Attorney Grievance Commission v. Montgomery

MURPHY, Chief Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed two petitions for disciplinary action against James Henry Montgomery, Jr., alleging violations of the disciplinary rules of the Code of Professional Responsibility. We referred both matters, pursuant to Maryland Rule BV9 b, to Judge Elsbeth Levy Bothe of the Circuit Court for Baltimore City to make findings of fact and conclusions of law. After conducting a hearing, Judge Bothe filed detailed findings and conclusions as follows: “Complaint of Annette Henderson “On or about November 9, 1985, Annette Henderson retained Respondent to handle her divorce case.

Respondent requested and received a retainer fee of $150. Respondent failed to take any action, communicate with the Complainant or return her numerous calls until early January, 1986. “In early January, 1986 Respondent called Mrs. Henderson at her work place and made arrangements to meet with her on or about January 21, 1986 to have her sign certain papers. Respondent failed to keep that appointment of January 21, 1986 with Mrs. Henderson. Respondent failed to advise Mrs. Henderson that he would be unable to keep the appointment of January 21, 1986. ¹⁵⁶ “Respondent failed to communicate further with Mrs. Henderson, despite her numerous phone calls, until April, 1986. “On or about April 6, 1986, Mrs. Henderson called Respondent at his home and requested that he return to her the retainer fee of $150.

Respondent agreed to return the retainer, but failed to do so. On or about May 7, 1986, Mrs. Henderson wrote to Respondent again requesting that Respondent return the retainer fee. Respondent received that letter but failed to respond. On or about June 20, 1986 Mrs. Henderson wrote to Respondent discharging him and requesting an accounting and reimbursement of the fee paid to him.

Respondent received that letter but failed to respond. “Respondent has failed to take any action on behalf of Mrs. Henderson with regard to her divorce, has failed to return the retainer fee of $150 and has failed to provide an accounting to Mrs. Henderson as she requested. “Complaint of Barbara Edwards “On March 21, 1984, Barbara Edwards consulted the Respondent regarding her discharge as an employee by Provident Hospital on March 19, 1984. As a result of that meeting, the Respondent undertook to represent Ms. Edwards with regard to a possible wrongful discharge action against Provident Hospital. No fee arrangements was made at that time since the Respondent indicated to Ms. Edwards that they would discuss the fee at a later date. “Over the next six to eight weeks Ms. Edwards met with the Respondent six to eight times regarding this matter. In addition to the wrongful discharge action, the Respondent agreed to obtain the necessary forms from Ms. Edwards’ union for filing a Workmen’s Compensation claim on her behalf. “Beginning in June 1984, Ms. Edwards was unable to contact the Respondent despite repeated efforts. ¹⁵⁷ “In July, 1984, Ms. Edwards learned of a new address and phone number for the Respondent through his former office.

Ms. Edwards was able to contact the Respondent who advised her that he had prepared the papers for her Workmen’s Compensation claim and would leave them with the receptionist for her to sign. The Respondent never left the papers with the receptionist for Ms. Edwards to sign. The Respondent advised Ms. Edwards that he was having problems and would get back to her in the near future. Respondent never contacted Ms. Edwards and never contacted the union representative to obtain the necessary papers for filing the Workmen’s Compensation claim. “Ms. Edwards continued to call the Respondent’s office and was eventually informed that the Respondent’s whereabouts were unknown.

Ms. Edwards sought the services of a new attorney in December 1984 who determined that no Workmen’s Compensation claim had been filed on her behalf. “Ms. Edwards made a complaint with the Attorney Grievance Commission in February 1985. “On July 18, 1985 the Respondent wrote to the Attorney Grievance Commission advising that he had sent a letter on Ms. Edwards’ behalf to Provident Hospital and enclosed a purported copy of that letter. Respondent never sent the original of that letter to Provident Hospital. “In his July 18, 1985 letter to the Attorney Grievance Commission, Respondent also advised that he had sent Ms. Edwards a letter on April 2, 1984 advising her of the fee arrangement and the necessary retainer and enclosed a purported copy of that letter. The respondent and Ms. Edwards never discussed the fee arrangement as indicated in the April 2, 1984 letter to Ms. Edwards. Respondent never sent the original of the April 2, 1984 letter to Ms. Edwards. “Ms. Edwards, through her new attorney, requested the return of her papers from the Respondent but the Respondent has failed to return any papers to her. ¹⁵⁸ “Complaint of Carlos and Dotcenia Phears “In the fall of 1983, Carlos Phears discussed with the Respondent a situation with Maryland National Bank regarding an alleged loan check that Mr. Phears had deposited in a Maryland National account which check was subsequently dishonored and for which Maryland National Bank was seeking restitution from Mr. Phears.

The Respondent undertook to represent Mr. Phears with regard to the situation with Maryland National. No fee arrangement was discussed at that time. “In March 1984, Maryland National Bank filed suit against Mr. Phears. The Respondent accepted service on Mr. Phears’ behalf and thereafter filed various pleadings in the matter. The trial was held on February 19, 1985.

The Respondent was unprepared at that time and sought a continuance which was denied. The Court entered a judgment in favor of Maryland National Bank against Mr. Phears on February 19, 1985. “Following the trial, Respondent advised Mr. and Mrs. Phears that he would file a Motion for a New Trial and, if that was unsuccessful, he would take an appeal. Respondent filed a Motion for a New Trial which was denied on April 17, 1985. “Mr. Phears has been unable to contact the Respondent regarding this matter since the trial on February 19, 1985 despite repeated efforts. “Respondent failed to note a timely appeal on behalf of Mrs. Phears following the denial of the Motion for a New Trial. “Mr. Phears’ wages were garnished by Maryland National Bank in or around June 1985. “The Respondent filed suit on September 24, 1984 on behalf of Mr. and Mrs. Phears in the Circuit Court for Baltimore City against the individuals and entities involved in the alleged fraudulent loan. An answer to that suit was filed on October 26, 1984.

Respondent has failed to take any further action on behalf of the Phears in that lawsuit. ¹⁵⁹ The Phears have been unable to contact the Respondent regarding the status of that suit. “In the late summer or early fall of 1983, the Respondent also undertook to represent the Phears regarding another matter wherein their car had been towed after an accident and subsequently disposed of by the towing company without notice to them. The Respondent advised the Phears that he had sent a letter to the towing company on their behalf and would initiate action against the towing company regarding the disposition of their car. The Respondent failed to take any action on behalf of the Phears’ as promised. The Phears have been unable to contact the Respondent to determine the status of that matter despite repeated efforts. “On June 18, 1985 the Phears wrote a letter to the Respondent advising him to withdraw from all of their matter and requesting the return of their papers and documents.

The Respondent has failed to withdraw from the suit in the Circuit Court for Baltimore City and has failed to return any papers or documents to the Phears. “CONCLUSIONS OF LAW “The Court concludes, upon the facts found herein, that the Respondent, by his acts and omissions, did violate the following Disciplinary Rules of the Code of Professional Responsibility then in effect: ‘DR 1-102 Misconduct (A) A lawyer shall not: (1) Violate a Disciplinary Rule. (4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law.

DR 2-110 Withdrawal from Employment (B) Mandatory Withdrawal. ¹⁶⁰ A lawyer representing a client before a tribunal, with its permission if required by its rules, shall withdraw from employment, and a lawyer representing a client in other matters shall withdraw from employment, if: (4) He is discharged by his client. DR 6-101 Failing to Act Competently (A) A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle. (2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him.

DR 7-101 Representing a Client Zealously (A) A lawyer shall not intentionally: (1) Fail to seek the lawful objectives of his client through reasonable available means permitted by law and the Disciplinary Rules, except as provided by DR 7-101(B). A lawyer does not violate this Disciplinary Rule, however, by acceding to reasonable requests of opposing counsel which did not prejudice the rights of his client, by being punctual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with courtesy and consideration all persons involved in the legal process. (2) Fail to carry out a contract of employment entered into with a client for professional services, but he may withdraw as permitted under DR 2-110, DR 5-102, and DR 5-105. (3) Prejudice or damage his client during the course of the professional relationship, except as required under DR 7-102(B).

DR 9-102 Preserving Identity of Funds and Property of a Client (B) A lawyer shall: (4) Promptly pay or deliver to the client as requested by a client the funds, securities or other properties in the ¹⁶¹ possession of the lawyer which the client is entitled to receive.’ ” Bar Counsel took no exceptions to Judge Bothe’s findings. He avers that disbarment is the appropriate sanction in the circumstances of this case, and he