Attorney Grievance Commission v. Olszewski

GREENE, J. On September 27, 2013, the Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16-751(a), filed a “Petition For Disciplinary Or Remedial Action” against Kevin Trent Olszewski (“Respondent” or “Olszewski”) arising out of two separate client complaints. Petitioner charged Respondent with violating various Maryland Lawyers’ Rules of Professional Conduct (“MLRPC” or “Rule”), specifically Rule 1.1 (Competence), 1 Rule 1.3 (Dili ²⁵³ gence), 2 Rule 1.4 (Communication), 3 Rule 1.5 (Fees), 4 Rule 1.7 (Conflict of Interest), 5 Rule 1.15 (Safekeeping Property), 6 1.16 ²⁵⁴ (Declining or Terminating Representation), 7 Rule 8.1 (Bar Admission and Disciplinary Matters), 8 and Rule 8.4(a) and (d) (Misconduct). 9 This Court referred the matter to the Honorable Robert Edward Cahill, Jr. of the Circuit Court for Baltimore County for a hearing and to render findings of fact and conclusions of law pursuant to Maryland Rule 16-757. Judge Cahill conduct ²⁵⁵ ed an evidentiary hearing on February 20, 2014, at which the parties submitted an agreed stipulation of facts and exhibits. Judge Cahill heard testimony from Respondent and three other witnesses: Shaneise T. Ware, Lizabel Acosta-DeJesus, and Margaret Hoffman.

Thereafter, Judge Cahill issued Findings of Fact and Conclusions of Law, in which he found, by clear and convincing evidence, that Respondent violated MLRPC 1.1, 1.3, 1.4, 1.5, 1.7, 1.15, 1.16, 8.1, 8.4(a) and (d). Findings of Fact and Conclusions of Law Respondent was admitted to the practice of law on December 10, 1982, and maintains a solo practice in Bel Air, Maryland, focusing on collections, construction law, general civil litigation, and wills and estate matters. The instant proceedings arose out of two separate client complaints: one filed by Mr. and Mrs. Ware, the other by the office of Ramon A. DeJesus, M.D., LLC. Ware Complaint Mrs. Ware retained Respondent to represent her and her husband, Mr. Ware, on September 24, 2009, following a single vehicle accident in which both Mr. and Mrs. Ware sustained injuries.

The accident occurred on September 21, 2009, at which time Mrs. Ware was driving and Mr. Ware was a front seat passenger. Due to the severity of his injuries, Mr. Ware was taken to the University of Maryland’s Shock Trauma Unit for treatment. He remained in the hospital at the time that Mrs. Ware retained Respondent to represent them, but Mr. Ware signed a separate retainer agreement with Respondent on November 10, 2009. On behalf of Mr. and Mrs. Ware, Respondent secured the payment of PIP benefits from Mrs. Ware’s insurer, the Maryland Automobile Insurance Fund.

In completing further investigation of the Wares’ potential claims, Respondent discovered that the vehicle involved in the accident, a 2000 Buick LeSabre, was a rebuilt salvage vehicle. That fact had not been disclosed to the Wares when they purchased the vehicle in July 2009 from BH Motors in Joppa, Maryland. Respondent ²⁵⁶ also learned that Mrs. Ware’s insurance policy provided the minimum statutory liability limits, which Mr. Ware’s medical bills far exceeded. On June 29, 2012, Mr. and Mrs. Ware filed a complaint with Petitioner, alleging that Respondent would not return their telephone calls or advise them about “the status of our case.” Petitioner sent letters to Respondent, dated July 13, 2012, August 8, 2012, and October 12, 2012, requesting a response to the Wares’ allegations.

Despite receipt of the letters, Respondent failed to respond. On September 21, 2012, Respondent filed in the Circuit Court for Harford County a civil action against Mrs. Ware on behalf of Mr. Ware. Then, on September 24, 2012, Respondent filed a separate action in the Circuit Court for Harford County on behalf of both Mr. and Mrs. Ware against BH Motors. On February 23, 2013, the Circuit Court consolidated the two civil cases pursuant to a joint motion filed by the respective defendants.

Ultimately, both cases were dismissed. Respondent admitted that his representation of Mr. Ware against Mrs. Ware created a conflict of interest. Although Respondent maintained that he discussed the conflict of interest with the Wares, the hearing judge found otherwise based on the credible testimony of Mrs. Ware, who testified that Respondent never discussed the question of a conflict with her. Respondent acknowledged that he should have instructed Mr. Ware to retain a different attorney, or referred the case to another attorney, in the lawsuit against Mrs. Ware.

In any event, the hearing judge found that Respondent “plainly knew, or should have known of this obvious conflict and ignored it.” In addition, the hearing judge found that, though Respondent adequately communicated with Mrs. Ware in the early stages of his representation, Respondent failed to respond to her telephone calls during the months leading up to the Wares’ filing of the attorney grievance complaint. Therefore, the hearing judge found that Respondent “failed to adequately or effectively communicate with Mrs. Ware about the status of ²⁵⁷ her claims, or about the propriety of representing Mr. Ware in his case against her.” With regard to the Ware complaint, Judge Cahill reached the following conclusions of law: 1. The Petition for Disciplinary of Remedial Action alleges that, with respect to Mr. and Mrs. Ware, [Respondent] violated Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.7 (Conflict of Interest), 1.16(a) (Declining/Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) and (d) (Misconduct) of the [MLRPC]. 2. Petitioner has proved that [Respondent] violated Rule 1.1 by clear and convincing evidence.

While [Respondent] secured PIP benefits for both Mr. and Mrs. Ware from [the Maryland Automobile Insurance Fund], and while he initiated a proper investigation into claims arising from the purchase of the 2000 Buick LeSabre and the accident, a minimal threshold of competent representation was breached when he agreed to represent one client against another and continued with that representation to the point of filing an action against Mrs. Ware on behalf of Mr. Ware. 3. Petitioner also proved by clear and convincing evidence that [Respondent] violated Rule 1.3 by failing to act with reasonable diligence and promptness in the representation of the Wares. He waited until the end of the limitations period to file the actions in court, and appears to have done so at least partially due to the filing of the Attorney Grievance Commission complaints. In Mr. Ware’s case against his wife, while the progress of discovery was complicated by the fact that Mr. Ware was incarcerated for important periods of time, and the fact that the Wares, at some point, obtained protective orders against one another, [Respondent] clearly violated the diligence standard in failing to timely furnish discovery, resulting in the need for [the trial court] to actively intervene in the matters. 4.

Petitioner has proved a violation of Rule 1.4. [Respondent] failed to keep Mrs. Ware reasonably informed about ²⁵⁸ the status of her matter and did not comply promptly with her reasonable requests for information when she repeatedly attempted to contact him by phone during the months prior to filing a grievance. Such failure to communicate violated subsections (a)(2) and (a)(3) of Rule 1.4. When he initially undertook the joint representation of the Wares, [Respondent] did not inform Mrs. Ware of a decision or circumstance with respect to which her informed consent, as defined in Rule 1.0(f), was required. He therefore violated Rule 1.4(a)(1).

By virtue of his failure to provide Mrs. Ware with any information regarding the filing of a lawsuit against her and his failure to explain to Mrs. Ware that a motion to dismiss had been filed and granted in the case in which she was a plaintiff, [Respondent] violated Rule 1.4(b). 5. Petitioner has established a violation of Rule 1.7. [Respondent]^ joint representation of Mr. and Mrs. Ware, even if it did not immediately present a conflict of interest in his mind, certainly became a conflict of interest for him when he filed suit on behalf of Mr. Ware against Mrs. Ware. As counsel for [BH Motors] noted in response to the motion for reconsideration filed by [Respondent] after the Wares’ joint action was dismissed with prejudice due to discovery failures, [Respondent] “represented Shaneise T. Ware in one case as Plaintiff, and sued her in another case as Defendant, which would appear to be the very definition of a conflict.” [Respondent]^ conflict involved the type of directly adverse representation to which a client cannot consent, inasmuch as it involved “the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.” Rule 1.7(b)(3). Even if the conflict could have been waived, [Respondent] never sought to obtain Mrs. Ware’s informed consent, in writing or otherwise, at any time before filing suit against her on behalf of Mr. Ware.

By engaging in an obvious conflict of interest, [Respondent] violated Rule 1.7. 6. Petitioner has proved a violation of Rule 1.16 by clear and convincing evidence. By failing to withdraw from the representation of both Mr. and Mrs. Ware once it was ²⁵⁹ apparent that [Respondent’s continued representation presented an obvious conflict, [Respondent] violated Rule 1.16(a)(1), which requires withdrawal when “the representation will result in a violation of the [MLRPC] or other law.” 7. [Respondent] knowingly failed to respond to three separate letters sent by [Petitioner] for the purpose of obtaining his written response to the Wares’ complaint. Such failure to respond violated Rule 8.1(b).

Attorney Grievance Commission v. Fezell, 361 Md. 234, 249 , 760 A.2d 1108, 1116 (2000) (“An attorney violates Rule 8.1(b) by failing to respond to letters from disciplinary authorities requesting information.”). He subsequently did cooperate with [Petitioner's investigator, fully and completely. 8. By violating the [MLRPC] as discussed herein, [Respondent] engaged in professional misconduct in violation of Rule 8.4(a). [Respondent] also engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). DeJesus Complaint Lizabel Acosta-DeJesus, the office manager for Roman A. DeJesus, M.D., LLC, signed a written Representation and Fee Agreement on December 2, 2008, engaging Respondent for the purpose of collection of delinquent accounts owed to Dr. Dejesus’s medical practice.

The Representation and Fee Agreement specified that Respondent would represent Dr. Dejesus’s medical practice on a contingent fee basis, at a rate of 33.3% of the amount collected. By letter dated November 19, 2008, attached to the Representation and Fee Agreement, Respondent stated that he would only accept claims greater than $3,000.00, because, in his experience, it would be cost prohibitive to take collection actions for accounts valued below $3,000.00, unless the client has a high volume of collection cases. Since 2008, Dr. Dejesus’s office referred only two collection cases to Respondent. Respondent resolved the first collection matter against a DeJesus patient, Brian Bragg, and forwarded ²⁶⁰ the monthly payments he received from the patient to Dr. Dejesus’s office.

On September 21, 2011, Dr. Dejesus’s office referred the account of Cherie L. Chase to Respondent for collection. At that time, the account had a delinquent balance of $9,075.00. Prior to referring Ms. Chase’s account to Respondent, Dr. Dejesus’s office had made attempts to obtain payment from Ms. Chase’s insurer. The insurer declined payment, however, because it required additional information from Ms. Chase, which she failed to provide.

Dr. Dejesus’s office informed Ms. Chase that the insurer would not provide payments unless it received the information from her, and that, alternatively, she could file an appeal with the insurer, prompting them to make payments to Dr. DeJesus. Respondent was unaware of the communications with the insurance company, and had been advised by Dr. Dejesus’s office that the insurer’s time frame for claim submission had already passed. Accordingly, Respondent was unaware that Ms. Chase’s account balance was subject to change by means of an insurance adjustment. Respondent sent correspondence to Ms. Chase, and on December 21, 2011, filed a collection action against her in the District Court of Maryland, sitting in Harford County.

After being served, Ms. Chase informed Respondent that she would contact the insurer. Shortly before the scheduled trial date, Dr. Dejesus’s office received notice that Ms. Chase had submitted the necessary information to allow the insurer to process her claim. Ms. Chase’s insurer paid Dr. Dejesus’s office $1,745.61, but adjusted the balance and did not cover the amount of $6,873.31. Dr. Dejesus’s office wrote off the adjusted amount as uncollectible.

As a result, the remaining principal balance on the Chase account was $456.08. On the trial date, March 30, 2012, with the approval of Dr. Dejesus’s office, Respondent and Ms. Chase reached a settlement agreement for substantially more than $456.08. At that time, the settlement agreement was placed on the record, but was not reduced to a consent judgment. Thereafter, on April 5, 2012, Respondent sent a “remittance report” to Dr. Dejesus’s office.

This report itemized the ²⁶¹ insurance payments and adjustments to the Chase account and stated that Respondent’s contingency fee for this matter was one-third of the insurance payment of $1,745.61. Respondent also charged a 15% fee on the adjusted amount for an additional fee of $1,031.00. Dr. Dejesus’s office disputed the $1,031.00 fee, because the $6,873.31 adjustment amount was not actually collected on the account. To cover the claimed 15% fee, despite knowledge that Dr. Dejesus’s office disputed the fee, Respondent withheld funds owed to Dr. DeJesus from the monthly payments he was receiving on the Bragg account.

Respondent did not explain to Dr. Dejesus’s office that funds collected on one account could be applied to pay Respondent’s fee related to a separate account. The amount Respondent withheld from the Bragg account, over a period of several months, totaled $1,279.69. On April 30, 2012, Respondent received a $500.00 payment from Ms. Chase. From that payment, he deducted his fee of $166.70 (33% of $500.00).

He also retained the remaining 67% of the payment ($333.30) that was payable to Dr. DeJesus. Thus, between the amounts withheld from the Bragg payments and the amount withheld from the Chase payment, Respondent retained for himself a total fee of $1,612.99 claimed on the Chase account. At the disciplinary hearing on February 20, 2014, Respondent testified that he recognized his error in taking a contingency fee on an amount not actually recovered for Dr. DeJesus and he expressed genuine remorse for withholding funds from the collections on the Bragg account. As of the hearing date, however, Respondent had not issued a refund to Dr. DeJesus, but indicated that he was pursuing collection of the remaining balance on the account from Ms. Chase and would forward the first $1,031.00 received to Dr. DeJesus.

The record indicates that Respondent did remit a payment of $1,031.00 to Dr. Dejesus’s office by check dated April 10, 2014. With regard to the DeJesus complaint, Judge Cahill concluded that Respondent violated MLRPC 1.5(a) and (b), 1.15(d) and (e), 8.1(b), and 8.4(a) and (d), as follows: ²⁶² 1. The Petition for Disciplinary or Remedial Action alleges that, with respect to Dr. DeJesus, [Respondent] violated [MLRPC 1.5(a) and (b), 1.15(d) and (e), 8.1(b), and 8.4(a) and (d) ]. 2. Petitioner has established by clear and convincing evidence that [Respondent] violated Rule 1.5(a) and (b). [Respondent] and Dr. Dejesus’s office entered into a written Representation and Fee Agreement under which Dr. Dejesus’s office retained [Respondent] to represent Dr. Dejesus’s practice on a contingent fee basis pursuant to Rule 1.5.

Pursuant to the agreement, [Respondent’s fees were to be payable at a contingency rate of 33.3% of the amount collected. In seeking to recover a fee, albeit a fee reduced to 15%, it was a fee imposed on uncollected funds, and as such, it was unreasonable. While [Respondent] did perform significant work on the Chase collection matter, including contacting the defendant before filing the action, drafting and filing a Complaint, propounding discovery, filing a motion for sanctions based on the defendant’s failure to respond to discovery, appearing in [c]ourt on the day of the trial, and negotiating a settlement between the defendant and Dr. Dejesus’s office, he was not entitled to unilaterally decide to collect the additional 15% fee based on the changed circumstance of an unanticipated insurance payment. The 15% fee charged was not unreasonable in relation to the effort put forth by [Respondent], but the imposition of that fee unilaterally, without the agreement of Dr. Dejesus’s office constitutes a violation of Rule 1.5. 3.

Rule 1.15(d) requires a lawyer to “deliver promptly to the client ... any funds that the client ... is entitled to receive.” [Respondent] violated the Rule by diverting funds belonging to Dr. DeJesus from payments on the Bragg account to satisfy the claim which he asserted against Dr. DeJesus for his work on the Chase collection matter. By failing to separate and hold in trust the $1,031.00, which he knew was disputed by Dr. Dejesus’s office, [Respondent] violated Rule 1.15(e). ²⁶³ 4. Generally, the [c]ourt does not find that [Respondent] failed to respond to Bar Counsel’s inquiries with respect to the DeJesus Complaint. He promptly responded to Bar Counsel’s letters of May 30 and June 12, 2012 and cooperated with Bar Counsel’s investigator by submitting to a full interview on December 13, 2012.

He did fail to respond to a letter of September 28, 2012, a technical violation of Rule 8.1(b). 5. By violating the [MLRPC] as discussed above, [Respondent] violated Rule 8.4(a). He also engaged in conduct prejudicial to the administration of justice by collecting [an] unreasonable fee and diverting the funds rightfully due Dr. DeJesus from the Brian Bragg case. Mitigation/Aggravation In addition, the hearing judge made the following findings with regard to mitigation and aggravation: During a five-month period in 2012, four bar complaints were filed against [Respondent] with the Attorney Grievance Commission.

In March 2012, he timely responded to Bar Counsel’s request for information and the grievance was dismissed. In May 2012, [Respondent] timely responded to Bar Counsel’s request for information in two separate matters, including the DeJesus matter. One of these grievances was dismissed and [Respondent] provided additional information with respect to the DeJesus matter upon Bar Counsel’s request. In July 2012, [Respondent] received the Wares’ grievance.

When [Respondent] received the Wares’ grievance, he testified credibly that he felt overwhelmed, dumbfounded, and “shell shocked.” As a result of feeling overwhelmed, [Respondent] became depressed and admits that he “stuck his head in the sand,” with the hope that the grievance would go away. [Respondent] admits that he made a mistake by not responding to Bar Counsel’s requests for information in the Ware matter and in not responding to the September 28, 2012 letter in the DeJesus matter. [Respondent] did, however, cooperate with Bar Counsel’s investigator and [Respondent] was interviewed on ²⁶⁴ December 18, 2012 regarding both the Ware and DeJesus matters. As [Respondent] was receiving these bar complaints in 2012, he testified, again credibly, that he was also having family issues [involving his son’s drug use and criminal possession charge].... [Respondent’s home was burglarized in the same time frame, and he sustained a loss of family heirlooms. [Respondent’s testimony concerning the cumulative effect of these complaints and these personal/emotional problems was credible and appeared sincere. As described above, during the course of [Respondent’s representation of Mr. and Mrs. Ware, the Wares’ domestic issues and Mr. Ware’s incarceration posed some challenges to [Respondent’s ability to communicate with Mr. and Mrs. Ware at the same time. Despite these communication challenges, [Respondent] met and conferred with Mr. and Mrs. Ware to a reasonable extent early in the representation.

As that representation proceeded, however, his failure to return Mrs. Ware’s phone calls became sufficiently problematic to cause her to file her complaint. The [c]ourt does conclude that [Respondent] has established an absence of dishonest or selfish motive with respect to the Ware complaint. His conduct appears to be a product of a sort of representational paralysis in the face of a difficult case rather than of dishonesty. [Respondent] acknowledges that he should have instructed Mr. Ware to find another attorney to represent him in the lawsuit against Mrs. Ware or, alternatively, referred the case to another attorney. He made a credible commitment in the context of the judicial hearing that, in the future, in the event that he encounters a potential conflict of interest in his practice, he will discuss the conflict with the client and with another attorney and, as necessary, refer the case to an outside attorney.

Therefore, he has established some element of remorse and interim rehabilitation by a preponderance of the evidence. Finally, with respect to the DeJesus matter, [Respondent] admits that he erred by taking a 15% contingency fee on the ²⁶⁵ amount of the uncollectible claim that was ultimately written off by Dr. Dejesus’s office and then collecting that fee from the Bragg payments, without seeking to first secure an agreement with respect to compensation for his work on the Chase collection case. His expression of remorse was genuine. While his commitment to repay Dr. Dejesus’s office the $1,031.00 which he diverted from the Bragg collection payments seemed sincere, the fact that he had not made that payment or any part of that payment as of the date of the judicial hearing precludes a reasoned determination that this can be considered a matter of mitigation, and frankly, might be considered a minor aggravating factor under the circumstances, although he was not “indifferent” to the need to make restitution, the term used in Maryland’s aggravation cases.

DISCUSSION In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievance Comm’n v. Jarosinski, 411 Md. 432, 448 , 983 A.2d 477, 487 (2009). “The Court gives deference to the hearing judge’s assessment of the credibility of the witnesses.” Attorney Grievance Comm’n v. Thomas, 409 Md. 121, 147 , 973 A.2d 185, 201 (2009) (citing Attorney Grievance Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 236 (2008)). Where no exceptions are filed to the hearing judge’s findings of fact, we “may treat the findings of fact as established for the purpose of determining appropriate sanctions[.]” Md. Rule 16-759(b)(2)(A); see also Attorney Grievance Comm’n v. Bell, 432 Md. 542, 558 , 69 A.3d 1040, 1049 (2013) (quoting Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334 , 68 A.3d 862, 868 (2013)) (“[W]e deem the hearing judge’s findings of fact ‘correct if (1) they are not clearly erroneous, or (2), at the Court’s option, if neither party filed exceptions to them.’ ”). We review the hearing judge’s conclusions of law de novo.

Md. Rule 16—759(b)(1). Based on our review of the record, and because neither Respondent nor Petitioner filed exceptions, we conclude that Judge Cahill’s ²⁶⁶ findings and conclusions are supported by clear and convincing evidence. Ware Complaint MLRPC 1.1 requires a lawyer to provide competent representation to his or her clients. As defined in the Rule, “[cjompetent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” MLRPC 1.1.

We agree with the hearing judge that, on the facts of this case, “a minimal threshold of competent representation was breached when