Attorney Grievance Commission v. Mitchell

BARBERA, C.J. On August 7, 2014, Petitioner, the Attorney Grievance Commission of Maryland (“the Commission”), filed in this Court a Petition for Disciplinary or Remedial Action (“the Petition”) against Respondent, Michael Bowen Mitchell, Jr. The Petition charged Respondent with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (competence); 1.2 (scope of representation and allocation of authority between client and lawyer); 1.3 (diligence); 1.4 (communication); 3.2 (expediting litigation); 8.1 (bar admission and disciplinary matters); and 8.4 (misconduct). These violations stemmed from Respondent’s representation of William J. Kolodner in two civil actions and his subsequent correspondence with Bar Counsel. By Order dated August 26, 2014, this Court designated the Honorable Lawrence P. Fletcher-Hill (“the hearing judge”) to conduct a hearing and make findings of fact and conclusions of law. On October 23, 2014, Petitioner served Respondent with the Petition, a Writ of Summons, and the Transmittal Order of the Court of Appeals.

Respondent did not respond within fifteen days as required by Maryland Rule 16-754(a), and Petitioner ²⁴⁸ therefore filed a Motion for Order of Default on November 25, 2014, in the Circuit Court for Baltimore City. Respondent similarly did not respond to that motion, and the hearing judge consequently entered an Order of Default on December 19, 2014. Respondent did not move to vacate that Order. Also on October 23, 2014, Petitioner served Petitioner’s First Set of Interrogatories; a Request for Production of Documents, Electronically Stored Information and Property; and a Request for Admissions of Facts and Genuineness of Documents.

Respondent failed to respond to those discovery requests. The hearing judge held a hearing on March 10, 2015, at which Respondent did not appear. At that hearing, Petitioner submitted as evidence its Request for Admissions and Proposed Findings of Fact and Conclusions of Law. On April 1, 2015, the hearing judge issued a Statement of Findings of Fact and Conclusions of Law, in which he concluded by clear and convincing evidence that Respondent violated MLRPC 1.1; 1.2(a); 1.3; 1.4(a) and (b); 3.2; 8.1(a) and (b); and 8.4(c) and (d).

Neither Petitioner nor Respondent filed exceptions to the hearing judge’s findings of fact or conclusions of law. Respondent did not appear before us for oral argument as to sanction. We issued a Per Curiam Order on September 29, 2015, disbarring Respondent immediately from the practice of law. We now explain the reasons for that Order.

I. As a consequence of Respondent’s default, the hearing judge deemed established the averments in the Petition. See Md. Rules 16-754(c), 2—613(f), 2-323(e). The hearing judge likewise deemed admitted the facts alleged in the Request for Admissions of Fact and Genuineness of Documents. See Md. Rules 16-756, 2-424(b).

Upon those submissions and Petitioner’s Proposed Findings of Fact and Conclusions of Law, which the hearing judge adopted essentially verbatim, the hearing judge made the following findings of fact by clear and convincing evidence. ²⁴⁹ Respondent was admitted to the Bar of the Court of Appeals of Maryland on December 15, 1999, and maintained a law office in Baltimore City, Maryland. In 2009, William J. Kolodner retained Respondent to represent him in two civil actions. The first action alleged that Levindale Hebrew Geriatric Center and Hospital (“Levindale”) and certain employees at that facility committed malpractice and assault/battery against Mr. Kolodner in 2008 (“the Levindale action”). Respondent filed a complaint in the Circuit Court for Baltimore City on April 15, 2011, well past the one-year statute of limitations for assault claims.

See Md.Code (1989, 2013 Repl. Vol.), § 5-105 of the Courts & Judicial Proceedings Article. On August 15, 2011, Respondent spoke to Mr. Kolodner via telephone about the Levindale action, during which Respondent advised Mr. Kolodner to dismiss the litigation for lack of expert medical testimony. Mr. Kolodner did not accept that advice and instead directed Respondent to file an amended complaint that eliminated any medical malpractice claims.

Respondent agreed to do so but did not file an amended complaint. Respondent failed to inform Mr. Kolodner that he did not intend to follow Mr. Kolodner’s instructions. Respondent then stipulated to dismiss the entire case with prejudice against all defendants on August 31, 2011, and failed to inform Mr. Kolodner of the dismissal. On September 29, 2011, Mr. Kolodner checked court records and discovered that the Levindale action had been dismissed.

Mr. Kolodner informed Respondent of his discovery that day, and Respondent promised to schedule a conference call for the following day to discuss the case. Respondent, however, did not arrange the conference call and failed to explain the status of the case to Mr. Kolodner. In addition, Respondent claimed during the September 29, 2011, phone call that he had uncovered a “little known law” that would allow him to re-file the lawsuit. Respondent did not inform Mr. Kolodner what that law was, and nothing ever came of Respondent’s alleged discovery. ²⁵⁰ The second action involved a claim that Mr. Kolodner’s health insurer, Blue Cross Blue Shield, improperly refused to reimburse him for costs incurred during his stay at Levindale (“the insurance action”).

Respondent filed a complaint against “Blue Cross and Blue Shield Association” in the Circuit Court for Baltimore City on July 25, 2011. The Circuit Court for Baltimore City dismissed the insurance action on January 10, 2012, because Respondent had not obtained service on Blue Cross Blue Shield. See Md. Rule 2-507. Respondent took no action to prevent the dismissal and did not ask the court to reinstate the case.

Respondent further failed to inform Mr. Kolodner that this lawsuit had been dismissed and the reason therefor. Respondent failed to communicate with Mr. Kolodner, respond to his requests for information, or keep him informed regarding the status of his eases throughout the course of the representation. Mr. Kolodner submitted a written complaint against Respondent to the Commission on May 4, 2012. Bar Counsel notified Respondent of the complaint.

Respondent sent a reply to Bar Counsel on June 5, 2012, claiming that he had named the wrong defendant in the insurance action but had filed an amended complaint and would serve the resident agent with the summons upon receipt from the Clerk. Respondent evidently attempted to file an amended complaint, but the Circuit Court for Baltimore City returned the amended complaint to Respondent on June 16, 2012, with the time/ date stamp crossed out because the case had been dismissed on January 10, 2012. Respondent failed to inform Bar Counsel that the amended complaint was not accepted and he accordingly would not be serving the resident agent. Respondent failed to disclose facts necessary to correct Bar Counsel’s misapprehension that this litigation was ongoing.

Based on Respondent’s representations in his June 5, 2012, letter to Bar Counsel, and his subsequent failure to correct the information contained therein, Bar Counsel decided not to take action on Mr. Kolodner’s May 4, 2012, complaint. Mr. Kolodner submitted another complaint to Bar Counsel on August 14, 2013, in which he contended that Respondent ²⁵¹ had not filed an amended complaint and had deceived the Commission in that regard. Upon receiving notification of Mr. Kolodner’s additional complaint, Respondent called Assistant Bar Counsel on August 29, 2013, again maintaining that he had filed an amended complaint and would forward a time/date stamped copy. On September 19, 2013, Bar Counsel received a letter from Respondent enclosing a purported amended complaint against Blue Cross Blue Shield; the document did not show marks crossing over the court’s time/date stamp.

Respondent’s letter did not inform Bar Counsel either that the amended complaint had not been accepted for filing or that the case had been dismissed in January 2012. The hearing judge found that Respondent made inconsistent, false, and misleading statements to Petitioner’s investigator during Petitioner’s investigation of Mr. Kolodner’s complaint. Based upon the above findings, the hearing judge concluded by clear and convincing evidence that Respondent’s conduct violated MLRPC 1.1; 1.2(a); 1.3; 1.4; 3.2; 8.1(a) and (b); and 8.4(c) and (d). II. “This Court has original and complete jurisdiction over attorney discipline proceedings in Maryland.” Attorney Grievance Comm’n v. Barton, 442 Md. 91, 119 , 110 A.3d 668 (2015) (quoting Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 28 , 69 A.3d 1121 (2013)).

Because neither Petitioner nor Respondent excepted to the hearing judge’s findings of fact, we shall treat those facts as established. See Md. Rule 16-759(b)(2)(A) (“If no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.”). We review de novo the hearing judge’s conclusions of law. Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 717 , 93 A.3d 262 (2014).

MLRPC 1.1 MLRPC 1.1 provides: ²⁵² A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. The hearing judge concluded that Respondent violated MLRPC 1.1 by faffing to file timely the complaint in the Levindale action; name the proper defendant in the insurance action and obtain service of process on that defendant; file timely the amended complaint in the insurance action and prevent that action from being dismissed for lack of jurisdiction before the January 2012 dismissal and thereafter; and keep Mr. Kolodner informed about the dismissals, thereby precluding Mr. Kolodner from seeking another attorney who better would protect his interests. An attorney violates MLRPC 1.1 when he or she fails to act with the requisite preparation and thoroughness in representing a client.

See, e.g., Attorney Grievance Comm’n v. Gage-Cohen, 440 Md. 191, 197 , 101 A.3d 1043 (2014). An attorney also violates this Rule when the attorney “fails to act or acts in an untimely manner, resulting in harm to his or her client.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 , 44 A.3d 344 (2012); see also Attorney Grievance Comm’n v. Haley, 443 Md. 657, 668 , 118 A.3d 816 (2015) (concluding that the respondent violated MLRPC 1.1 by faffing “to prepare and submit any pleadings or take any action in furtherance of [his client’s] case”). We agree with the hearing judge that Respondent’s failure to file a complaint in the Levindale action before the statute of limitations expired on the assault/battery claim demonstrated a lack of competence in violation of MLRPC 1.1. Attorney Grievance Comm’n v. Bleecker, 414 Md. 147, 170-72 , 994 A.2d 928 (2010) (concluding that the respondent violated MLRPC 1.1 by failing to file a complaint on behalf of his client within the statute of limitations).

Respondent also violated MLRPC 1.1 in connection with Mr. Kolodner’s insurance action. Although naming the wrong defendant in the initial complaint, in itself, may not rise to the level of an MLRPC 1.1 violation, ²⁵³ Respondent’s failure to realize and correct the error before the case was dismissed six months thereafter demonstrates incompetence in violation of MLRPC 1.1. Respondent similarly violated MLRPC 1.1 by failing to obtain service of process on the correct defendant, take any action to prevent the dismissal of the case, and attempt to have the case reinstated. See Attorney Grievance Comm’n v. Sperling, 432 Md. 471, 491 , 69 A.3d 478 (2013) (concluding that the respondent violated MLRPC 1.1 by failing to attempt to have his client’s case reinstated once it was dismissed for failure to serve the defendant).

MLRPC 1.2 MLRPC 1.2 provides, in pertinent part: (a) Subject to paragraphs (c) and (d), a lawyer shall abide by a chent’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client’s decision whether to settle a matter. The hearing judge concluded that Respondent violated MLRPC 1.2(a) by failing to follow Mr. Kolodner’s directions to file an amended complaint in the Levindale action and instead stipulating to the dismissal of the entire case with prejudice.

The hearing judge reasoned that this conduct constituted a failure to abide by the client’s explicit directions and further constituted an action outside of Respondent’s authority. An attorney violates MLRPC 1.2(a) by failing to follow the client’s instructions regarding a matter. See Haley, 443 Md. at 669 , 118 A.3d 816 (concluding that the respondent violated MLRPC 1.2(a) by failing to follow the client’s instructions). An attorney also violates MLRPC 1.2(a) by “failing] to inform a client of the status of his or her case, thereby denying the client the ability to make informed decisions.” Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 182 , ²⁵⁴ 118 A.3d 958 (2015).

For much the same reasons, the failure to take action on a case, resulting in its dismissal, violates MLRPC 1.2(a). See Sperling, 432 Md. at 492-93 , 69 A.3d 478 (concluding that the respondent’s failing to inform the client that her case was dismissed for failure to serve the defendant was a violation of MLRPC 1.2(a) because the client lost the “ability to make an informed decision as to the objectives of the representation”); see also Brown, 426 Md. at 320 , 44 A.3d 344 (holding that the respondent violated MLRPC 1.2(a) where his two clients’ “cases were dismissed for lack of prosecution due to Respondent’s inaction” and the respondent failed to inform his clients of the dismissals); Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 220 , 892 A.2d 533 (2006) (holding that the respondent’s inaction, resulting in the dismissal of his client’s case, violated MLRPC 1.2 because the respondent failed to follow the Ghent’s instruction to pursue the case and inform her of the status of the case). The hearing judge correctly concluded that Respondent violated MLRPC 1.2(a) by agreeing to comply with Mr. Kolodner’s request to file an amended complaint in the Levindale action but instead stipulating to its dismissal with prejudice. That conduct was in direct contravention of Mr. Kolodner’s explicit directions.

See Haley, 443 Md. at 669 , 118 A.3d 816 . Respondent’s failure to take action in the insurance case, and to inform Mr. Kolodner of its dismissal, also violated MLRPC 1.2(a) because it deprived Mr. Kolodner of the “ability to make an informed decision as to the objectives of the representation.” Sperling, 432 Md. at 492 , 69 A.3d 478 ; Reinhardt, 391 Md. at 220 , 892 A.2d 533 . MLRPC 1.3 MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and promptness in representing a client.” The hearing judge concluded that Respondent did not act with reasonable diligence because he did not file the Levindale action until two years after he was retained by Mr. Kolodner, which was beyond the statute of limitations for the assault/battery claim; he failed to advance Mr. Kolodner’s interests by ²⁵⁵ stipulating to the dismissal of the Levindale action without Mr. Kolodner’s consent; he named the wrong defendant in the insurance action, allowing the court to dismiss that lawsuit for lack of jurisdiction; he failed to ask the court to reinstate the insurance action; and he failed to inform Mr. Kolodner of the dismissal and otherwise keep the client informed as to the status of the two cases. We agree with the hearing judge that Respondent violated MLRPC 1.3 by filing a complaint in the Levindale action two years after he was retained by Mr. Kolodner, thereby allowing the statute of limitations on the assault/battery claim to expire.

See Attorney Grievance Comm’n v. Lee, 393 Md. 385, 403 , 903 A.2d 360 (2006) (concluding that the respondent violated MLRPC 1.3 by failing to review the client’s case documents until nearly two years after the respondent was retained and to prepare written pleadings as promised); see also Attorney Grievance Comm’n v. Davy, 435 Md. 674, 699-700 , 80 A.3d 322 (2013) (concluding that the respondent violated MLRPC 1.3 by not filing a complaint until 9:11 p.m. on the day the statute of limitations expired, failing to correct the deficiency that caused the court to reject it, and failing to notify the client that the complaint had been rejected). Respondent further violated MLRPC 1.3 by failing to serve the correct defendant in the insurance case and thereafter failing to take any action to prevent that case from being dismissed. See Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 398 , 946 A.2d 1009 (2008) (holding that the respondent violated MLRPC 1.3 by failing to secure service of process on the defendant or take action to prevent the court from dismissing the case for lack of prosecution). Respondent, moreover, waited five months after the insurance case was dismissed before attempting to file an amended complaint, doing so only after Mr. Kolodner had submitted a complaint to the Commission.

This conduct likewise demonstrates a lack of diligence in violation of MLRPC 1.3. See Attorney Grievance Comm’n v. Shapiro, 441 Md. 367, 383 , 108 A.3d 394 (2015) (“The decision to do nothing promptly when an attorney learns ²⁵⁶ the case was dismissed violates MLRPC 1.3.”) (alterations and internal quotation marks omitted). MLRPC 1.4 MLRPC 1.4 provides: (a) A lawyer shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the lawyer’s conduct when the lawyer knows that the