Attorney Grievance Commission v. Monfried

RAKER, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against William Michael Monfried, respondent, alleging viola ³⁷⁷ tions of the Maryland Rules of Professional Conduct (hereinafter “MRPC”). The Commission charged respondent with violating MRPC 1.1 (Competence), 1 1.3 (Diligence), 2 1.4 (Communication), 3 1.5 (Fees), 4 8.1 (Bar Admission and Disciplinary ³⁷⁸ Matters), 5 and 8.4 (Misconduct). 6 We referred the matter to Judge Kaye Allison of the Circuit Court for Baltimore City to make findings of fact and proposed conclusions of law. Following an evidentiary hearing, Judge Allison concluded that respondent violated Rules 1.1, 1.3, 1.4, 8.1(b), and 8.4. 7 Respondent filed exceptions to Judge Allison’s findings, and Bar Counsel excepted to Judge Allison’s failure to find that respondent violated MRPC 1.5.

Judge Allison made the following Findings of Fact and Conclusions of Law: Findings of Fact “By clear and convincing evidence, the Court finds the following facts: 1. Respondent was admitted to the Bar in Maryland on June 21,1973. 2. At the time of the hearing before the Circuit Court for Baltimore City on April 9, 2001, respondent maintained ³⁷⁹ an office for the practice of law and his residence at 730 Bethel Street, Baltimore, MD 21231. Matter of the Representation of Terrelle Hartley 3.

Joyce Ann Hartley, Terrelle Hartley’s mother, agreed to pay respondent $450.00 to represent her son, Terrelle Hartley. On July 1, 1999 she paid him $350.00 cash for this purpose. 4. Respondent entered his appearance on behalf of Ter-relle Hartley in a juvenile matter in Baltimore County on July 2 or 3,1999. 5. At sometime after respondent entered his appearance on the first matter, Matter # 1, Terrelle was arrested on a second matter, Matter # 2, and the respondent was contacted by someone connected with juvenile services administration in Baltimore County.

Following this call, respondent contacted Joyce Ann Hartley who declined respondent’s representation of Terrelle on Matter # 2 citing financial reasons. 6. Respondent never indicated to Joyce Ann Hartley that he would not represent Terrelle unless he was paid the remaining $100.00 in advance of the hearing. 7. Joyce Ann Hartley was prepared to pay respondent the remaining $100.00 at the scheduled hearing of Matter # 1 on August 18, 1999. 8. Respondent kept no file or notes on Terrelle Hartley and had no record of receipt of the $350.00 paid to him by Joyce Ann Hartley. 9.

Respondent did not execute any retainer agreement or other document with Joyce Ann Hartley formalizing his representation of her son, Terrelle. 10. Hearing was scheduled on Terrelle’s Matter # 1 for August 18, 1999 at 1:00 p.m. 11. Respondent did not appear at the hearing scheduled for August 18, 1999 nor did he request a postponement or otherwise contact the Court or his client. ³⁸⁰ 12. Terrelle and Joyce Ann Hartley were present at the hearing on Matter # 1. 13.

Respondent did not receive notice of the August 18, 1999 hearing. 14. On one occasion prior to the August 18, 1999 hearing, Joyce Ann Hartley reached respondent by telephone to discuss Terrelle’s case, but respondent said it was too soon to discuss it and ended the conversation. 15. Joyce Ann Hartley attempted, repeatedly, to contact the respondent at the telephone numbers he had given her, but was unable to reach him. 16. On August 18, 1999, after respondent failed to appear at Terrelle’s hearing on Matter # 1, Master Richard Gilbert of the Circuit Court for Baltimore County called respondent’s office and left a voice mail message on the respondent’s electronic recorder regarding the missed hearing. 17.

Master Gilbert never received a response to the voice recording he left for the respondent. 18. Terrelle Hartley’s Matter # 1 was rescheduled for September 17,1999 together with Matter # 2. 19. Notice of the rescheduled hearing on September 17, 1999 was sent to respondent at the address on his entry of appearance form. 20. Respondent did not appear on behalf of Terrelle Hartley on Matter # 1 on September 17, 1999 nor did he seek a postponement or otherwise contact the Court or his client. 21.

At no time did respondent withdraw his appearance on behalf of Terrelle Hartley. 22. At no time did respondent communicate to the • Court, Terrelle or Joyce Ann Hartley that he would withdraw his representation of Terrelle Hartley. 23. At no time did Terrelle or Joyce Ann Hartley communicate to respondent that they wished him to withdraw his appearance of Terrelle. ³⁸¹ 24. Respondent did not take any affirmative steps to determine Terrelle Hartley’s first or second hearing dates on Matter # 1. 25.

At the September 17, 1999 hearing a second attorney, Robert Lennon (the attorney of record for Terrelle on Matter # 2) entered his appearance on behalf of Terrelle Hartley on Matter # 1. 26. Respondent did not make arrangements to have Mr. Lennon or any other attorney enter his appearance for Terrelle Hartley on Matter # 1, nor did he discuss Matter # 1 with any attorney including Mr. Lennon. 27. Respondent never offered any explanation to Joyce Ann Hartley regarding his failure to appear, and he failed to return her telephone calls to him after the August 18, 1999 hearing at which he did not appear. 28. Respondent did not reimburse Joyce Ann Hartley the $350.00 paid to him for representation of Terrelle Hart-ley. 29.

Respondent never interviewed or otherwise spoke to Terrelle Hartley. 30. Respondent failed to substantively communicate with Joyce Ann Hartley regarding Terrelle Hartley’s case from July 2, 1999 to September 17,1999. 31. Respondent never appeared on behalf of Terrelle Hartley; nor did he file any pleadings or other documents on behalf of Terrelle. Respondent requested no, and received no, discovery in Terrelle’s case.

Respondent obtained no police reports. Respondent knew the name of the identifying witness in Terrelle’s case, but did not interview the witness. 32. Glenn M. Grossman, Bar Counsel, wrote to respondent on October 20, 1999 requesting that respondent respond to the letter, dated September 20, 1999, received by the Attorney Grievance Commission from Master Richard J. Gilbert. Bar Counsel reiterated his request by letter dated November 10, 1999.

A final request to respond to Master Gilbert’s letter was made of respondent by letter dated December 3, 1999. ³⁸² 33. Respondent did not respond to the inquiries of Bar Counsel dated October 20, 1999; November 10, 1999; and December 3,1999. Matter of the Representation of Michael Windsor 1. On or about August 5, 1999, respondent met with Michael Windsor’s mother, Mary L. Windsor, at her home to discuss Michael’s revocation of parole. 2.

On or about August 5, 1999, respondent was retained to represent Michael Windsor in connection with the revocation of his parole. 3. On or about August 5, 1999, respondent was paid $1000.00 by Mary L. Windsor for his representation of Michael Windsor. The $1000 .00 was a flat fee to perform the following services: 1) meet with Michael at the correctional facility in Maryland; 2) obtain a date for Michael’s revocation hearing; and 3) represent Michael at the revocation hearing. 4. Respondent did not execute any retainer agreement or other document with Ms. Windsor formalizing his representation of Michael. 5.

Respondent did not meet with Michael Windsor at the correctional facility. 6. On more than one occasion respondent spoke to Michael Windsor on the telephone when Michael Windsor called him from the correctional facility. 7. During a telephone conversation with Michael Windsor, respondent agreed to meet with Michael, but he did not. 8. In subsequent calls made by Michael Windsor to respondent, respondent’s telephone was disconnected and Michael could not reach respondent. 9.

Michael Windsor requested his mother, Mary Windsor, attempt to reach respondent. 10. Mary Windsor attempted to telephone respondent in advance of the August 16, 1999 healing date and the telephone was disconnected. ³⁸³ 11. Respondent telephoned the Parole Commission to request a hearing date for Michael Windsor on two or three occasions shortly after August 8, 1999. 12. The Parole Commission scheduled a hearing for Michael Windsor for August 16, 1999. 13.

Michael Windsor learned of the hearing from correctional authorities, not respondent. 14. Respondent did not memorialize the contents of his conversation with the Parole Commission employees with whom he spoke in any memorandum, note or file notation. 15. Respondent wrote on a legal pad the name of one of the Parole Commission employees with whom he spoke, but did not retain the legal pad. 16. Respondent could not remember the name of the Parole Commission employees with whom he spoke. 17.

Respondent never received any written communication from the Parole Commission regarding Michael Windsor’s hearing date. 18. At no time did respondent communicate the August 16, 1999 date to Michael or Mary Windsor or to Michael’s girlfriend. 19. Respondent did not communicate to Michael or Mary Windsor or Michael’s girlfriend that he had arranged the hearing for August 16, 1999 until after Mary Windsor’s complaint was filed with the Attorney Grievance Commission. 20. Respondent did not inform Michael or Mary Windsor or Michael’s girlfriend that he would not be present at the hearing. 21.

Prior to the August 16, 1999 hearing date, respondent held the opinion that Michael would be released after the hearing, but he did not communicate that opinion to Michael or Mary Windsor or to Michael’s girlfriend. 22. Respondent was on vacation on August 16, 1999, and did not attend the parole revocation hearing for Michael Windsor. ³⁸⁴ 23. Respondent was in Baltimore, Maryland moving his residence and office during the vacation week that included August 16,1999. 24. At the August 16, 1999 parole revocation hearing Michael Windsor waived his right to be represented by counsel and proceeded without representation. 25.

The August 16, 1999 hearing lasted for approximately one hour and 45 minutes. 26. - Michael Windsor was released after the August 16, 1999 hearing, but lost ‘street time’ and ‘good conduct’ days. 27. Michael and Mary Windsor and Michael’s girlfriend received no explanation or communication from respondent despite Ms. Windsor’s October 1, 1999 letter to respondent requesting an explanation. 28. Glenn M. Grossman, Bar Counsel, wrote to respondent on November 2 and 29, 1999 regarding the complaint filed by Mary Windsor. Respondent responded by letter received on December 13,1999. 29.

By letters dated December 14, 1999; January 12, 2000; and January 24, 2000, Bar Counsel requested further information from respondent, but respondent did not answer Bar Counsel’s request for further information. Conclusions of Law 1 Matter of the Representation of Terrelle Hartley Respondent violated the following rules of the Maryland Rules of Professional Conduct in his representation of Ter-relle Hartley. Rule 1.1 Competence ³⁸⁵ 1. Respondent violated Rule 1.1 when respondent failed to undertake the preparation reasonably necessary for the representation of Terrelle Hartley’s case by failing to interview his client and by failing to undertake any investigation from the date respondent entered his appearance, July 2 or 3, 1999, until the date of the second hearing, September 17,1999.

Rule 1.3 Diligence 2. Respondent violated Rule 1.3 when respondent failed to act with reasonable diligence and promptness when he failed to interview his client or undertake any investigation from the date respondent entered his appearance, July 2 or 3, 1999, until the date of Terrell’s second hearing, September 17, 1999. 3. Respondent violated Rule 1.3 when respondent failed to act with reasonable diligence and promptness when he failed to make any effort to ascertain the date of Terrelle Hartley’s hearing from the date respondent entered his appearance, July 2 or 3, 1999, until the date of Terrelle’s second hearing, September 17,1999. Rule 1.4 Communication 4.

Respondent violated Rule 1.4(a) when respondent failed to keep Terrelle or Joyce Ann Hartley informed of the status of Terrelle’s case from the date respondent entered his appearance, July 2 or 3, 1999, until the date of Terrelle’s second hearing, September 17,1999. 5. Respondent violated Rule 1.4(b) when respondent failed to explain Terrelle’s matter to the extent reasonably necessary to permit Terrelle and Joyce Ann Hartley to make informed decisions regarding Terrelle’s case and by neglecting to conduct any substantive discussions with Ter-relle Hartley or Joyce Ann Hartley at anytime from the date respondent entered his appearance, July 2 or 3, 1999, until the date of Terrelle’s second hearing, September 17, 1999. ³⁸⁶ 6. Respondent violated Rule 1.4(a) when he failed to respond to Joyce Ann Hartley’s repeated attempts to contact him. Rule 8.1(b) Bar Admission and Disciplinary Matters 7.

In failing to respond to the inquiries of Bar Counsel dated October 20,1999; November 10, 1999; and December 3, 1999, respondent knowingly failed to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b). Rule 8.4 Misconduct 8. Respondent engaged in conduct that was prejudicial to the administration of justice in violation of Rule 8.4 by 1) failing to be present at the August 18 and September 17, 1999 hearings for Terrelle Hartley; and 2) by failing to respond to Master Richard J. Gilbert’s request for information regarding the respondent’s failure to appear at Terrelle Hartley’s August 18,1999 hearing. Matter of the Representation of Michael Windsor Rule 1.4 Communication 9.

Respondent violated Rule 1.4(a) when respondent 1) failed to inform Michael Windsor or Mary Windsor that he would not appear at Michael’s hearing on August 16, 1999; 2) failed to inform them that the hearing was scheduled for August 16, 1999; 3) failed to respond to Mary Windsor’s letter of October 1,1999. 10. Respondent violated Rule 1.4(b) when respondent failed to meet with Michael Windsor, as he represented he would, prior to the August 16, 1999 parole revocation hearing and thus failed to explain Michael’s circumstances with him to the extent reasonably necessary for Michael to make informed decisions regarding his parole revocation matter and hearing. 11. Respondent violated Rule 1.4(b) when respondent failed to counsel Michael regarding respondent’s opinion that Michael would be released following the revocation hearing. ³⁸⁷ Rule 1.3 Diligence 12. Respondent violated Rule 1.3 when respondent failed to 1) meet with his client; 2) to appear at his client’s August 16,1999 parole revocation hearing.

Rule 8.1(b) Bar Admission and Disciplinary Matters 13. In failing to respond to the inquiries of Bar Counsel dated December 14, 1999; January 12, 2000; and January 24, 2000, respondent knowingly failed to respond to a lawful demand for information from a disciplinary authority in violation of Rule 8.1(b). Rule 8.4 Misconduct 14. Respondent engaged in conduct that was prejudicial to the administration of justice in violation of Rule 8.4 by failing to appear at Michael Windsor’s parole revocation hearing.

Respondent’s Motion to Dismiss At the close of the evidentiary hearing, respondent argued that the charges against him should be dismissed for the reason that he had requested a postponement of the proceedings before the Inquiry Panel to obtain substitute counsel, but was denied. Bar Counsel argued that the Circuit Court did not have the authority to grant the relief requested. No testimony was taken on the motion. 2 This court has concluded that it does not have jurisdiction to entertain respondent’s motion for two reasons. First, Rule 16-710 governing hearings specifically provides at section ‘b’ that hearings of charges shall not be challenged ‘by reason of any procedural defects alleged to have occurred prior to the filing of charges.’ Although respondent has couched his argument as one of Constitutional dimension, it is more appropriately considered, if considered at all, as a pre-charge procedural defect not cognizable in this forum.

Second, the Court of Appeals’ charge to this court under Rule 16-709 pertains specifically to the ‘charges contained in the pleadings attached hereto’ and no motion to ³⁸⁸ dismiss was filed by the respondent or attached to the Court of Appeals’ order. For these reasons, the court has given no consideration to the respondent’s motion to dismiss.” Both parties filed exceptions to the Findings of Fact and Conclusions of Law set forth by the hearing judge. I. This Court has original and complete jurisdiction over attorney disciplinary proceedings. See Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 73 , 753 A.2d 17, 26 (2000).

Factual findings of the hearing judge will not be disturbed if they are based on clear and convincing evidence. Attorney Grievance Comm’n v. Jaseb, 364 Md. 464, 475 , 773 A.2d 516, 522 (2001); Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000). The hearing judge may “pick and choose which evidence to rely upon.” Fezell, 361 Md. at 253 , 760 A.2d at 1118 . We make an independent review of the record to determine whether the findings of the hearing judge are based on clear and convincing evidence.

We shall first address respondent’s exceptions. Respondent excepts to the hearing judge’s Findings of Fact and Conclusions of Law in both the Hartley matter and the Windsor matter. In the Hartley matter, he excepts to the following findings of fact: “that Ms. Hartley was prepared to pay respondent on August 18, 1999; that when Ms. Hartley called respondent, he told her it was too soon to discuss Terrelle’s case; that Ms. Hartley attempted to call respondent repeatedly and was unable to reach him; that respondent never communicated to Ms. Hartley that he would withdraw his representation of Terrelle and she never told him she wanted him to ³⁸⁹ withdraw his appearance; that respondent failed to return Ms. Hartley’s telephone calls after the August 18, 1999 hearing; and that respondent failed to substantively communicate with Ms. Hartley regarding Terrelle’s case from July 2, 1999 to September 17,1999.” In the Windsor matter, he excepts to the following findings of fact: “that respondent was retained to meet with Michael at the correctional facility and to represent him at the revocation hearing; that Michael learned of his hearing date from the correctional authorities; that respondent did not communicate the August 16, 1999 date to Michael and he did not communicate to Michael he had arranged the hearing until after the complaint was filed; that respondent did not inform Michael that he would not be present at the hearing; and that respondent did not communicate to Michael his opinion that Michael would be released after the hearing.” Respondent argues the hearing judge should have accepted his version of the events and rejected the testimony of Ms. Hartley and the Windsors. He maintains that Ms. Hartley “could not distinctly remember relevant facts, nor could she precisely narrate the details thereof.” In sum, his position is that Ms. Hartley was not credible.

In the Windsor matter, respondent’s argument is essentially the same — that the hearing judge should have believed his version of the events and not that of the Windsors. Judge Allison held an evidentiary hearing on April 9, 2001, in the Circuit Court for Baltimore City. Glenn Grossman represented Bar Counsel and respondent appeared pro se. Master Richard Gilbert, Mary Windsor, Michael Windsor, Joyce Hartley and respondent testified at the hearing.

As is often the case, the primary issue was credibility. It is clear from the findings and conclusions of Judge Allison that she accepted the testimony presented by Bar Counsel and rejected respondent’s testimony. Based upon an independent review of the record, we must determine whether the findings of the hearing judge are ³⁹⁰ based on clear and convincing evidence. Jaseb, 364 Md. at 475 , 773 A.2d at 522 .

Judge Allison heard the witnesses testify and chose to believe the testimony of witnesses other than respondent. The hearing judge is in the best position to evaluate the credibility of the witnesses and to decide which one to believe and, as we have said, to pick and choose which evidence to rely upon. The judge was free to disregard the testimony of respondent if the judge believed the evidence was not credible. See Attorney Grievance Comm’n v. Kerpelman, 288 Md. 341, 363 , 420 A.2d 940, 950 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981).

The witnesses’ testimony relied upon by the hearing judge was not so contradictory or inherently incredible to require a conclusion, as respondent argues, that they were unworthy of belief. We find that clear and convincing evidence exists to support Judge Allison’s findings. Respondent’s exceptions are without merit and accordingly, are overruled. We turn now to Bar Counsel’s exceptions.

Bar Counsel excepts to Judge Allison’s failure to find that respondent violated MRPC 1.5 in connection with his representation of Michael Windsor. Bar Counsel did charge respondent with a violation of MRPC 1.5 in the Windsor matter, and argued that respondent’s conduct constituted a violation of the Rule. The hearing judge made no finding in her report with respect to that charge. The sole argument Bar Counsel presents before this Court is that because respondent substantively failed to represent his client, and in light of the violations found by Judge Allison to have occurred, respondent’s fee was more than unreasonable; it was unconscionable.

Respondent argues that in charging a total fee of $1000.00, he charged a fair fee and that he “succeeded heroically” for Mr. Windsor. MRPC 1.5 provides that a lawyers fee must be reasonable. 8 The Rule provides, in pertinent part, as follows: ³⁹¹ “(a) A lawyer’s fee shall be reasonable. The factors to be considered as guides in determining the reasonableness of a fee include the following: (1) The time and labor required, the novelty and difficulty of the questions involved, and the skill requisite