Attorney Grievance Commission v. Manger

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 filed a Petition For Disciplinary Action against William Henry Manger, the respondent. The petition charged that the respondent violated Rules 1.1, 1.3, Diligence, 2 Competence, 3 1.4, Communication, 4 1.5, ¹³⁶ Fees, 5 3.1, Meritorious Claims and Contentions, 6 and 8.4, Misconduct, 7 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. We referred the case, pursuant to Rules 16-752(a), 8 to the Honorable Paul A. Hackner, of the Circuit Court for Anne ¹³⁷ Arundel County, for hearing pursuant to Rule 16-757(e). 9 At the hearing, the petitioner and the respondent stipulated to the following facts and that they “are established by clear and convincing evidence:” “1. Respondent, William Henry Manger, is 75 years old.

He holds a B.A. degree from Loyola College in Baltimore (1953) and the LL.B. Degree from Georgetown University (1958). He was admitted to the Maryland Bar on October 24, 1958 and subsequently became a member of the bars of the District of Columbia and California. Respondent is now and at all times relevant to this proceeding was in the active practice of law in Maryland. He is no longer a member of the D.C. or California bars. “2.

Respondent has been an attorney for 48 years. His legal practice has concentrated primarily on securities, corporate, franchise and insurance law and related litigation. Respondent has had very little civil trial experience in Maryland courts and virtually no experience litigating family law/custody matters in any jurisdiction where he is or was admitted to practice. “3. Alba Elena Miller, f/k/a Alba Elena Rodriquez (the ‘Complainant’) met with Respondent on or about May 4, 2002 to consult with him about custody issues arising between her and her ex-husband.

Complainant had been denied legal joint custody of her two children and only limited visitation largely due to a diagnosis that she suffered from bipolar disorder with paranoid tendencies. After the ¹³⁸ initial consultation Respondent, by letter dated May 6, 2002, confirmed the May 4th meeting and proposed the terms upon which he would represent her which included, inter alia, the waiver of fees for the initial meeting on May 4th; an hourly rate of $ 150 per hour; reimbursement of all out of pocket expenses; and a request for an initial retainer of $1,000. Respondent also stated in this letter that he would provide detailed monthly billing statements. Petitioner’s exhibit 1, tab 2. “4.

By letter dated November 4, 2002, Respondent acknowledged meeting with Complainant on that date and agreed, contrary to his previous letter of May 6, 2002, to undertake representation of Complainant with the acknowledged receipt of a $150 retainer instead of the $1000 previously proposed. Respondent was aware that the Complainant had limited income and agreed to allow the Complainant to make payments as she was able. Petitioner’s exhibit 1, tab 3. “5. Subsequently, Respondent prepared a Petition to Set Aside or Modify a Consent Custody Order Dated April 29, 2001 with the Circuit Court for Anne Arundel County, Case No. C-98-47502 DV, and filed it on January 24, 2003.

Petitioner’s exhibit 1, tab 9-32. Respondent supported his Petition with an affidavit from Complainant, declarations of persons who knew Complainant to the effect that she exhibited no signs of mental illness and a Memorandum of Law. Respondent’s theory of the case was that Complainant had been falsely diagnosed with bipolar disorder with paranoid tendencies, that the licensed psychologist who made the diagnosis was incompetent to do so, and that the psychiatric community is engaging in ‘pseudo science’ when diagnosing and treating mental disorders. “6. In preparing the Petition, Respondent did not consult the Maryland Rules, statutes or case law concerning child custody. “7.

The Memorandum of Law cited no statutes, cases or court rules. Rather, it discussed Complainant’s history as an immigrant to the United States, cross-cultural differ ¹³⁹ enees vis-a-vis marriage, alleged mental and physical abuse she had suffered from her ex-husband and an attack on the licensed psychologist’s competence to administer and interpret the psychological evaluation given to Complainant. He concluded the Memorandum with an attack on the psychiatric profession and supplied references to works of academic psychologists as well as copies of articles from newspapers and academic journals. Respondent has stated that he did not intend to retain any expert witnesses to rebut the Complainant’s psychological evaluation because he wanted to spare Complainant the expense and because he believed members of the psychological profession are hesitant to testify against one another. “8.

Complainant relied on Respondent to determine the correct legal actions to take. On or about March 6, 2003, Complainant received a billing statement from Respondent seeking payment in excess of $25,000. Complainant refused to pay the bill and terminated Respondent’s services. “9. On or about December 15, 2003 Respondent received a telephone call from Complainant’s ex-husband informing Respondent that the Complainant had testified under oath that Respondent had given her advice that it was legal for her to obtain a copy of her ex-husband’s credit report.

Respondent assumed that Complainant’s testimony had been given during a hearing. Respondent denies ever having given Complainant such advice and considered her statement to be ‘defamatory.’ “10. On or about December 18, 2003, Respondent filed suit in the District Court of Maryland against Complainant for his unpaid fees. The Complainant prayed a jury trial before the Circuit Court and Respondent amended his Complaint to add a count for defamation, praying for compensatory and punitive damages.

Petitioner’s Exhibits 5 and 6. “11. Respondent has been the subject of earlier disciplinary proceedings in California and Maryland. Respondent was charged with various acts of professional misconduct during his practice in California for which, on August 22, ¹⁴⁰ 1990, the Supreme Court of California suspended him from practice for three years. The execution of the suspension was stayed and Respondent was placed on probation for three years on condition that he be suspended for 90 days and complied with various other conditions.

The misconduct grew out of several complaints involving his willful failure to perform his professional duties, to refund unearned fees, to communicate with clients or withdraw from representation in a proper and timely manner. See Attorney Grievance Commission of Maryland v. William Henry Manger, Misc. Docket (Subtitle BV) No. 32 (Md. Ct.App. filed June 25, 1993) (Per curiam). Petitioner’s Exhibit 7. “12.

In 1993, Respondent was suspended from practice in Maryland for 90 days as a result of the California suspension. Respondent subsequently applied to the Maryland Court of Appeals for reinstatement and his petition was granted by Notice and Order dated September 12, 1994. Petitioner’s Exhibit 7. “13. Respondent states that his financial circumstances require him to continue to practice law for as long as possible.

A lack of work and income, at the time he was engaged by the Complainant, was the principal motivation for accepting Complainant’s matter. “14. Respondent has recently developed and has the potential to develop significant new business, all of which is transactional in nature and generally falls within his previous legal experience. Respondent’s Exhibit 1.” The respondent and the complainant also testified, as to which the hearing court found, by a clear and convincing standard, the following. The complainant and the respondent disagreed as to the number of times, and when, the respondent billed the complainant.

She contended that she received only one bill from her engagement of the respondent in November 2002 to March 2003, while the respondent maintained that he sent three. The court determined that he sent two, finding the respondent’s testimony as to the November bill he claimed to ¹⁴¹ have sent not to be credible: inter alia, perusal of the bill revealed time and expenses that post-dated the date of the bill and the “language” of the cover letter to the January bill, which the court found was sent to the complainant, “makes it clear that the January statement was the initial statement sent to” the complainant. The hearing court also made findings with regard to the value of the respondent’s work to the complainant as well as its nature and significance: “A significant portion of Respondent’s activity, for which he billed his client, was aimed at educating himself on mental health issues, so that he could challenge the opinions of Dr. Gombatz, which had been relied upon by the court in earlier proceedings. However, the knowledge gained by Respondent as a result of this research would have had limited utility in the presentation of his client’s case.

It might have been useful for Respondent to have a general understanding of the mental health issues involved in the case in order to effectively examine witnesses. However, Respondent’s education at his client’s expense went too far. It should have been apparent to the Respondent that he would not be a witness in the case and that educating himself was not a substitute for presentation of expert testimony on the mental health issues. “The bulk of Respondent’s research was of a general nature and should not have been billed to the client. A client who engages counsel has a right to expect that the attorney will have sufficient general knowledge to competently represent her.

While it may be appropriate to charge a client for case-specific research or familiarization with a unique issue involved in a case, general education or background research should not be charged to the client. “Similarly, the significant amount of time that Respondent devoted to preparing a memorandum to accompany the Petition to Set Aside or Modify the Custody Order, as well as the submission of witness declarations in support of the Complainant, were essentially pointless. While it might have been useful to interview potential witnesses and even ¹⁴² obtain their statements for his file, Respondent should have realized that these declarations consisted of inadmissible hearsay. The trial court could not have considered the declarations to prove the substance of the witness statements. “The Court also finds that the Complainant was excessively billed for administrative activities and other items that should have been absorbed as office overhead, such as looking up zip codes, making up Rolodex cards and the like. Complainant should not have been charged for such items at all, and certainly not at an attorney’s hourly rate.” The quality of the respondent’s work on behalf of the complainant and, therefore, his competence did not escape scrutiny.

Noting that, in representing the complainant in her attempt to have a custody order, entered by consent more than a year earlier, modified, the respondent was required to “establish that a material change in circumstances has occurred,” the hearing court found that, instead, the “Respondent focused his significant efforts on a quixotic attempt to establish that the court was wrong when it entered the custody order in the first place.” Although the respondent’s efforts were extensive, they were not the efforts of a competent lawyer, for such a lawyer would not have failed to recognize the lack of viability of that approach. That he did not, the hearing court determined, indicated that the respondent “failed to demonstrate the knowledge, thoroughness, skill, and preparation required of a competent attorney with respect to his representation of the Complainant.” As indicated the hearing court was satisfied that the respondent’s efforts were extensive. It also found that he “worked extremely hard on behalf of his client,” communicating with her regularly; during the representation he was in communication with the complainant, through face to face meetings, emails letters and telephone calls, on more than fifty occasions. Thus, the hearing court found: “while the Respondent’s efforts may have been largely pointless, there can be no doubt that they were substantial.

There was no indication that the ¹⁴³ client was ever concerned that she was not being kept up-to-date about the progress of her case.” Based on the foregoing factual findings, the hearing court concluded that the respondent violated Rules 1.1, 1.5(a), 3.1 and 8.4(d). As to Rule 1.1, the respondent conceded that it was violated by his conduct of the representation of the complainant, acknowledging, “on reflection, the relevant rules of court, rules of evidence, case law, and the Maryland Rules of Professional Conduct demonstrate that his theory of the case, strategy, tactics and time expended on the matter were erroneous and misplaced and did not rise to the level of competent representation.... ” The Rule 1.5(a) violation was based on his bills to the complainant being excessive and unreasonable, consisting of “billings [that] included extensive activity that would not further the goals of the client, ... constituting] general background readings not billable to a client and clerical and administrative tasks that should be a part of the attorney’s general overhead.” Bringing an action for defamation against his former client, without having conducting legal research into its viability and without appreciating that “Maryland law provides for a broad privilege for allegedly defamatory statements in judicial proceedings,” or that doing so “likely [would] erode the public confidence in the legal profession,” sufficiently supported the Rule 3.1 and 8.4(d) violations. The respondent conceded the appropriateness of the trial court’s conclusion that his conduct in this regard was prejudicial to the administration of justice. On the other hand, the hearing court determined that the respondent did not violate Rules 1.3 or 1.4(b).

As to the former, the court was satisfied that, despite his other shortcomings, 10 [the respondent] acted with extraordinary diligence and promptness in representing [the complainant].” That this was so was reflected in the respondent’s billing statements. ¹⁴⁴ While the respondent’s compliance with Rule 1.4(b) was not perfect, the hearing court was not persuaded that the delay, from November to January, in submitting a billing statement, required to be submitted monthly, was a violation, “particularly in view of the frequent communications between the parties,” which was established by the billing statements themselves. The hearing court noted that the respondent had a disciplinary history. He was disciplined in 1990 by the Supreme Court of California for “various acts of professional misconduct during his practice in California.” As a result, in 1993, this Court imposed reciprocal discipline, a 90 day suspension. There also were mitigating circumstances in this case, the hearing