Attorney Grievance Commission v. Lee

GREENE, Judge. 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 Norman Joseph Lee, III, the respondent. The petition charged that respondent violated Rules 1.3 (Diligence), 2 1.4 (Communication), 3 and 1.16 (Declining or terminating representation) 4 of the Maryland Rules of Professional Conduct (MRPC), as adopted by Rule 16-812. ⁵²⁰ We referred the case, pursuant to Rule 16-752(a), 5 to the Honorable Lawrence R. Daniels, of the Circuit Court for Baltimore County, to conduct a hearing and to make Findings of Fact and Conclusions of Law. When respondent did not answer the petition, an order of default was entered against him on April 14, 2005.

Pursuant to the Order of Default, a hearing was set for June 30, 2005, at 9:30 a.m. Prior to the June hearing, respondent filed a motion to vacate the Order of Default and an answer to the Petition for Disciplinary Action. Petitioner responded to the motion to vacate and respondent’s answer to the Petition for Disciplinary or Remedial Action, requesting that the court deny the motion to vacate the Order of Default and permit the case to proceed, as scheduled, upon the default order on June 30, 2005. The court agreed with petitioner and denied respondent’s motion.

At the hearing on June 30, 2005, respondent argued that the court should vacate the order of default. He conceded that there is no court record acknowledging the timely receipt of his response to the petition for disciplinary action. Respondent contended, however, that his office records reveal that he sent the court a timely response. Notwithstanding the absence of a timely response, respondent reargued that the court should vacate the Order of Default.

The hearing court responded by pointing out that any motion to vacate should have been filed within thirty days after entry of the Order of Default and was not, and that respondent did not, pursuant to Rule 2-613(d), “state the reasons for the failure to plead and the legal and factual basis for the defense of the claim.” The hearing court further stated: Again, I just interrupt because I want the record to be clear that though Mr. Lee did in fact enter his motion to set aside ⁵²¹ the default or vacate the default, he did not give a reason why there was failure to plead, he did not offer any legal or factual basis. In addition, pursuant to Rule 16 — 757(c), 6 the court found facts by the clear and convincing standard and concluded that respondent violated Rule 1.3 of the Maryland Rules of Professional Conduct. The record shows that Norman Joseph Lee, III, was admitted to the Maryland Bar on March 31, 1981. Bobby D. Coleman, complainant, retained respondent to seek post-conviction relief in the Circuit Court for Washington County.

The retainer agreement was dated July 8, 2002, and signed by respondent and witnessed by his secretary. Respondent accepted a fee of $3,500, paid by Mr. Coleman’s mother on behalf of her son, as a retainer for services to be rendered in the matter. Thereafter, on August 2, 2002, Mr. Lee entered his appearance in the Circuit Court for Washington County on behalf of Mr. Coleman. In Mr. Coleman’s letter to the Attorney Grievance Commission, dated July 10, 2003, he complained that, “as yet he had never met [Mr. Lee] nor had the ability to discuss the job I’m hiring him to perform.” Following Mr. Coleman’s complaint to the Commission, Mr. Lee scheduled an appointment to interview Mr. Coleman at the prison facility and met with Mr. Coleman on August 23, 2003.

This meeting occurred more than a year after Mr. Coleman retained respondent to represent him. Specifically, the hearing court found that it took respondent almost one year after he received payment of the retainer to visit Mr. Coleman, who was then incarcerated in Washington ⁵²² County. Further the hearing court noted, from the evidence, that “there’s no indication that [respondent] either took action on Mr. Coleman’s behalf to file some sort of pleading or indicate that there was no basis to do so and make an accounting to Mr. Coleman of the monies that had been spent out of the retainer and then refund anything that remained if there was a remainder.” Based upon these findings of fact, the hearing court concluded that respondent displayed a lack of diligence in violation of Rule 1.3 of the MRPC. With respect to the violation of Rule 1.4, the hearing court found that respondent attempted to keep in contact with his client and his client’s mother.

The hearing court made no other specific findings, even though the testimony and documentary evidence in the record shows that Mr. Coleman wrote, approximately in July or early August 2002, to Mr. Lee and had requested that his attorney communicate about any new developments or discoveries in his case and asked Mr. Lee to advise as to what the chances were of having his “conviction reversed in the post-conviction proceeding.” In addition, Mr. Coleman pointed out that “he had been experiencing difficulties getting the respondent’s phone number on the prison’s institutional phone list and that’s why he did not call him personally” (Paragraph 10. Petition For Disciplinary Action). This additional information was offered, apparently, to explain why Mr. Coleman’s mother was acting as a conduit for her son with regard to specific questions to Mr. Lee about the progress on her son’s case. On August 21, 2002, she wrote to respondent and inquired “as a matter of a status report on any research and legal preparation conducted for Bobby’s case.” Within her letter she made reference to her own legal research in New York, and inquired whether her son’s case involved issues relating to wrongful conviction, mistaken eyewitness testimony, admissibility of any prior crimes, search and seizure violations, and evidence disclosure and warrants.

Mr. Coleman’s mother also “questioned respondent about the pre-sentence report containing false or misleading statements that it would have otherwise impacted the sentence imposed as well as whether or not Maryland Rule 4-342 could apply to ⁵²³ her son’s case.” Moreover, she wanted to know whether “Bobby’s case [was] effected [sic] by the recent Supreme Court rulings applying Apprendi?” Further, she questioned how much time she could expect Mr. Lee to take in performing research and copied the letter to Mr. Coleman. Approximately 2 months later, by letter dated October 16, 2002, Mr. Lee wrote to Mr. Coleman and apologized to Mr. Coleman and his mother “for the delay in the prosecution of your case.” Additionally, “[h]e acknowledged that Mrs. Coleman’s August 21 letter referenced four cases but that he had ‘not had the benefit of reviewing these cases but [was] in the process of reviewing same and [would] advise her accordingly.’ ” There is no evidence in the record, however, that Mr. Lee ever followed up on his promise either to review the cases referenced or to give any advice. Averment number 12 of the petition for disciplinary action was that, “[o]ther than th[e] meeting [with Mr. Coleman at the prison facility in August 2003, Mr. Lee] performed no substantive legal services on behalf of Bobby D. Coleman.” In finding no violation of Rule 1.4, the hearing court observed that the court notes that the client is Mr. Coleman and not his mother. I don’t believe there is any requirement under the Canons of Professional Ethics that the lawyer keep in touch with the person who paid the fee.

It’s the client who is and should be the centerpiece of all the attorney’s efforts. Petitioner takes exception to the hearing court’s failure to find a violation of Rule 1.4. The respondent did not file exceptions either to the hearing court’s findings of facts or conclusions of law. Because exceptions were filed by Bar Counsel, we determine whether the findings of fact have been proven in accordance with the applicable burdens of proof.

See Rules 16-759(b)(2)(B) and 16-757(b). In the present case, the hearing court entered a default order. The court should have treated the averments as established pursuant to Rules 16-754(c) and 2-323(e). Rule 16-754(c) permits the court to treat failure to file a timely ⁵²⁴ answer as a default, and Rule 2-323(e) permits the court to treat the averments in a pleading as admitted unless denied.

Because the averments were not denied, we treat them as admitted. Further, in the exercise of our supervision over attorney disciplinary proceedings, we conduct an independent review of the record, accepting the hearing judge’s findings of fact unless clearly erroneous. See Attorney Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763-64 (2002). We review de novo the hearing judge’s conclusions of law.

See Rule 16—759(b)(1); Attorney Grievance Comm’n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002). The hearing judge concluded that there was no violation of Rule 1.4 because “there is [no] requirement under the [MRPC] that the lawyer keep in touch with the person who paid the fee.” We disagree as to the judge’s factual findings and conclusion of law as to Rule 1.4. After an unnecessarily protracted evidentiary hearing, 7 it appears that the court ⁵²⁵ eventually adopted the averments contained in the petition for disciplinary action as established facts. The hearing judge, however, did not consider those facts in making his conclusion of law with respect to Rule 1.4.

The unchallenged facts, which the hearing court apparently overlooked, are that after execution of the retainer agreement and payment of the fee, Mr. Coleman notified respondent that he (Mr. Coleman) “had