Attorney Grievance Commission v. Jordan

⁵⁸⁶ GREENE, J. Pursuant to Maryland Rule 16-751 1 of the Maryland Rules of Professional Conduct (MRPC), the Attorney Grievance Commission (the Commission), acting through Bar Counsel, filed a petition for disciplinary action or remedial action against Jerry Deneise Jordan (respondent). In that petition, it was alleged that respondent violated Maryland Rule 16-812, Maryland Rules of Professional Conduct (MRPC). With respect to the MRPC, the petition alleged that respondent violated Rules 8.4(b) and 8.4(c). 2 Pursuant to Maryland Rule 16-752(a) 3 , we referred the matter to Judge Michael J. Finifter of the Circuit Court for Baltimore County to make findings of fact and conclusions of law in accordance with Maryland Rule 16-757(c) 4 . Following ⁵⁸⁷ an evidentiary hearing, Judge Finifter found that respondent had violated MRPC Rules 8.4(b) and 8.4(c).

Respondent filed exceptions to Judge Finifter’s findings. I. The charges in this matter arose out of respondent’s alleged willful submission of fraudulent documents to her homeowner’s insurance company, St. Paul Traveler’s Insurance Company. As a result of respondent’s action, the insurance company paid her compensation she was not otherwise entitled to receive. After an evidentiary hearing, Judge Finifter made the following factual findings and conclusions of law: “FINDINGS OF FACT AND CONCLUSIONS OF LAW This matter came before the court for hearing on September 13, 2004.

Petitioner has alleged that the Respondent submitted fraudulent documents to her homeowner’s insurance company that resulted in monetary disbursements to Respondent [to which she] was otherwise not entitled, and that Respondent’s actions were a violation of the Maryland Rules of Professional Conduct. Upon consideration of the evidence presented, including the exhibits, testimony and stipulations, the court finds as follows: “FINDINGS OF FACT 1. Respondent, Jerry D. Jordan, is an attorney licensed to practice law in the State of Maryland. 2. Respondent is the owner of a home that suffered extensive damage resulting from a water leak located at 212 Barron Avenue in Baltimore County, Maryland.

Respondent learned of the damage to her home on or about November 15, 2000. ⁵⁸⁸ 3. After discovering the water damage to her home, Respondent contacted her homeowner’s insurance company, St. Paul Traveler’s Insurance Company (“Traveler’s”). 4. Traveler’s assigned Michael McBain, an inside claims representative, to handle Respondent’s claim that resulted out of said water leak. 5. Mr. McBain estimated that it would take approximately two to three months to repair Respondent’s home. 6.

Mr. McBain explained the terms of the Respondent’s policy to the Respondent and the options available to her under the terms of the homeowner’s insurance policy. One of the options available to Respondent under the terms of her homeowner’s insurance policy was for reimbursement of monies expended for rent while Respondent was not residing at her water-damaged home. 7. The Respondent indicated to Mr. McBain that she had found a place to rent for $2,000.00 per month located at 11 Anchor Way in Berlin, Maryland, during the time that her home was not habitable due to the extensive damage and resulting repairs. 8. In fact, Respondent owned the home located at 11 Anchor Way, Berlin, Md., that she purported to be renting at a cost of $2,000 per month. 9.

Respondent never told Mr. McBain that she owned the house for which Traveler’s was supplying rent money. 10. On January 6, 2001, Mr. McBain ceased working on Respondent’s claim file. 11. On January 17, 2001, Respondent’s file was transferred to Linda Quinonez, an employee of Traveler’s, because Mr. McBain had left the unit. 12. Upon receiving Respondent’s claim file, Ms. Quinonez observed that Mr. McBain agreed to pay Respondent $2,000 per month in rental expenses, but that the file lacked documentation of the actual rental agreement.

Instead, the file only contained typed one-line receipts for rent monies received from Jerry Jordan in the amount of $2,000.00 for the months of December and January. See Pet. Ex 3 pp. ⁵⁸⁹ 54-55. The “receipts” were signed by Janet L. Coyne [Janet L. Coyne, spouse of V.F. Coyne never received any money from Jerry Jordan for rental of any property]. 13.

Ms. Quinonez was concerned about the lack of information in the claim’s file to support Respondent’s claim that she was entitled to reimbursement for expending rent money. Ms. Quinonez requested that the Respondent supply additional information in support of the rental agreement so that Traveler’s could continue to pay monies out. 14. On February 5, 2001, Respondent sent a letter to Ms. Quinonez stating that she was not “getting repaid for the rent I [Respondent] am paying on my current lodgings.” See Pet. Ex 3, p. 27.

In fact, Respondent made specific representations to Traveler’s that indicated that Respondent was renting a home for $2,000.00 per month, and made numerous requests for reimbursement. See Pet Ex 3, pp. 20-24, 26-28, 29, 34-36, 54, 55, 63 & 89. 15. Respondent provided Ms. Quinonez with a short rental agreement on February 5, 2001 in response to Ms. Quinonez’s requests. The Rental Agreement indicated that Mr. Coyne agreed to rent the subject property to Respondent for a period not to exceed 5 months at a rate of $2,000.00 per month.

See Pet Ex 3, p. 63 16. Ms. Quinonez made attempts to contact Mr. Coyne, the landlord, to verify the terms of the Rental Agreement. However, Ms. Quinonez was not able to reach Mr. Coyne and instead found that the telephone number she was given was for a pub-restaurant. 17. Ms. Quinonez then contacted an investigator, Gary Dunnigan, to verify ownership of the property that Respondent claimed to be renting, and Respondent’s claim file was transferred to Teresa Albertson, the Custodian of Records, in mid-March, 2004. 18.

Traveler’s received an Affidavit from the Respondent dated February 28, 2001, that indicated that V.F. Coyne owned the property located at 11 Anchor Way Drive, Berlin, Maryland. The Affidavit was notarized by the Respondent, ⁵⁹⁰ Jerry D. Jordan. The Affidavit indicated that the Respondent agreed to pay Mr. Coyne $2,000.00 per month and that Mr. Coyne had received $6,600.00 thus far in rental payments. The Affidavit was sent by letter to Traveler’s, “Attn: Gary Dunnigan.” See Pet Ex 5. 19.

Traveler’s learned that Respondent owned the property she purported to be renting for $2,000.00 per month, and became concerned that Respondent was not paying rent to Mr. Coyne. Respondent was only entitled to be reimbursed for rent paid under her homeowner’s insurance policy if Respondent actually made such rental payments. 20. Due to Traveler’s concerns regarding Respondent’s requests for reimbursement for rental payments, Traveler’s sent Respondent a “general reservation of rights letter” on March 29, 2001. The purpose of that letter was to inform Respondent that Traveler’s reserved the right to deny coverage to investigate the veracity of Respondent’s claim. 21.

Traveler’s also wished to conduct an examination under oath of the Respondent regarding Traveler’s concerns. Respondent, however, refused to submit to an examination under oath. After Respondent refused to submit to an examination under oath, Traveler’s denied Respondent’s claim for misrepresentation and for failing to submit to said examination on March 21, 2002. The basis for Traveler’s allegations of misrepresentation was that the Respondent sent an Affidavit that stated Mr. Coyne owned and was receiving rent for the “rental property” when in fact Traveler’s investigation revealed that Respondent owned the property located at 11 Anchor Way.

See Pet Ex 1. 22. Traveler’s brought allegations of insurance fraud against Respondent to the Attorney General’s Office. 23. The Attorney General’s Office assigned David Webb to investigate Traveler’s allegations. Specifically, Mr. Webb investigated whether the Respondent had committed fraud by misrepresenting that she was renting a house owned by Mr Coyne. ⁵⁹¹ 24.

Mr. Webb interviewed Respondent on June 26, 2001, and Respondent gave her consent to be interviewed with full knowledge that anything she stated would be presented to a grand jury and that Mr. Webb had no police powers. 25. At the interview with Mr. Webb, Respondent admitted that the documents that she submitted to Traveler’s “... were not the truth ...” and that “she [Respondent] would probably lose her license as a lawyer.” 26. In Respondent’s case in chief, Respondent testified on cross-examination that she owned the “rental property” located at 11 Anchor Way, that she never paid any rent to Mr. Coyne, and that she never had a real rental agreement with Mr. Coyne. 27. The court finds the admissions of the Respondent at the interview and her decision to testify in court to be knowing, voluntary and intelligent. 28.

Respondent, in her case in chief and through cross-examination of Petitioner’s witnesses made several arguments in her defense and the following assertions. a. Respondent argues that Mr. McBain knew that she was in fact the owner of the “rental property.” b. Respondent argues that she and Mr. McBain worked out a deal whereby the rent money that Respondent would receive was really in lieu of other types of expenses such as travel and telephone costs. In addition, Respondent alleges that Mr. McBain and Traveler’s “left a trap” for her to fall into so that Traveler’s wouldn’t have to pay the claim. c.

Respondent also argues that her state of mind and physical condition were both fragile when she realized the extent of damage caused to her home by the water leak. Respondent argues that she was on various medications and had many concerns regarding her family and plans for the holidays when she was forced to find a place to live after the damage to her home, and that all of these circumstances made her particularly vulnerable. d. Finally, Respondent’s Mother, Ruth Mitchell, testified that she [Ruth Mitchell] notarized the Affidavit in support ⁵⁹² of a rental agreement with Mr. Coyne, and that Ms. Mitchell mailed the Affidavit back to Traveler’s. 29. Having considered all of the Respondent’s arguments, evidence and testimony in support of her position, the court does not find Respondent’s position to be credible. 30.

The court does not find that there was ever any agreement between Mr. McBain, Traveler’s or Respondent that entailed reimbursement for a “rental agreement” in lieu of providing receipts of actual expenses incurred. Furthermore, the court does not find Ms. Mitchell’s testimony to be credible in this case. Ms. Mitchell did not know to whom she sent the Affidavit of the rental agreement, nor did she understand why she was sending the Affidavit, nor the contents contained in the Affidavit. Finally, the court finds that Respondent understood the consequences of her actions when she submitted false documents to Traveler’s for reimbursement for expenses that she was not entitled to receive.

Respondent’s capacity to control her conduct with respect to making false representations in this case was not inhibited by the medications that she was receiving nor the pressures that she experienced as a result of the circumstances in which she was placed by the water damage to her home. After reviewing the applicable law and the parties’ arguments, the hearing court made Conclusions of Law as follows: “CONCLUSIONS OF LAW Based upon the findings of fact set forth above, this court concludes that Respondent violated Rule 8.4(b) (committing a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects) and Rule 8.4(c) (engaging in conduct involving dishonesty, fraud, deceit or misrepresentation) of the Maryland Rules of Professional Conduct. Respondent committed these violations by submitting fraudulent documents to her homeowner’s insurance company that asserted that she was ⁵⁹³ renting a home owned by Mr. Coyne at a cost of $2,000.00 per month when no such rent was paid and Respondent owned that residence.” II. Exceptions Bar Counsel filed no exceptions to the hearing judge’s findings of fact and conclusions of law.

Respondent filed exceptions contending that the hearing judge did not take her medical condition seriously (she was on medication for stress and anxiety), that “nothing in this case involved a client or the practice of law,” and that the hearing judge assigned this matter was biased. Respondent also asserts that because she has not been prosecuted for a crime, her dishonest act has not been proven. At a hearing of a disciplinary or remedial action, the Attorney Grievance Commission must prove by clear and convincing evidence the charges in their petition. Md. Rule 16-757(b).

Respondent has the burden of proving any affirmative defenses and extenuating or mitigating circumstances by a preponderance of the evidence. We have said that, this Court exercises original jurisdiction over attorney discipline proceedings. We conduct an independent review of the record, accepting the hearing judge’s findings of fact unless clearly erroneous. We will not disturb the factual findings of the hearing judge if they are based on clear and convincing evidence.

Our review of the hearing judge’s conclusions of law is de novo. Attorney Griev. Comm’n v. Gore, 380 Md. 455, 468 , 845 A.2d 1204, 1211 (2004) (quoting Attorney Griev. Comm’n v. Davis, 375 Md. 131, 157-58 , 825 A.2d 430, 445-46 (2003) (citations omitted)).

When either petitioner or respondent files exceptions, the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof ⁵⁹⁴ set out in Rule 16—737(b). The Court may confine its review to the findings of fact challenged by the exceptions. The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses. Md. Rule 16-759(b)(2)(B).

In this instance we cannot say that the hearing judge’s findings of fact were clearly erroneous. There was considerable evidence, to a clear and convincing standard, that Ms. Jordan intentionally submitted false documents to her insurance company for the purpose of obtaining monetary benefits to which she was not entitled. Eventually, Ms. Jordan admitted that she was not entitled to any reimbursement for rental payments because Mr.. Coyne was not