Attorney Grievance Commission v. Kremer

HARRELL, J. Dean Clayton Kremer was admitted to the Maryland Bar on 18 December 1989. He practiced personal injury and bankruptcy law in Columbia, Maryland, until 2011. On 13 April 2012, the Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed against Kremer a Petition for Disciplinary or Remedial Action (“Petition”), pursuant to Rule Ib^SRaXl). 1 The Petition, based on four complaints made by former clients, charged Kremer with numerous violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), including: MLRPC 1.1 (Competence), MLRPC 1.3 (Diligence), MLRPC 1.4 (Communication), MLRPC 1.16(d) (Declining or Terminating Representation), MLRPC 8.1(b) (Failure to Respond to Disciplinary Authority), and MLRPC 8.4(d) (Conduct Prejudicial to the Administration of Justice). 2 Kremer was served with a Writ of Summons and the Petition on 18 May 2012. He was required by Maryland Rule 16-754 to respond to the Petition within fifteen days of service, but failed utterly to do so.

Consequently, an Order of ³²⁹ Default was entered against him on 28 June 2012. The case was referred to Judge Louis Becker of the Circuit Court for Howard County, pursuant to Maryland Rule 16-752(a). 3 An evidentiary hearing occurred on 4 September 2012. At the evidentiary hearing, Bar Counsel presented ex parte proof, consisting of several affidavits and the testimony of Michael H. Peregoy, an investigator for the AGC. Kremer did not attend the evidentiary hearing or file a response to the Petition.

Based on the evidence before him, Judge Becker found that Kremer’s conduct violated MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.1(b), and 8.4(d). I. PROCEEDINGS BEFORE THE HEARING JUDGE Judge Becker’s findings of fact and conclusions of law state as to each complaint: Mary R. Whitley Complaint [Whitley] retained [Kremer] on 19 November 2010 to file a Chapter 7 bankruptcy petition. She made an initial payment of $600.00 and a final payment of $599.00 on [17 December 2010]. Between January 2011 and July 2011, [Whitley] made approximately twenty telephone calls to [Kremer], inquiring into the status of her case. [Kremer] was generally unresponsive to her inquiries.

When he did return her calls, he reported little or no progress on her case. On [8 June 2011], [Whitley] wrote to [Kremer] noting he had failed to provide her with the bankruptcy petition for her signature and that he had not responded to her telephone messages. On [8 May 2011], [Whitley] wrote to ³³⁰ [Kremer] again detailing her attempts to reach him and his lack of response or action on the case. [Whitley] wrote to [Kremer] on [5 August 2011], indicating that she had not heard from him since [8 June 2011] when he had promised to file her Chapter 7 petition no later than July 2011. She reported to [Kremer] that this delay was causing her emotional distress.

Although [Whitley] provided [Kremer] with all the information requested to prepare her bankruptcy petition and paid his fee and court costs, [Kremer] did not file her bankruptcy petition, did not refund the funds paid to him, and has not kept her informed of the status of her case. Christina Goddard Complaint [Goddard] retained [Kremer] in August 2010 to file a bankruptcy petition. She paid him $1199.00 for his fee and court costs. [Kremer] failed to file any petition on her behalf. [Goddard] attempted to reach [Kremer] by telephone, but was unable to do so because his telephone line was either disconnected or unable to accept messages. [Kremer] has not refunded any portion of the fee. Robert T. Taylor Complaint [Taylor] retained [Kremer] to represent him in a Chapter 13 bankruptcy proceeding in October 2010. [Taylor] paid a filing fee of $274.00.

A week later, he paid [Kremer] his fee of $1,200.00. [Kremer] had several meetings and hearings postponed, and when scheduled, failed to attend the hearings. A Chapter 13 plan was to be filed by [4 November 2011], but [Kremer] failed to file it. [Taylor] was unsuccessful in reaching [Kremer] by telephone or facsimile because [Kremer’s] phone was disconnected or unable to accept messages. [Taylor’s] case was dismissed due to [Kremer] missing a court date. [Taylor] had to retain new counsel to complete the work on his case. [Kremer] has not refunded any portion of his fee. John M. Klipsch Complaint [Klipsch] and his then-wife met with [Kremer] in June 2010 to discuss filing a bankruptcy petition. They made ³³¹ installment payments through February 2011, paying [Kremer’s] $1,200.00 flat fee and the $299.00 filing fee.

By the time the last payment was made, the Klipsches were divorced, so they paid [Kremer] an additional payment of $100.00 to file the petitions separately. [Klipsch] and his former wife understood that [Kremer] would not file the petitions until the fee was paid in full. After the final payment was made, [Klipsch] and his former wife did not hear from [Kremer] for six weeks, despite many attempts to contact him by telephone, e-mail, and text message. Around the beginning of April, [ ]Kremer told [Klipsch] that he would file the petitions. A hearing was set for [25 July 2011], but [Kremer] had the hearing postponed.

Ultimately, the Bankruptcy Court dismissed the petitions and [Kremer] never re-filed the petitions. [Klipsch’s] subsequent numerous e-mails and other messages were unsuccessful in getting [Kremer] to act on the case. After [Klipsch] filed a complaint to the [AGC], [Kremer] made a full refund to [Klipsch] and returned his documents. The [AGC] received complaints from [Whitley], [Goddard], [Taylor] and [Klipsch], Copies of the complaints were forwarded by Assistant Bar Counsel to Kremer’s office address[ 4 ] Investigator Peregoy met with [Kremer] at Kremer’s residence on [30 November 2012], [Peregoy] gave [Kremer] copies of the complaints and explained to him that he was required to submit written responses. [Kremer] acknowledged his duty to attend to his client matters and told [Peregoy] that some of the clients were due refunds of the legal fees paid to him. [Kremer] further acknowledged that he had abandoned his law office, leaving the client files there. [Kremer] agreed to submit written responses to the complaint but failed to do so. Assistant Bar Counsel forwarded copies of the complaints to [Kremer’s] home address on [9 December 2011], again requesting a written response. ³³² Peregoy testified that, when he served Kremer at his home with the Petition, Kremer stated that “he had been suffering from depression for a number of years and had recently suffered a ‘nervous breakdown.’ ” Based upon these findings of fact, Judge Becker concluded, by clear and convincing evidence, that Kremer’s conduct violated MLRPC 1.1, 5 1.3, 6 1.4, 7 1.16(d), 8 8.1(b), 9 and 8.4(d). 10 ³³³ Judge Becker concluded that Kremer “acted incompetently and without diligence” in abandoning the cases of Whitley, Taylor, Klipsch, and Goddard.

He concluded further that Kremer’s lack of competent and thorough representation violated MLRPC 1.1 and MLRPC 1.3. In addition, the hearing judge concluded that Kremer violated MLRPC 1.4 because he failed to communicate with his clients. Judge Becker stated, “[Kremer] ceased picking up mail at his office and did not check his telephone messages, and, as a result, the Complainants were unable to effectively leave telephone messages.” Because “Rule 1.16(d) of the [MLRPC] requires a lawyer to take steps to protect his client’s interests upon termination of representation,” Judge Becker resolved that Kremer failed to comply with that Rule when he abandoned his law office, did not return case documents to Whitley, Goddard, and Taylor, and did not refund to those clients unearned fees after abandoning their cases. Further, Kremer did not return, in a timely manner, the documents and fees of Klipsch and his former wife.

Hence, Judge Becker concluded that, “[b]y his delay and/or failure to refund the fees and return papers to the Complainants, Kremer violated Rule 1.16(d).” The hearing judge found further that Kremer failed to submit written responses to Bar Counsel to the four Complaints, in the face of Assistant Bar Counsel’s requests that he do so, and even though Kremer told Peregoy that he would submit written responses. Judge Becker concluded that “[Kremer’s] failure to answer these lawful demands for information violated Rule 8.1(b) of the [MLRPC].” ³³⁴ Lastly, Judge Becker observed that Kremer abandoned his law practice, neglected his clients’ cases, and that, as a result, judicial relief in the bankruptcy court was delayed to Whitley, Taylor, Klipsch, and Goddard. The hearing judge concluded that Kremer’s conduct, in this regard, violated MLRPC 8.4(d). No material exceptions were filed to the hearing judge’s findings of fact or conclusions of law. 11 Moreover, Kremer did not appear before this Court to offer argument on the appropriate sanction.

Bar Counsel seeks disbarment.

II

ANALYSIS A. Standard of Review “This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 315 , 44 A.3d 344, 354 (2012); Attorney Grievance Comm’n v. Stern, 419 Md. 525, 556-57 , 19 A.3d 904, 925 (2011). We review the hearing judge’s conclusions of law under a non-deferential standard. Brown, 426 Md. at 315 , 44 A.3d at 344 ; Stern, 419 Md. at 556-57 , 19 A.3d at 925 . The hearing judge’s findings of fact will be deemed correct if (1) they are not clearly erroneous, or (2), at the Court’s option, if neither party filed exceptions to them.

Brown, 426 Md. at 315 , 44 A.3d at 344 ; Stern, 419 Md. at 556-57 , 19 A.3d at 925 . If determined to be established, the findings of fact are then used to determine the legal propriety of the legal conclusions of law and the appropriate sanction. Brown, 426 Md. at 315 , 44 A.3d 344 ; Stern, 419 Md. at 556-57 , 19 A.3d at 925 . We must determine whether there is “sufficient evidence to support the hearing judge’s legal conclusions, by a clear and convincing standard of proof.” Attorney Grievance Comm’n v. Tanko, 427 Md. 15, 27-28 , 45 A.3d 281, 288 (2012); See Attorney Grievance Comm’n v. Nnaka, 428 Md. 87, 97 , 50 A.3d 1187, 1193 (2012). ³³⁵ B. Findings of Fact As noted earlier, Kremer failed utterly to respond or participate in this case.

Bar Counsel filed no material exceptions. Thus, we accept the hearing judge’s findings of fact. Brown, 426 Md. at 315 , 44 A.3d 344 ; Stern, 419 Md. at 556-57 , 19 A.3d at 925 . We turn next to the hearing judge’s conclusions of law which we review under a non-deferential standard.

C. Conclusions of Law MLRPC 1.1 requires an attorney to provide “competent representation to a client.” In violation of MLRPC 1.1, Kremer failed to file the requisite bankruptcy petitions for Whitley and Goddard. See Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 222 , 46 A.3d 1169, 1177 (2012) (concluding that failure to take fundamental steps to further a client’s case is a violation of MLRPC 1.1). Moreover, Kremer had numerous hearings postponed in Taylor’s and Klipsch’s matters for no just cause and in fact missed Taylor’s hearing, which caused Taylor’s case to be dismissed. Kremer’s conduct violated MLRPC 1.1.

See Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 553-54 , 16 A.3d 181, 193 (2011) (finding that an attorney violated Rule 1.1 when he failed to appear before the court in his client’s case). We find that, pursuant to De La Paz and Garrett , Kremer’s conduct violated MLRPC 1.1. In addition, we conclude that Kremer’s conduct violated MLRPC 1.3. Whitley, Taylor, Goddard, and Klipsch each attempted to contact Kremer regarding the status of their cases, with little success.

Whitley called Kremer approximately twenty times and was able to reach him once, but even then Kremer provided little information about her case. Goddard, Taylor, and Klipsch also attempted to reach Kremer, but were unsuccessful. Kremer’s conduct violated MLRPC Rule 1.3, which requires the exercise of “reasonable diligence and promptness.” See Attorney Grievance Comm’n v. Park, 427 Md. 180, 193 , 46 A.3d 1153, 1160 (2012) (finding an attorney’s ³³⁶ failure to keep his client informed of her case violated MLRPC Rule 1.3). Closely linked to Kremer’s violation of MLRPC 1.3 is his violation of MLRPC 1.4.

MLRPC 1.4 requires an attorney to “keep the client reasonably informed about the status of the matter.” Kremer failed to keep his clients informed of the status of their cases. Whitley, Taylor, Goddard, and Klipsch called, e-mailed, sent letters, and left messages, to inquire as to how their cases were progressing. Kremer failed to communicate. His repeated disregard towards his clients is a violation of MLRPC 1.4.

See De La Paz, 418 Md. at 554, 16 A.3d at 193 (concluding that an attorney violated MLRPC 1.4 when he did not respond to a client’s telephone messages or letters inquiring on the status of his case). MLRPC 1.16(d) requires an attorney, upon termination of representation, to take steps to protect a client’s interests. Kremer failed to do what was required of him by Rule 1.16(d). See Park, 427 Md. at 193 , 46 A.3d at 1160 (where we agreed with the hearing judge that the attorney violated MLRPC 1.16(d), when he abandoned the client’s case, failed to return the client’s messages, did not refund any of the unearned fees or return the client’s documents).

Kremer abandoned each of the Complainants’ cases before their completion. Moreover, Kremer failed to return Whitley’s, Taylor’s, or Goddard’s unearned fee or documents. While Kremer did return Klipsch’s unearned fee and documents, he did not do so in a timely manner. We find Kremer’s conduct violated MLRPC 1.16(d).

MLRPC 8.1(b) makes it a violation to “knowingly fail to respond to a lawful demand for information ... [from Bar Counsel].” We conclude Kremer violated Rule 8.1(b). Garrett, 427 Md. at 226 , 46 A.3d at 1179 (failing to respond to Bar Counsel’s request for information is a violation of MLRPC 8.1(b)). Bar Counsel asked repeatedly Kremer to respond to the Petition, but he did not. In fact, Kremer