underlying matter of State v. Jaimel Fatin Peace.” On February 4, 2014, Respondent sent Bar Counsel a response to its December 13, 2013 letter. Respondent stated in his February 4, 2014 letter: “However, please be advised that I am not an attorney licensed in Maryland, but was being admitted pro hac vice in the underlying matter of State v. Jaimel Fatin Peace before Mr. Peace informed me that he [sic] longer wanted me to repr[e]sent him in the above-referenced matter.” Respondent testified in his deposition for this matter that he contacted Maryland attorney Bruce Johnson, Esquire sometime during mid-2013 concerning Mr. Johnson sponsoring his pro hac vice admission to Maryland. However, Respondent failed to take any discernable steps to file a pro hac vice motion in Maryland before representing Mr. Peace. Citations omitted. b.

The hearing judge’s conclusions of law Based on the above findings of fact, the hearing judge concluded that Respondent violated MLRPC 1.1, 1.3, 1.4, 5.5(a) and (b), 8.1(a), and 8.4(a), (b), (c), and (d). Rule 1.1 MLRPC 1.1 requires that “[a] lawyer ... provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The hearing judge concluded that “Respondent’s admitted ignorance of the Maryland Rules and repeated errors in filing his Motions violated [MLRPC] 1.1.” The hearing judge ob ²⁸² served that Respondent had filed motions lacking certificates of service, and failed to send the motions to opposing counsel. The hearing judge also noted that “Respondent testified in his deposition that he believed his appearance in Mr. Peace’s case had essentially been struck once he filed a Motion to Withdraw with the District Court.” Respondent was obviously mistaken, and according to the hearing judge, Respondent had a duty to “keep abreast of changes in the law and its practice,” see comment 6 to MLRPC 1.1, yet Respondent “had little to no knowledge of the Maryland Rules because he was not admitted to the Maryland Bar.” The hearing judge opined that “[cjlaimed ignorance of ethical duties ... is not a defense in disciplinary proceedings.” (quoting Attorney Grievance Comm’n v. Awuah, 346 Md. 420, 435 , 697 A.2d 446, 454 (1997)).

Rule 1.3 MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The hearing judge concluded that, because the District Court denied Respondent’s Motion to Withdraw as Counsel for Mr. Peace, Respondent violated MLRPC 1.3 by failing to attend the June 27, 2013 hearing. The hearing judge also concluded that MLRPC 1.3 was violated by Respondent’s failure to attend the August 29, 2013, show cause hearing. Rule 1.4 MLRPC 1.4(a)(2) requires that a lawyer “keep [his] client reasonably informed about the status of the matter[.]” The hearing judge concluded that Respondent violated MLRPC 1.4(a)(2) by not informing Mr. Peace that Respondent was still counsel of record on June 27, 2013, the day of Mr. Peace’s criminal hearing. While Mr. Peace allegedly terminated Respondent’s representation on April 8, 2013, Respondent remained counsel of record because the District Court denied his Motion to Withdraw. ²⁸³ Rule 5.5 2 MLRPC 5.5(a) prohibits an attorney from engaging in the practice of law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction^]” In determining “whether an individual has engaged in the practice of law, the focus of the inquiry should be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.” Attorney Grievance Comm’n v. Hallmon, 343 Md. 390, 397 , 681 A.2d 510, 514 (1996).

MLRPC 5.5(b)(2) provides that “[a] lawyer who is not admitted to practice in this jurisdiction shall not ... hold out to the public or otherwise represent that the lawyer is admitted to practice law in this jurisdiction.” The hearing judge found that Respondent’s representation of Mr. Peace required “legal knowledge and skill[,]” and was therefore prohibited by MLRPC 5.5(a). The hearing judge noted that the Motion to Dismiss filed on Mr. Peace’s behalf argued “that there was no probable cause and that the State violated [Mr. Peace’s] Fourth Amendment rights by illegally searching and seizing his property[.]” According to the hearing judge, “Respondent’s motions [were] replete with legal arguments that an attorney, not a lay person, would normally argue.” The hearing judge also observed that Respondent held himself out as an attorney when he checked a box marked “attorney” in his Motion to Dismiss. 3 ²⁸⁴ Rule 8.1(a) MLRPC 8.1(a) prohibits a lawyer from “knowingly mak[ing] a false statement of material fact[]” in connection with a disciplinary matter. The hearing judge concluded that Respondent violated MLRPC 8.1(a) by informing Bar Counsel that he was “being admitted pro hac vice in the underlying matter of State v. Jaimel Fatin Peace [.]” The hearing judge noted that “Respondent never filed a pro hac vice motion in Mr. Peace’s case.” Rule 8.4 MLRPC 8.4 provides, inter alia, that “[i]t is professional misconduct for a lawyer to:” (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or in ²⁸⁵ duce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (e) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice ... The hearing judge concluded that Respondent violated each of the aforementioned subsections.

Regarding MLRPC 8.4(a), the hearing judge relied on the previously mentioned ethical violations. Relative to MLRPC 8.4(b), the hearing judge noted that the unauthorized practice of law is prohibited by Md.Code (1989 Repl.Vol.2010), § 10-601(a) of the Business Occupations and Professions Article (“Bus. Occ. & Prof.”). Bus.

Occ. and Prof. § 10-602 also prohibits a person not barred in Maryland from “representing] to the public, by use of a title, including ‘lawyer’, ‘attorney at law’, or ‘counselor at law’, by description of services, methods, or procedures, or otherwise, that the person is authorized to practice law in the State.” The hearing judge concluded that Respondent violated § 10-601(a) and § 10-602 by “representing Mr. Peace at his preliminary hearing, filing motions on his behalf, and otherwise engaging in the unauthorized practice of law[.]” Such violations are classified as misdemeanors, thus Respondent’s representation of Mr. Peace was a criminal violation. 4 See Bus. Occ. and Prof. § 10-606. ²⁸⁶ Regarding MLRPC 8.4(c), the hearing judge found that Respondent’s statement to Bar Counsel — that he was “being admitted pro hae vice in the underlying matter of State v. Jaimel Fatin Peace ” — involved “dishonesty, fraud, deceit or misrepresentation.” MLRPC 8.4(c). As discussed in the factual findings, Respondent never filed a pro hac vice motion. Concerning MLRPC 8.4(d), the hearing judge described conduct prejudicial to the administration of justice as follows: Behavior that may seriously impair public confidence in the entire profession, without extenuating circumstances, may be conduct prejudicial to the administration of justice.

See Attorney Grievance v. Childress, 860 Md. 378 , 381, 758 A.2d 117, 121 (2000). An attorney’s material misrepresentation to the client, his failure to act on the client’s case for over three years and failure to expedite litigation, to the client’s detriment, is conduct prejudicial to the administration of justice. Failure to represent a client in an adequate manner and lying to a client constitute a violation of Rule 8.4(d). (quoting Attorney Grievance Comm’n of Maryland v. Reinhardt, 391 Md. 209, 222 , 892 A.2d 533, 540-41 (2006)).

The hearing judge concluded that Respondent violated MLRPC 8.4(d) by 1) failing to provide competent representation, 2) failing to appear for the show cause hearing, and 3) assuming that the Motions to Withdraw were granted, or failing to exercise due diligence in ascertaining their status. ²⁸⁷ Mitigating and Aggravating Circumstances The hearing judge did not find any aggravating circumstances, and opined that there was “no evidence ... to support any mitigating factors.” Nonetheless, the hearing judge noted that Respondent was caring for his elderly mother in North Carolina for a portion of the summer of 2013. The hearing judge also observed that Respondent admitted the alleged violations.

II

DISCUSSION a. Standard of Review This Court must determine whether Bar Counsel proved the allegations in the disciplinary petition by clear and convincing evidence. See Md. Rule 16 — 757(b). In doing so, “[w]e accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Attorney Grievance Comm’n v. Edib, 415 Md. 696, 706 , 4 A.3d 957, 964 (2010) (quoting Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006)).

Uncontested findings of fact may be accepted “as conclusively established.” Id. at 707, 4 A.3d at 964 (citing Md. Rule 16-759(b)(2)(A) (“If no exceptions are filed, the Court may treat the findings of fact as established ----”)). However, “ ‘[a]ll proposed conclusions of law by the hearing judge ... are subject to de novo review by this Court.’ ” Id. (quoting Attorney Grievance Comm’n v. Thomas, 409 Md. 121, 147 , 973 A.2d 185, 201 (2009)). b. Exceptions Neither party noted exceptions to the hearing judge’s findings of fact or conclusions of law.

Accordingly, we accept the findings of fact as established. See Attorney Grievance Comm’n v. Good, 445 Md. 490, 513 , 128 A.3d 54, 67 (2015) (noting that “we shall accept the hearing judge’s ‘findings of fact as established for the purpose of determining appropriate sanctions’ ” where neither Petitioner nor Respondent noted any exceptions) (citing Md. Rule 16-759(b)(2)(A)). In addition, having reviewed the hearing judge’s conclusions of law de ²⁸⁸ novo, we agree that Petitioner demonstrated, by clear and convicting evidence, that Respondent violated MLRPC 1.1,1.3, 1.4, 5.5(a) and (b), 8.1(a), and 8.4(a), (b), (c) and (d). c. This Court’s sanction 5 The purpose of this Court’s sanction in an attorney discipline proceeding is to “protect the public rather than to punish the attorney .... ” See, e.g., Attorney Grievance Comm’n v. Weiss, 389 Md. 531, 547 , 886 A.2d 606, 615 (2005) (citations omitted).

In furtherance of this goal, we impose a sanction that “demonstrates to members of the legal profession the type of conduct that will not be tolerated .... ” Attorney Grievance Comm’n v. Sperling, 380 Md. 180, 191 , 844 A.2d 397, 404 (2004) (quoting Attorney Grievance Comm’n v. Myers, 333 Md. 440, 447 , 635 A.2d 1315, 1318 (1994)). To determine the appropriate sanction, we consider the facts and circumstances of an individual case, “the nature of the ethical duties violated,” and “any aggravating or mitigating circumstances.” Attorney Grievance Comm’n v. Shephard, 444 Md. 299, 339 , 119 A.3d 765, 788 (2015) (citing Attorney Grievance Comm’n v. Paul, 423 Md. 268, 284 , 31 A.3d 512, 522 (2011)). Petitioner requests that this Court indefinitely suspend Respondent from the practice of law. According to Petitioner, Respondent’s unauthorized practice of law (MLRPC 5.5), along with his misrepresentations to Bar Counsel and the District Court (MLRPC 8.1(a) and 8.4), warrant such a sanction.

In contrast, Respondent proposes a 30 day suspension. In seeking their respective sanctions, both Petitioner and Respondent rely on Attorney Grievance Comm’n v. Harris-Smith, 356 Md. 72 , 737 A.2d 567 (1999), where we imposed a 30 day suspension for the unauthorized practice of ²⁸⁹ law by a non-Maryland attorney, and Attorney Grievance Comm’n v. Barneys, 370 Md. 566 , 805 A.2d 1040 (2002), where we imposed disbarment. However, as explained below, the misconduct in Barneys and the misconduct in Harris-Smith represent opposite ends of the unauthorized practice spectrum, with Respondent’s conduct falling in between. Because Respondent’s misconduct was not as egregious as that involved in Barneys , yet slightly more culpable than that involved in Harris-Smith , we shall suspend Respondent from the practice of law for 60 days.

In Attorney Grievance Comm’n v. Harris-Smith, Ms. Harris-Smith maintained a law office in Maryland, with several Maryland attorneys as partners. 356 Md. at 74 , 737 A.2d at 568 . However, Ms. Harris-Smith was only licensed to practice in the United States District Court for the District of Maryland and several out-of-state jurisdictions. Id. In violation of MLRPC 5.5(a), Ms. Harris-Smith performed screening interviews with potential Maryland clients who called her law office, and engaged in the practice of law by providing legal advice based on the facts presented.

Id. at 77 , 737 A.2d at 570 ; see Hallmon, 343 Md. at 397 , 681 A.2d at 514 (stating that, when determining whether an attorney engaged in the practice of law, “the focus of the inquiry should ‘be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent,’”) (citation omitted). Ms. Harris-Smith also violated MLRPC 5.5(b) by holding herself out as a Maryland attorney through her business card and radio advertisements, which “failed to disclose that her practice was limited to bankruptcy law and the [federal district court].” Harris-Smith, 356 Md. at 78 , 737 A.2d at 570 . In imposing a sanction for Ms. Harris-Smith’s unauthorized practice of law, we recognized several factors justifying a lesser sanction. We first observed that the hearing judge found in favor of Ms. Harris-Smith on the alleged violations of MLRPC 8.4(b) and (c) (Misconduct), which are “serious violations going to the attorney’s integrity.” Id. at 90 , 737 A.2d at 577 .

We also observed that Ms. Harris-Smith made several ²⁹⁰ attempts “to practice within the limits of her admission to the bar of the federal district^]” by referring clients requiring representation in Maryland state courts to her partners, appearing