Attorney Grievance Commission v. James

BATTAGLIA, J. The Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting through Bar Counsel and ⁶⁴² pursuant to Maryland Rule 16-751Í&), 1 filed a petition for disciplinary or remedial action against respondent, Charles M. James, III, Esquire, on March 15, 2004, after revoking a Conditional Diversion Agreement 2 (“CDA”) with respondent. The Petition alleged that James, who was admitted to the Bar of this Court on January 4, 1993, violated several of the Maryland Rules of Professional Conduct (“MRPC”), specifically, l.l(Competence), 3 1.3 (Diligence), 4 1.4 (Communication), 5 ⁶⁴³ 1.15 (Safekeeping Property), 6 8.1(b) (Bar admission and disciplinary matters), 7 and 8.4(a), (c) and (d) (Misconduct). 8 Viola ⁶⁴⁴ tions of Maryland Rules 16-604 (Trust Account Deposits), 9 16-607 (Commingling of Funds), 10 16-609 (Prohibited transactions), 11 and Maryland Code (2000, 2004 RepLVol.), Sections ⁶⁴⁵ 10-304(a), 12 10-306, 13 and 10-307 14 of the Business Occupations and Professions Article. In accordance with Maryland Rules 16-752(a) and 16-757(c), 15 we referred the petition to Judge Dwight D. Jackson of the Circuit Court for Prince George’s County for an evidentiary hearing and to make findings of fact and conclusions of law. On September 20, 2004, Judge Jackson held a hearing and on November 8, 2004, issued Findings of Fact and Conclusions of Law, in which he found, by clear and convincing evidence, that James violated MRPC Rules l.l, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a)(c) and (d), Maryland Rules 16-604, 16-607, and 16-609, and Sections 10-304 and 10-306 of the Business Occupations and Professions Article. ⁶⁴⁶ Petitioner recommends disbarment and took no substantive exceptions to the Findings of Fact and Conclusions of Law, merely asking that the $8.39 amount regarding escrow check number 1074 be amended to $10.00 to reflect the greater amount that Respondent admitted he gave to Ms. Smith.

We will correct the findings to reflect this change. On December 7, 2004, the same day Petitioner submitted the one exception and recommendation for sanction, Respondent filed several exceptions, one of which was the same as that filed by Bar Counsel to which we already have acceded. With respect to another exception, Respondent requested that the case be remanded for another evidentiary hearing so that the Circuit Court could consider various issues, a request to which we do not accede. Moreover, we conclude that the appropriate sanction is disbarment.

Judge Jackson’s Findings of Fact and Conclusions of Law follow: BACKGROUND “On December 7, 2001, a complaint was filed against Charles M. James, III for allegedly violating several rules of professional conduct. Upon consideration of the complaint, Mr. James, hereinafter called the ‘Respondent,’ and the Attorney Grievance Commission of Maryland via Bar Counsel, hereinafter called the ‘Petitioner,’ entered into a Conditional Diversion Agreement, pursuant to Maryland Rule 16-736, on November 18, 2002. On February 20, 2004, the Petitioner, having found Respondent to be in material default, revoked the Agreement. By Order dated March 17, 2004, the Court of Appeals transmitted this matter to this Court to hear the charges contained in the pleadings in accordance with Maryland Rule 16-757, et seq.

On March 22, 2004, the Petitioner filed a Petition for Disciplinary or Remedial Action against the Respondent. The matter came for hearing before this Court on September 20, 2004.” “At the outset of the hearing, Petitioner pursued its Motion for Sanction, alleging that on May 29, 2004, the ⁶⁴⁷ Respondent was personally served with Petitioner’s Interrogatories, Requests for Production of Documents and Request for Admission of Facts and Genuineness of Documents but failed to submit responses thereto by June 29, 2004, which was 30 days after service and 15 days after Respondent filed his Answer on June 14, 2004. According to this Court’s scheduling order dated July 26, 2004, all discovery was to be completed by August 11, 2004. The Respondent submitted Answers to Interrogatories, Requests for Production of Documents and Requests for Admission of Facts and Genuineness of Documents on August 31, 2004.

The Court found Respondent’s responses to discovery to be untimely and non-responsive. The Court, therefore, granted Petitioner’s Motion for Sanctions and foreclosed the Respondent from putting on any evidence that was requested in the Petitioner’s Interrogatories and Requests for Production of Documents. As a result, Petitioner’s Requests for Admission of Facts and Genuineness of Documents were admitted, pursuant to Rule 2-424(b), due to the Respondent’s failure to respond within 30 days.” FINDINGS OF FACT SUPPORTING COMPLAINT NO. 2002-175-17-9 “Petitioner alleges that the Respondent violated Maryland Rule of Professional Conduct 1.1, 1.15(a), 8.4(a)(d), Rules 16-607 and 16-609 and Business Occupations and Professions Article §§ 10-306 and 10-307 by his misappropriation and commingling of trust money. The Court makes the following Findings of Fact, finding that they are supported by clear and convincing evidence: ‘On November 18, 2002, Respondent and Petitioner entered into a Conditional Diversion Agreement; however, on February 20, 2004 that Agreement was revoked.

In February of 2001, the Respondent handled a claim for Sheila Smith. On or about February 20, 2001, the proceeds of an arbitration award in the amount of $7,500.00 were forwarded to the Respondent on behalf of Ms. Smith. The Respondent deposited Ms. Smith’s $7,500.00 award into his attor ⁶⁴⁸ ney escrow account held at Chevy Chase Bank. On or about May 17, 2001, the Respondent wrote escrow Check No. 1074 to Ms. Smith in the amount of $1,222.47, 16 which was [$10.00] more than Ms. Smith was entitled to.” “The Respondent’s escrow Check No. 1074 caused an overdraft on his escrow account in the amount of [$10.00].

Thereafter, Chevy Chase bank assessed a $30.00 non-sufficient funds charge on the Respondent’s escrow account. On June 18, 2001, the Respondent’s escrow account had a negative running balance of $38.39.” “On June 19, 2001, the Respondent deposited $8,000.00 into his escrow account on behalf of a personal injury client, Catherine A. Davis. When Respondent deposited Ms. Davis’ $8,000.00 into his escrow account, his running balance fell to $7,961.61. The Respondent was to maintain in escrow Ms. Davis’s net proceeds of $1,774.75; however, he fell below that amount on July 18, 2001, August 3, 2001 and August 6, 2001.

Three of the Respondent’s Chevy Chase escrow checks were presented to the bank on April 22, 2002. All three checks caused an overdraft in a combined total amount of $70.” “In January of 2000, the Respondent started using his attorney escrow account for personal and business matters. Escrow Check No. 1063, dated January 10, 2000, was written to Directv, a personal expense. The Respondent testified that during 1999 he and his wife, who is also an attorney, had several discussions about depositing client checks into their personal account and that based on their discussions, the Respondent stopped using the personal account and started using his escrow account for business and personal matters.” ⁶⁴⁹ CONCLUSIONS OF LAW FOR COMPLAINT NO. 2002-175-17-9 “The Court finds that the Respondent violated all the Rules of Professional Conduct charged by the Petitioner in the Petition for Disciplinary or Remedial Action.

The Respondent mishandled Ms. Davis’ $8,000.00 settlement in violation of Rule 1.1 by not maintaining intact the $8,000.00 when he deposited the money into his escrow account. 17 When Ms. Davis’ funds were deposited into the escrow account the Respondent’s account balance fell to $7,961.61 due to having a negative balance of $38.39. Further the Respondent failed to maintain intact Ms. Davis’ net proceeds of $1,774.75. On three different occasions the escrow account balance fell below the $1,774.75 amount due to Ms. Davis.” “The Court also finds that the Respondent violated Maryland Rule of Professional Conduct 1.15(a), Maryland Rule 16-609 and Business Occupations and Professions Article § 10-306 by not maintaining Ms. Davis’ $8,000.00 settlement in the escrow account when it was deposited and later by not maintaining intact Ms. Davis’ net proceeds of $1,774.75. The Respondent’s escrow account fell below $1,774.75 on July 18, 2001, August 1, 2001 and August 6, 2001.

The Respondent failed to keep Ms. Davis’ proceeds of $1,775.75 intact until she cashed her settlement check on August 10, 2001. Further, three escrow checks were presented to the bank on April 22, 2002, and all three checks caused an overdraft in a combined total of $70.00.” “The Court further finds that Respondent has been using his escrow account for personal and business matters since January 10, 2000 in violation of Maryland Rule of Professional Conduct 1.15(a) and Rule 16-607. The Respondent’s mishandling of his escrow account and his failure to keep ⁶⁵⁰ Ms. Davis’ monies intact until disbursed is prejudicial to the administration of justice in violation of Rule 8.4(d).” FINDINGS OF FACT SUPPORTING COMPLAINT NO. 2001-101-17-9 “In the complaint of Fazlur R. Kazim, Petitioner alleges that the Respondent violated Rules 1.1, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a)(c)(d) of the Maryland Rules of Professional Conduct, Maryland Rule 16-604 and 16-609 and Business Occupations and Professions Article §§ 10-304 and 10-306 in connection with his representation of Mr. Kazim. The Court makes the following Findings of Fact, finding that they are supported by clear and convincing evidence: ‘In December of 2002, Mr. Kazim retained the Respondent to investigate and prosecute a civil action against attorney Clark U. Fleckinger, II for alleged damages resulting from an affair he had with Mr. Kazim’s wife, which led to a divorce.

At the initial meeting with the Respondent, Mr. Kazim signed a retainer agreement and gave the Respondent a $1,500 check representing a $1,000 nonrefundable engagement fee and $500 retainer and/or investigative fee. Upon receipt of Mr. Kazim’s $1,500 check, the Respondent cashed the check and made two cash deposits into his operating account totaling $1,476.30. The Respondent never deposited Mr. Kazim’s $500 into the escrow account.’” “Throughout the representation the Respondent failed to communicate with Mr. Kazim. Mr. Kazim sent the Respondent five (5) e-mails and called the Respondent numerous times to no avail.

The Respondent never responded to Mr. Kazim’s e-mails and telephone calls. The Respondent never sent Mr. Kazim any written communications throughout the representation.” “Marc O. Fielder, Bar Counsel Investigator, interviewed the Respondent, who stated that Mr. Kazim had retained him because he suffered from a physical disability, which was rooted in the emotional distress he suffered while going through his divorce. The Respondent informed Mr. Fiedler ⁶⁵¹ that he was looking at several causes of action to pursue on behalf of Mr. Kazim including intentional interference of the marital contract, intentional infliction of emotional distress, possible negligence and adultery. Originally, the Respondent considered filing a cause of action against Mr. Fleckinger and Mr. Grozbean, who had represented Mr. Kazim’s wife in the divorce proceeding.

The Respondent, however, determined early on that there was no cause of action against Mr. Grozbean. The Respondent stated to Mr. Fiedler that he was proceeding against Mr. Fleckinger because Mr. Fleckinger had had an affair with Mr. Kazim’ s wife. The Respondent informed Mr. Fiedler that he had not been terminated from the representation and was waiting for additional medical records from Mr. Kazim. Mr. Kazim testified that the Respondent never requested additional medical records than what was initially provided.” “Throughout the representation the Respondent never advised Mr. Kazim that he did not have a cause of action against Mr. Fleckinger.

Further, the Respondent never advised Mr. Kazim that nothing further would be done on his matter unless additional medical records were provided.” “By letter dated July 9, 2003, Petitioner requested the Respondent to submit a written response to Mr. Kazim’s complaint. Although the Respondent received Petitioner’s letter of July 9, 2003, he did not respond to that letter. Petitioner sent the Respondent a second letter dated July 30, 2003 by certified mail, return receipt requested, requesting a written response to Mr. Kazim’s complaint within ten days. Although the Respondent received Petitioner’s second letter of July 30, 2003, the Respondent did not respond within ten days.

Petitioner sent the Respondent a third letter dated September 11, 2003 by certified mail, return receipt requested, requesting a written response to Mr. Kazim’s complaint within seven days. Although the Respondent received Petitioner’s third letter of September 11, 2003, the Respondent did not respond within seven days. Thereafter, the Petitioner sent the Respondent a fourth letter dated September 24, 2003 by certified mail, return ⁶⁵² receipt requested, requesting a written response to Mr. Kazim’s complaint within seven days. Although the Respondent received Petitioner’s fourth and final letter dated September 24, 2003, the Respondent did not respond within seven days.

The Respondent never submitted a written . response to Petitioner’s letters.” CONCLUSIONS OF LAW FOR COMPLAINT NO. 2001-101-17-9 “The Court finds that the Respondent violated all the Rules of Professional Conduct alleged by the Petitioner. Respondent incompetently represented Mr. Kazim in violation of Rule 1.1 by not exhibiting the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The Respondent claimed he was pursuing a cause of action against Mr. Fleckinger for having an affair with Mr. Kazim’s ex-wife. In Maryland, it has long been recognized that [a]t common law, [an] action for criminal conversation provided different benefits to and imposed different burdens upon men and women.

Only a man could sue or be sued for criminal conversation. These facts remain unchanged under the common law as it exists in Maryland today. A man has a cause of action for criminal conversation, but a woman does not. Moreover, a man who engages in an act of sexual intercourse with another man’s wife is civilly liable for damages, but a woman who engages in a similar activity with another woman’s husband is not.

Thus, Maryland’s law provides different benefits for and imposes different burdens upon its citizens based solely upon their sex. Such a result violates the [Equal Rights Amendment]. Any previous implicit approval by this Court of the action for criminal conversation is eradicated by the existence of the [Equal Rights Amendment]. The common law cause of action for criminal conversation is a vestige of the past.

It cannot be reconciled with our commitment to equality of the sexes. We now hold that in Maryland the cause of action for ⁶⁵³ criminal conversation is unconstitutional and is no longer viable. Kline v. Ansell, 287 Md. 585, 592-593 , 414 A.2d 929 (1980); see also Doe v. Doe, 358 Md. 113 , 747 A.2d 617 (2000) (Restating that criminal conversation had been abolished). Therefore, there was no cause of action against Mr. Fleckinger.

If the Respondent had done the minimal amount of research he would have discovered that there could not have been any cause of action for criminal conversation and would not have proceeded with the case. Thus, the Court finds that Respondent’s failure to act with reasonable diligence in notifying Mr. Kazim that there was no cause of action was in violation of Maryland Rule of Professional Conduct 1.3. The Court also finds that the Respondent violated Rule 1.4 by failing to communicate with Mr. Kazim and keep him informed of the status of the matter despite repeated efforts by Mr. Kazim to speak with him.” “The Court further finds that Respondent’s failure to deposit Mr. Kazim’s $500 retainer and investigative money into the escrow account violated Rule 1.15(a), 18 Rule 16-604 and 16-609 and Business Occupations and Professions Article §§ 10-304 and 10-306. 19 The Respondent’s taking of Mr. Kazim’s $500 retainer and/or investigative fee on December 10, 2002 violated Maryland Rule 8.4(c) 20 by dishonestly taking trust monies that had not been earned. Hence, the Court finds that Respondent’s lack of action in research ⁶⁵⁴ ing and advising Mr. Kazim that he did not have a cause of action against Mr. Fleckinger and the Respondent’s failure to maintain Mr. Kazim’s $500 in trust until earned or until paid to the investigator was conduct prejudicial to the administration of justice in violation of Rule 8.4(d).

Moreover, the Court finds that Respondent violated Rule 8.1 by his wilful failure to respond to Petitioner’s letters.” “In summary, this Court finds that the Respondent violated Maryland Rules of Professional Conduct 1.1, 1.3, 1.4, 1.15(a), 8.1(b) and 8.4(a)(c)(d), Rules 16-604, 16-607 and 16-609 and Business Occupations and Professions Article §§ 10-304 and 10-306 in connection with both complaints.” STANDARD OF REVIEW In proceedings involving attorney discipline, this Court has original and complete jurisdiction. Attorney Grievance Comm’n v. O’Toole, 379 Md. 595, 604 , 843 A.2d 50, 55 (2004). Clear and convincing evidence must support the hearing judge’s findings. Attorney Grievance Comm’n v. Gore, 380 Md. 455, 468 , 845 A.2d 1204, 1211 (2004).

As a result, we review the record independently but generally accept the hearing judge’s findings of fact unless they are clearly erroneous. Attorney Grievance Comm’n v. Potter, 380 Md. 128, 151 , 844 A.2d 367, 380-381 (2004). Any conclusions of law made by the hearing judge, such as whether provisions of the MRPC were violated, are subject to our de novo review. Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002).

DISCUSSION A. James’ Exceptions Regarding the Findings of Fact. We have reviewed the record and conclude that Judge Jackson’s findings of fact are supported by clear and convincing evidence. ⁶⁵⁵ Mr. James urges remand to take additional evidence citing various exceptions, each of which we will address, overruling each of them. 21 Exception l.b “The Findings of Fact indicate that Respondent never sent Mr. Kazim any written communications throughout the representation, without regard for the retainer agreement or billing statement introduced into evidence by Petitioner.” The evidence adduced at the hearing clearly and unequivocally establishes that no written communication was sent to Mr. Kazim throughout Mr. James’s representation, including the retainer agreement, Petitioner’s Exhibit 7B, and billing statement, Petitioner’s Exhibit 11. Mr. Kazim testified that he “saw” Exhibit 7B in Mr. James’s office and that he signed it “in the apartment to retain [Mr. James]” and further “the first time Pm seeing this, this billing worksheet” was at the hearing. Mr. Kazim further iterated on direct examination by Mr. James, “I’ve never received a statement from you, I’ve never received anything from you.

You have never sent me any correspondence in the mail. I’ve never, ever seen this sheet but this moment here, Your Honor, that he has presented me this sheet.” The lack of any written correspondence was corroborated by the testimony of Mr. Marc Fielder, the investigator with the Attorney Grievance Commission, who reviewed Mr. James’s client file on Mr. Kazim and did not see any correspondence to anyone in the file. Mr. James also told Mr. Fielder that he provided the billing statement to Mr. Kazim at a meeting. This exception is denied.

Exception 2. “The Findings of Fact filed on 8 November 2004 notes that three checks were presented on 22 April 2002 causing an overdraft. The Findings of Fact however, do not note either that the account in question was closed prior to 22 April 2002 upon the advice of Marc ⁶⁵⁶ Fielder (an investigator for and representative of the Office of Bar Counsel), that the checks were honored, or that all sums due concerned said checks were immediately satisfied by Respondent.” No testimony or exhibit was introduced to reflect any of the alleged facts. Mr. James certainly has argued that the events occurred in this sequence, but adduced no evidence to support these additional findings when he had the opportunity to do so. This exception is denied.

Exception 8.a. “The Findings of Fact reference a violation of Rule 1.1 indicating a lack of action in researching and a failure to exhibit the legal knowledge, skill thoroughness and preparation reasonably necessary for the representation. There was no evidence presented by Petitioner as to the legal research conducted and Respondent was precluded from introducing evidence on the issue. Mr. Fielder testified only as to the causes of action initially considered by the Defendant.” Exception 3.b. “The Findings of Fact indicate that no cause of action existed against Mr. Fleckinger because recovery could not be had for the act of adultery. Although the act of adultery was not a viable action, the adulterous acts were actionable under claims of negligence and intentional infliction of emotional distress.” The lack of legal research testified to by Mr. Fielder, the AGC investigator, is belied by Mr. James’s contention in his exceptions and during argument before this Court, that “although the act of adultery was not a viable action, the adulterous acts were actionable under claims of negligence and intentional infliction of emotional distress.” Essentially, James argues that violation of the criminal statute prohibiting adultery, Md.Code (2002, 2004 Cum.Supp.) § 10-501 of the Criminal Law Article, is in and of itself a cause of action somehow related to the negligence and intentional infliction of emotional distress claims.

However, even cursory research on Mr. James’s part would have revealed that in Doe v. Doe, 358 Md. 113 , 747 A.2d 617 (2000), Judge Eldridge, speaking ⁶⁵⁷ for this Court, emphasized that, “This Court decided twenty years ago that public policy would not allow tort damages based upon adultery. See Kline v. Ansell, 287 Md. 585 , 414 A.2d 929 (1980). That decision should not be ignored simply because the plaintiff has employed different labels and named a different defendant.” Id. at 127, 747 A.2d at 624 . This exception is denied.

B. James’s Exceptions to Findings of Fact based upon discovery sanctions, 22 Mr. James also has requested that the matter be remanded, “as the defense was severely prejudiced by the inability to use, in either defense or rebuttal documents which were made available to Petitioner.” On the morning of the hearing, Bar Counsel pressed preliminary motions regarding the untimeliness of Mr. James’s responses to interrogatories, requests for production of documents and requests for admissions and genuineness of documents, all of which had been served upon Mr. James on May 29, 2004, but not responded to until August 31, 2004, just twenty days before the hearing. At the hearing, Mr. James conceded that his responses were “untimely.” In addition to untimeliness, Bar Counsel asserted that Mr. James’s Answers to Interrogatories were unresponsive: Inter ⁶⁵⁸ rogatory number 9 stated, “If you intend to rely upon any documents or other tangible things to support a position that you have taken or intend to take in the action, provide a brief description, by category and location, of all such documents and other tangible things, and identify all persons having possession, custody, or control of them,” to which Respondent replied, “Please see response to request for production of documents. I may rely upon any document that has been reviewed by, received from or sent to the Petitioner.” Interrogatory number 17 requested, “For each of your clients named in the Petition for Disciplinary Action, state in detail the date you were retained, the nature of the legal work for which you were retained, the actual work you performed and the date of termination (if any) for each employment,” to which Mr. James responded, “Please see request for production of documents.” Interrogatory number 18 asked, “For each of your clients named in the Petition for Disciplinary Action, state the date of each communication you had with each client and the purpose and nature of each such communication (e.g., letter, telephone, etc.) and identify all documents which evince such communications,” to which Mr. James responded, “I cannot remember the date of each communication I had with each named client and the purpose and nature of each such communication as specified in this interrogatory.” Interrogatory number 19 queried, “For each of your clients named in the Petition for Disciplinary Action, identify each person with whom you communicated on behalf of each client, the date, purpose and nature of each such communication and identify all documents which evince such communications,” to which Mr. James replied, “I cannot remember each person with whom I communicated on behalf of each named client as specified in this interrogatory.” Further, in response to each and every request for production of documents, Mr. James had stated, “Upon availability, inspection and related activities concerning relevant and non-privileged material, will be provided as requested.” Mr. James asserts that he made client files available to Mr. Fielder, the investigator for Bar Counsel, and that he made ⁶⁵⁹ boxes of his client files available to Bar Counsel on August 10, 2004, when the diversion agreement was signed, and on August 31, 2004, after the diversion agreement was revoked, when his deposition was taken; Bar Counsel did not review the uncategorized boxes of documents. After lengthy argument presented by both Petitioner and Respondent, the hearing judge found that the responses were untimely and not responsive, agreed to deem admitted the admissions of facts and