Attorney Grievance Commission v. Lee

HARRELL, J. The Attorney Grievance Commission (“Petitioner”), acting through Bar Counsel, filed with this Court a petition for disciplinary action against Norman Joseph Lee, III (“Respondent”), 1 alleging violations of the Maryland Rules of Professional Conduct (“MRPC”) in his representation of Connie Marie Baker (“Complainant”) in her Chapter 7 bankruptcy petition. Petitioner charged Respondent with violating MRPC 1.3 (diligence), 2 1.4 (communication), 3 1.16(d) (declining ⁵⁵⁰ or terminating representation), 4 3.2 (expediting litigation), 5 8.1(b) (bar admission and disciplinary matters), 6 and 8.4(d) (misconduct). 7 Pursuant to Maryland Rule 16-752(a), we referred the matter to the Honorable Vicki Ballou-Watts of the Circuit Court for Baltimore County to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law. ⁵⁵¹ I. Respondent was served with the Petition, Order, and Writ of Summons on 14 July 2005, directing him to respond to the charges within 15 days from the date of service, pursuant to the order of this Court and Maryland Rule 16-574(a). Respondent filed his Answer to the Petition for Disciplinary Action with the Clerk of the Circuit Court on 18 August 2005, more than a month after he was served. 8 Petitioner filed on 25 August 2005 a Motion to Strike Respondent’s Answer to the Petition for Disciplinary Action. An Order of Default was entered against Respondent on 23 August 2005.

The evidentiary hearing was set for 20 October 2005. Respondent neither filed a request to vacate the Order of Default nor appeared at the scheduled hearing. 9 At the conclusion of the hearing, the hearing judge granted Petitioner’s Motion to Strike Respondent’s Answer and received Petitioner’s evidence. On 16 December 2005, Judge Ballou-Watts filed the following findings of fact and conclusions of law: III. FINDINGS OF FACT Respondent Norman Joseph Lee, III was admitted to the Maryland Bar on March 31, 1981.

He is a solo practitioner in Bel Air, Harford County, Maryland. ⁵⁵² At all relevant times herein, Respondent maintained an active general practice with a concentration in business, bankruptcy, personal injury and estate matters. He also represented clients in criminal cases, though mostly at the District Court level. Complainant Connie Marie Baker retained the Respondent to represent her in filing a Chapter 7 Bankruptcy Petition, which the Respondent agreed to do for a proposed fee of $750.00 plus $200.00 costs. During the representation, Complainant paid $625.00 towards the total amount of $950.00 and expenses due.

Respondent filed a Chapter 7 Voluntary Petition for Bankruptcy (Petition No. 03-81456) in the U.S. Bankruptcy Court, District of Maryland, on behalf of Complainant, on September 26, 2003. The first meeting for creditors was scheduled to be held on November 5, 2003 at 9:00 a.m. and 300 West Pratt Street, # 375, Baltimore, Maryland 21201. Notice of this meeting was posted to the Respondent on September 28, 2003. Respondent was requested to produce certain annuity documents deemed necessary by the Bankruptcy Trustee.

Respondent was late to the meeting, thereby delaying the proceedings and causing Complainant, the Trustee and creditors to be kept waiting for his appearance. Although the requested documents were entrusted to Respondent, he failed to bring them to the scheduled creditors meeting. Respondent promised to make the documents available but failed to do so. Due to Respondent’s failure to provide the requested annuity documents, the Bankruptcy Trustee was caused to file numerous Motions to Extend Time to Object to Discharge and Motions to Object to Exemptions.

Complainant received a letter from the Trustee on or about January 14, 2004, and was surprised to find that the annuity documents had still not been forwarded to the Trustee. ⁵⁵³ By letter dated February 10, 2004, Complainant expressed her disappointment with Respondent’s inactivity on her behalf and his failure to respond to her contact attempts regarding her representation. This letter further notified Respondent that he was discharged as her attorney and requested a copy of all papers filed with the Bankruptcy Trustee, return of her file and a refund of $50.00 of the $625.00 paid as of that date. Copies of the letter were sent to the Bankruptcy Trustee, the attorney for the trustee and the Justice Department’s attorney representing the Office of the United States Trustee. Bankruptcy Trustee filed two additional Motions to Extend Time to Object to Discharge after February 2004.

On June 16, 2004, Bankruptcy Trustee filed a Motion to Reduce Compensation and for Return of Excessive Fees. By letter dated March 4, 2004, Connie Marie Baker filed a complaint with the Attorney Grievance Commission regarding Respondent’s representation of her in the Chapter 7 Bankruptcy Proceeding. At that time, Complainant still had not received her client file or a refund of unearned fees. Complainant attributed a total of 125 days in additional postponements to Respondent’s failure to cooperate, dilatory conduct and inaction.

The complaint was docketed and forwarded to the Respondent, along with a letter seeking his response on March 22, 2004. The letter requested response within ten (10) days and directed Respondent’s attention to Maryland Rule of Professional Conduct 8.1. No response was made within this time limit. On April 9, 2004, a second request for information was sent to the Respondent via certified mail, return receipt requested.

The return receipt indicated that it was delivered on April 14, 2004. The second request for information sought a response within seven (7) days. While awaiting response to her complaint, Complainant notified Petitioner, through Bar Counsel, that she had not received any responses to letters posted to Respondent, including the February 10, 2004 letter, discharging him as ⁵⁵⁴ her attorney. This letter was mailed via certified mail, return receipt requested.

Despite Respondent’s failure to reply to Complainant’s letters, Complainant received a bill from his office. By letter dated April 15, 2004, Respondent’s secretary notified Petitioner, through Bar Counsel, that Respondent had suffered a severe injury in a fall and had to undergo emergency surgery while out of state. The letter indicated that Respondent was hospitalized in intensive care in New Jersey. As of the date of the letter, Respondent’s prognosis and availability was unknown.

Therefore, Respondent’s secretary sought an extension on Respondent’s behalf. The extension was granted by letter dated April 21, 2004. By letter dated May 6, 2004, Respondent’s secretary notified Petitioner, through Bar Counsel, that Respondent was not expected to return to his office on a regular basis until mid-June, 2004. By that time, Bar Counsel had previously requested documentation of Respondent’s medical condition, diagnosis, prognosis and recovery time.

Respondent allegedly requested that the documentation be forwarded and, in the interim, provided a copy of the hospital discharge paper and a hospital bill. Complainant was never notified by Respondent or Respondent’s secretary of his medical condition. By letter dated May 13, 2004 and addressed to his secretary, Respondent was notified that written documentation of his medical condition was still requested. The letter also indicated that the investigation would be held in abeyance until mid-June, or until the doctors’ reports indicated that Respondent was permitted to return to work.

Thereafter, no response was received from Respondent or his secretary regarding his prognosis or Petitioner’s request for information in the disciplinary investigation. A Statement of Charges was prepared and forwarded to Respondent on December 10, 2004. This letter directed that the results of the investigation be forward to a Peer Review meeting pursuant to Rule 16-741. An investigative file and cover letter were forwarded to the Respondent in ⁵⁵⁵ addition to the Statement of Charges.

All documentation indicated that Respondent had a right to respond to the Statement of Charges in writing as set forth pursuant to Rule 16—734(b)(4). No written response was provided. The Bankruptcy Trustee brought an adversary proceeding against the Complainant and initiated proceedings against the Respondent personally for sanctions and to show cause why his fees were unreasonable and should be returned to the estate. These proceedings were brought, in part, because of Respondent’s inaction.

IV

CONCLUSIONS OF LAW Petitioner requested findings of fact and conclusions of law as to violations of Maryland Rules of Professional Conduct 1.3, 1.4, 1.16, 3.2, 8.1(b) and 8.4(d). Pursuant to Maryland Rule 2-323(e), the averments set forth in the Statement of Charges are deemed admitted unless denied in the responsive pleading or covered by a general denial. This court finds by clear and convincing evidence that Respondent Norman Joseph Lee, III committed the following violations of the Maryland Rules of Professional Conduct. Rule 1.3 Diligence.

A lawyer shall act with reasonable diligence and promptness in representing a client. Respondent violated Rule 1.3 when he: Failed to timely appear at the scheduled meeting of creditors on behalf of his client; Failed to bring and produce annuity documents requested by the Trustee, which had already been entrusted to Respondent by Complainant; and Failed to diligently pursue the legal matter in a timely manner, causing numerous Motions to Extend Time to Object to the Discharge of his client’s petition for bankruptcy and numerous Objections to Exemptions filed by the ⁵⁵⁶ Bankruptcy Trustee, delaying the remedy and relief sought by his client. Rule 1.4 Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.

(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation. Respondent violated Rule 1.4 when he: Failed to keep his client reasonably informed about the status of her bankruptcy proceeding; Failed to respond to his client’s request for a copy of all papers filed with the Trustee; Failed to inform his client that he did not file promised documents with the Trustee; and Failed to respond to his client’s request for return of her file and a refund of a portion of the fee promised as of that date. Rule 1.16 Declining or Terminating Representation. ([d]) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrendering papers and property to which the client is entitled and refunding advance payment of fee that has not been earned.

The lawyer may retain papers relating to the client to the extent permitted by other law. Respondent violated rule 1.16 when he: Failed to return the client file to Complainant after receipt of her February 10, 2004 letter, discharging Respondent as her attorney; and Failed to refund Complainant unearned fees after receipt of her February 10, 2004 letter, discharging Respondent as her attorney. Rule 3.2 Expediting Litigation. ⁵⁵⁷ A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. Respondent violated Rule 3.2 when he: Failed to respond to numerous requests of the Bankruptcy Trustee to provide necessary annuity documents; and That such failure caused several Motions to Extend Time to be filed, thus delaying the conclusion of the bankruptcy proceedings on his client’s behalf.

Rule 8.1 Bar Admission and Disciplinary Matters. An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (b) Fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matters, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this rule does not require disclosure of information otherwise protected by Rule 1.6. Rule 8.4 Misconduct. It is professional misconduct for a lawyer to: (d) Engage in conduct that is prejudicial to the administration of justice.

Respondent violated Rules 8.1(b) and 8.4(d) when he: Failed to respond to the complaint of Connie Marie Baker forwarded to Respondent by letter dated March 22, 2004; Failed to respond to Petitioner’s request for information dated April 9, 2004 by certified mail, return receipt requested; and Failed to respond to Petitioner’s repeated requests for documentation regarding Respondent’s medical condition, diagnosis, prognosis and recovery time which Respondent claimed as the cause for delay in Complainant’s Bankruptcy proceedings. Neither Petitioner nor Respondent took any written exceptions to the hearing judge’s findings of fact and conclusions of law. On 4 January 2006, Petitioner filed a Recommendation ⁵⁵⁸ for Sanction, recommending that Respondent be suspended indefinitely from the practice of law. Oral argument in this Court was set for 6 April 2006.

Two days before oral argument, Respondent filed a Motion for Reconsideration Based on Fraud, Deceit and Misrepresentation, in which he: (1) denied that he failed to answer the Petition for Disciplinary Action in a timely manner; (2) alleged that the Assistant Bar Counsel handling this matter pursued the case despite the Complainant’s request that it be dismissed; (3) claimed that the Assistant Bar Counsel violated Maryland Rule 16—731(d), which requires an investigation to be completed within 90 days after a complaint is filed, unless extension is granted by the Commission; (4) averred that the Assistant Bar Counsel pursued this matter in retaliation for Respondent’s allegation of misconduct against him in an earlier disciplinary case against Respondent, and that Bar Counsel refused to address the alleged abusive conduct of the Assistant Bar Counsel; and (5) asserted that the hearing judge was biased against him.

II

The Court of Appeals exercises original jurisdiction over attorney discipline proceedings. Attorney Grievance Comm’n v. Zdravkovich, 381 Md. 680, 693 , 852 A.2d 82, 90 (2004); Attorney Grievance Comm’n v. Harris, 371 Md. 510, 539 , 810 A.2d 457, 474 (2002). This Court has the ultimate authority to decide whether a lawyer has violated the professional rules. Attorney Grievance Comm’n v. Harrington, 367 Md. 36, 49 , 785 A.2d 1260, 1267 (2001).

We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous. Attorney Grievance Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006). As to the hearing judge’s conclusions of law, our consideration is essentially de novo, even where default orders and judgments have been entered at the hearing level. Harrington, 367 Md. at 49 , 785 A.2d at 1267-68 . ⁵⁵⁹ Either party may file post-hearing written exceptions to the findings and conclusions of the hearing judge.

Maryland Rule 16-758. 10 Maryland Rule 16—759(b)(2) provides: (2) Findings of fact. (A) If no exceptions are filed. If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any. (B) If exceptions are filed.

If exceptions are field, the Court of Appeals shall determine whether the findings of fact have been proven by the requisite standard of proof set out in Rule 16-757(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. Thus, if no exceptions are filed timely, we accept the hearing court’s findings of fact as established for the purposes of determining the appropriate sanction.

Attorney Grievance Comm’n v. Logan, 390 Md. 313, 319 , 888 A.2d 359, 363 (2005); Attorney Grievance Comm’n v. Christopher, 383 Md. 624, 638-39 , 861 A.2d 692, 700-01 (2004); Harrington, 367 Md. at 49 , 785 A.2d at 1267 . If a Motion for Reconsideration is filed subsequent to the filing of the hearing judge’s findings of fact and conclusions of law, this Court has the authority and the discretion to “order further proceedings ... as justice may require from our review of what is before us” even if the motion is untimely filed. 11 Attorney Grievance Comm’n v. Lee ⁵⁶⁰ (Lee I), 387 Md. 89 , 117 n. 25, 874 A.2d 897 , 913 n. 25 (2005). We may remand the proceedings to the hearing judge “[wjhen, subsequent to the evidentiary hearing before a judge, a respondent attorney produces ... new evidence that may be material to the matter, but was not introduced at the hearing. ...” Lee I, 387 Md. at 116 , 874 A.2d at 913 . After reviewing Respondent’s Motion for Reconsideration based on Fraud, Deceit and Misrepresentation, we do not find it necessary to remand this matter to the hearing judge for reconsideration because Respondent failed to suggest with specificity in his motion any new facts material to the matter that were not, or could not have been, adduced at the hearing.

See Lee I, 387 Md. at 115-20 , 874 A.2d at 912-15 (remanding the case to the hearing judge where the attorney presented in his Motion for Reconsideration newly discovered evidence that may impeach the credibility of a key witness and reflect positively on the credibility of the attorney in a case that depends heavily on witness credibility). The essence of Respondent’s allegations in his Motion is that the disciplinary proceedings prejudiced him in one way or another, but he did not, either in his motion or during oral argument before this Court, challenge the hearing judge’s factual findings that led to the inevitable conclusion that his conduct in question violated the rules as charged. Nonetheless, we choose to discuss one of Respondent’s asserted arguments to provide guidance in future attorney disciplinary proceedings. Respondent claims that “this case was pursued by Bar Counsel [ ] despite Complainant Baker’s request that it be dismissed prior to peer [rjeview,” and produced an affidavit signed by the Complainant in support of his assertion, implying that Bar Counsel should have dismissed the complaint if the Complainant so requests.

This evidence was not introduced by either party at the hearing. ⁵⁶¹ Bar Counsel is not obliged to dismiss a complaint solely at the complainant’s request. Maryland Rule 16—731(b) sets out the procedure for reviewing a complaint once it is filed with the Attorney Grievance Commission: (b) Review of complaint. (1) Bar Counsel shall make an appropriate investigation of every complaint that is not facially frivolous or unfounded. (2) If Bar Counsel concludes that the complaint is either