Attorney Grievance Commission v. McCoy

BELL, Chief Judge. In this case, Bar Counsel, acting at the direction of the Review Board, see Maryland Rule 16-709, 1 and prompted by a complaint filed with his office and the disbarment of Thomas V. McCoy, the respondent, a member of the Delaware bar, by the Supreme Court of Delaware, pursuant to a complaint filed by clients, whom the respondent represented in a medical malpractice action, and with one of whom he had financial dealings, filed a Petition For Disciplinary Action against the respondent, charging the respondent with various, and multiple, violations of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812, seeking reciprocal and other sanctions. Based on the complaint of the clients, the petition alleged that the respondent violated Rules 1.3, Diligence, 2 1.4, Communication, 3 1.16(a), Declining or Terminating ²²⁹ Representation, 4 3.2, Expediting Litigation, 5 8.1(b), Bar Admission and Disciplinary Matters, 6 and 8.4(d), Misconduct. 7 He was charged, in connection with the reciprocal proceedings, with virtually the same violations that the Supreme Court of Delaware sustained, 8 i.e, Rules 1.2(a), Scope of Representation, 9 1.3, 1.15, Safekeeping ²³⁰ Property, 10 1.16(d), 3.4, Fairness to Opposing Party and Counsel, 11 8.1(b), and 8.4(d). We referred the case to the Honorable Thomas E. Noel, of the Circuit Court for Baltimore City, for hearing. 12 See 16-711.a. 13 Following the hearing, the hearing court made findings of fact, as follows: ²³¹ “BC Docket No. 2000-472-00-8 Complaint of Jane and Wayne Nock “On or about June 24, 1999, the Respondent filed a civil action in the Circuit court for Baltimore City on behalf of his clients, Jane C. and Wayne E. Nock (hereafter “the Nocks”).

The Nocks, residents of Delaware, were suing Walker L. Robinson, M.D. Dr. Robinson practiced medicine in Baltimore, Maryland. On or about December 8, 1999, Dr. Robinson filed an Answer to the Complaint. Thereafter, the Respondent failed to pursue the litigation on behalf of the Nocks. “The Respondent failed to comply with the Circuit Court’s Scheduling Order with regard to the designation of expert witnesses and failed to communicate with the Nocks concerning the status of their litigation. The Respondent abandoned the Nocks without explanation or advice, failed to notify the Nocks of his decertification by the Court of Appeals on April 12, 2000, 14 failed to withdraw his appearance and failed to appear at hearings set by the Circuit Court for Baltimore City. “BC Docket No. 2001-269-00-3 Complaint of Bar Counsel “By Opinion and Order of the Supreme Court of the State of Delaware dated January 17, 2001, Respondent was found to have violated the Delaware Lawyers’ Rules of Professional Conduct (DLRPC), specifically, DLRPC 1.2(a), failing to abide by a client’s decision, DLRPC 1.3, failing to act with diligence and promptness in representing a client, DLRPC 1.15(a), commingling funds, DLRPC 1.15(b), failing to promptly deliver funds to a client upon request, DLRPC 1.15(d), failing to maintain proper books and records, DLRPC 1.16(d), failing to take reasonable steps to protect a client’s interest upon termi ²³² nation of representation, DLRPC 3.4(c), knowingly disobeying the Court of Chancery’s Order to cooperate with the Receivers and knowingly refusing to fulfill his annual registration obligations, DLRPC 8.1(b), willfully failing to respond to the office of Disciplinary Counsel’s request for information, and DLRPC 8.4(d), engaging in conduct that was prejudicial to the administration of justice. “The facts underlying the findings of the Delaware Court are as follows.

On or about July 1998, the Respondent began giving Jane Nock advice with regard to her business, Delaware Heritage Basket Company (hereafter “DHB”). In return for his legal services, Ms. Nock offered to give the Respondent twenty-five percent (25%) of the business. In August 1998, Ms. Nock’s business checking account was closed by her bank due to a series of checks having been written with insufficient funds. Respondent allowed checks and deposits relating to DHB to be processed through one of his bank accounts.

Client funds were commingled with the Respondent’s own funds and transactions. “In September 1998, Ms. Nock’s financial difficulties became acute as the police seized her records and her arrest was imminent. She apparently had a falling out with Respondent and retained new counsel, John Sandy. Mr. Sandy then sought return from Respondent of all funds being held in his possession on behalf of Ms. Nock. “Although Respondent recognized that he owed Ms. Nock money in December 1998, the Respondent did not pay these funds until June 1999 when the Delaware Office of Disciplinary Counsel instructed him to do so. Because Respondent did not maintain adequate records relating to Ms. Nock’s business, the amount that Respondent calculated he owed Ms. Nock could not be substantiated. “In another matter, the Respondent represented Joseph Mascelli during the period November 1997 to April 1999 in the matter of a judgment entered against Mr. Mascelli in connection with a debt on a lease of commercial real estate.

Respondent failed to carry out his client’s instructions to resolve the ²³³ matter and, as a result, subjected his client to actions by the sheriff against his assets. Respondent failed to return promptly the seven hundred fifty dollar ($750) retainer paid by Mr. Mascelli. “The Respondent failed to respond in a timely manner to requests by the Delaware Office of Disciplinary Counsel with regard to both the Nock and the Mascelli matters and failed to provide the Supreme Court of Delaware with the required 1999 annual registration statement or to pay the required registration assessment. On July 13, 1999, the Supreme Court held a hearing on a rule to show cause why the Respondent should not be suspended from practice. The Respondent failed to appear and the Supreme Court of Delaware issued an Order suspending Respondent indefinitely. “Thereafter, Respondent failed to communicate with the Office of Disciplinary Counsel and, on July 16, 1999, two Receivers were appointed by the Court of Chancery.

The Order specifically obliged Respondent to cooperate with and assist the Receivers in notifying and protecting the interests of his clients. Respondent failed to cooperate with or assist the Receivers, failed to respond to repeated attempts by the Receivers to communicate with him about receivership matters, failed to promptly provide the Receivers, upon their repeated requests, with his active client files and related information about pending client matters or with certain accounting records for his law practice, and failed to provide the Receivers with access to his law office so that the Receivers could readily obtain client files and other information needed to carry out their obligations pursuant to the Court of Chancery’s Order. Respondent also failed to assist the Receivers in their efforts to deal with his non-compliant real estate escrow account. “The Respondent’s conduct resulted in a great burden to the Receivers and was prejudicial to the interests of his clients, many of whom were in bankruptcy, in their active legal matters. The Respondent’s lack of cooperation and failure to ²³⁴ turn over account ledgers made it difficult for the Receivers to make a determination as to refunds owed to clients.” On these findings, the hearing court concluded, as to the Nocks’ complaint, that the respondent violated each of the rules charged, except 1.16 and 8.1, as to which it made no findings at all.

As, to Bar Counsel’s complaint, noting that, pursuant to Maryland Rule 16-710.e, a final adjudication in a disciplinary proceeding by a judicial tribunal as to an attorney’s guilt of misconduct is conclusive proof of that misconduct, and thus clear and convincing evidence of its commission, the healing court concluded that the respondent violated the Maryland Rules corresponding to those that the Delaware Supreme Court had determined that the respondent had violated. No exceptions have been taken to the hearing court’s findings of fact and conclusions of law. The petitioner has, however, recommended a sanction, that the respondent be disbarred. This sanction is justified, the petitioner submits, by the findings of the hearing court in the Nocks’ matter, as well as by the findings of the Delaware Supreme Court in the reciprocal discipline case.

In addition, the petitioner informs us that the respondent has a prior history of disciplinary action, this Court, in 1998, having previously reprimanded the respondent, who consented to that sanction after he had been found by the Supreme Court of Delaware to have violated that State’s counterparts of Maryland Rules 1.3, 1.4 and 8.4(a) 15 and (d). The findings of fact made by the hearing court are reviewed to determine if they are based on clear and convincing evidence, Attorney Griev. Comm’n v. Powell, 328 Md. 276, 287 , 614 A.2d 102, 108 (1992); Attorney Griev. Comm’n v. Clements, 319 Md. 289, 298 , 572 A.2d 174, 179 (1990).

Indeed, the “hearing court’s findings of fact are prima facie correct ²³⁵ and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Griev. Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997) (citing Attorney Griev. Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993)). Moreover, in reciprocal discipline cases, as the hearing court noted, “[al final adjudication in a disciplinary proceeding by a judicial tribunal ... that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.” Rule 16-710(e).

See Attorney Griev. Comm’n of Md. v. Richardson, 350 Md. 354, 365-66 , 712 A.2d 525, 530-31 (1998); Attorney Griev. Comm’n v. Gittens, 346 Md. 316, 324 , 697 A.2d 83, 87 (1997); Attorney Griev. Comm’n v. Willcher, 340 Md. 217, 221-22 , 665 A.2d 1059, 1061 (1995); Attorney Griev.

Comm’n v. Saul, 337 Md. 258, 267-68 , 653 A.2d 430, 434 (1995); Attorney Griev. Comm’n v. Hopp, 330 Md. 177, 185-86 , 623 A.2d 193, 197 (1993); Attorney Griev. Comm’n v. Sparrow, 314 Md. 421, 425-26 , 550 A.2d 1150, 1152 (1987); Attorney Griev. Comm’n v. Parsons, 310 Md. 132, 142-43 , 527 A.2d 325, 330 (1987); Attorney Griev.

Comm’n v. Haupt, 306 Md. 612, 614-15 , 510 A.2d 590, 591-92 (1986); Attorney Griev. Comm’n v. Bettis, 305 Md. 452, 455 , 505 A.2d 492, 493 (1986); Attorney Griev. Comm’n v. Moore, 301 Md. 169, 171 , 482 A.2d 497, 498 (1984); Attorney Griev. Comm’n v. Rosen, 301 Md. 37, 39 , 481 A.2d 799, 800 (1984).

There is sufficient evidence to support the hearing court’s findings with respect to the Nocks’ matter. Consequently, those findings are not clearly erroneous. In addition, that the respondent