Attorney Grievance Commission v. Patton

GREENE, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to Maryland Rule 16-751(a), 1 filed a “Petition For Disciplinary or Remedial Action” against Richard Valentine Patton, III (“Respondent” or “Patton”), and we referred the case to the Honorable David W. Young, Circuit Court for Baltimore City, to conduct a hearing. On June 12, 2012, Respondent was personally served with the Petition for Disciplinary or Remedial Action as well as interrogatories and a request for documents relating to his practice of law. When Patton failed to answer the Petition or provide documents twenty-three (23) days after service, 2 Petitioner filed and was granted a Motion for Order of Default. After Respondent filed his Answer untimely, on or about August 1, 2012, Petitioner filed and was granted a Motion to Vacate Order of Default, Motion to Compel, Motion to Shorten Time to Respond to Petitioner’s Motion to Compel, Motion for Mental Examination, and Motion to Shorten Time to Respond to Petitioner’s Motion for Mental Examination.

A scheduling conference was held on August 23, 2012, where Petitioner and Respondent agreed, on the record, that Respondent would provide Petitioner with discovery documents by Monday, August 27, 2012. When Respondent failed to provide documents as agreed, on August 29, 2012, Petitioner filed a Motion for ³⁶⁴ Sanctions and a Motion to Shorten Time to Respond to Petitioner’s Motion for Sanctions. The hearing court granted the Motion to Shorten Time to Respond to Petitioner’s Motion for Sanctions and directed Respondent to file a written response within five (5) days. Judge Young held an evidentiary hearing on September 20, 2012.

Petitioner’s Motion for Sanctions was also considered and Respondent admitted to failing to respond to Petitioner’s request for information and documents. After consideration of arguments from both Petitioner and Respondent and the record in the case, the hearing judge granted Petitioner’s Motion for Sanctions. The hearing judge then ordered that, during the disciplinary hearing, Respondent would not be permitted to offer any documents, evidence, or testimony that would contradict the charges in the Petition and that Respondent would only be allowed to testify as to mitigation. Because Respondent has admitted to failing to respond to Petitioner’s request for information and documents and did not file a timely answer to Petitioner’s complaint, the averments in the complaint are considered admitted. 3 Based upon, among other things, testimony from a number of witnesses, the hearing judge entered the following Findings of Fact and Conclusions of Law.

FINDINGS OF FACT “Richard Valentine Patton, III ... has been a member of the Maryland Bar since June 15, 2004.” At the time of the underlying incidents, “he maintained a solo law practice in Maryland.” Bar Counsel In 2010 and 2011 Respondent sublet office space at 11 E. Lexington Street in Baltimore from Harold Weisbaum. Near the end of 2011 Respondent was asked to move out of the ³⁶⁵ office and change his mailing address after he failed to pick up his mail, Respondent’s clients came looking for him and it became impossible to reach him by telephone. On December 12, 2011, Mr. Weisbaum contacted the Attorney Grievance Commission. On December 16, 2011, Respondent was directed by Bar Counsel to update his address with the Client Protection Fund and courts where he had entered appearances as well as the firm’s website. “Respondent did not change his mailing address with the Client Protection Fund or courts until March of 2012[,]” and, “[i]n August 2012, communications from Respondent’s bank regarding his IOLTA account were still being delivered to 11 E. Lexington Street.” Several times Respondent failed to appear in the Circuit Court for Baltimore County on behalf of clients Danielle N. Kraemer, Andrew R. Lloyd, Kevin R. Jones, and Harry J. Gillis.

Respondent was unavailable when repeated attempts were made by clients, opposing counsel, and judges to contact him after he had scheduled court appearances on behalf of clients. Clients would appear in court without counsel and were forced to resolve their cases without the benefit of Respondent’s representation — for which they had paid. In the case of Danielle N. Kraemer, where she was hospitalized and unable to appear in court on April 7, 2011 (and had timely notified Respondent), a bench warrant was issued for her arrest after Respondent failed to notify the court of Ms. Kraemer’s hospitalization. Ms. Kraemer filed, pro se, a motion to quash the warrant.

In April 2011, the Honorable Susan Souder, one of the judges before whom Respondent had failed to appear, referred him to the Baltimore County Lawyer Assistance Committee. After Judge Souder was advised that Respondent was non-cooperative, both she and the Honorable Thomas Bollinger, another judge before whom Respondent had failed to appear, filed a complaint with the Attorney Grievance Commission. On October 19, 2011, when Respondent failed to appear for a second time on behalf of Andrew R. Lloyd in a case before the Honorable John Grason Turnbull, II, Judge Turnbull sent ³⁶⁶ a letter to Respondent requiring him to explain his unexcused absences. When Judge Turnbull received no response from Respondent, Judge Turnbull filed a complaint with the Attorney Grievance Commission on November 1, 2011.

On November 28, 2011, Respondent again failed to appear before Judge Turnbull on behalf of his client Kevin R. Jones, notifying only the State’s Attorney’s office that he would not appear because of medical reasons. Respondent was also involved in various criminal offenses during the period he was neglecting his clients’ affairs. The hearing judge found that “[o]n April 18, 2011, Respondent was indicted for illegal possession of a firearm, discharging a firearm and possessing a controlled dangerous substance (oxycodone) in the Circuit Court for Baltimore County [ ].” The hearing judge further found that this case resulted in a stet conditioned on Respondent’s consent: (1) to the “forfeit[ure of] all interest in any property seized in the execution of the search warrant including any firearms and weapons;” (2) to the completion of a 28-day inpatient and 48 week after care program through the Right Turn Addictions Program; (3) to provide a status update to the State upon completion of the inpatient program and then every other month throughout the after care program, and (4) to remain law abiding. Respondent did not complete the Right Turn inpatient program, or any other inpatient program, he did not provide any status updates to the State and he did not remain law abiding.

In fact, on August 26, 2011, the morning after he agreed to the stet, Respondent was charged with driving negligently and impaired by the consumption of alcohol and drugs. He pled guilty to negligent driving and the State entered a nolle prosequi to the remaining charges. In the five months that followed this incident, Respondent was cited twice (on September 30, 2011 and January 13, 2012) for exceeding the speed limit. In addition, during the period of December 2011 to June 2012, Respondent was summoned for jury duty in Baltimore County and he failed to return the Jury Qualification Form ³⁶⁷ and appear for jury duty.

At a show cause hearing on June 27, 2012, Respondent appeared and was fined $500 to be paid within 30 days. Respondent did not pay the fine. Michael B. Hendrickson On June 25, 2010, Mr. Hendrickson signed a retainer agreement with Respondent for a flat fee of $1,000. Respondent was to represent Mr. Hendrickson in a criminal matter scheduled to be heard in the District Court of Maryland sitting in Anne Arundel County on September 17, 2010.

Both Respondent and Mr. Hendrickson appeared in court on September 17, but the case was postponed until December 18, 2010. According to their testimony, between September 17 and the morning of December 18, Mr. Hendrickson or his fiancee, Chrystal Shackelford, called Respondent approximately 30 times and sent him numerous text messages. Patton did not respond until he sent a text message to Ms. Shackelford the morning of December 18 stating that he was in the hospital and would not be appearing in court. Respondent suggested that Mr. Hendrickson ask the court for a postponement.

The case was rescheduled for March 18, 2011, and Respondent was advised of the new date. Again, Mr. Hendrickson and Ms. Shackelford, by telephone and text message, attempted to contact Respondent numerous times with no success. Respondent did not appear in court on March 18 and the court had not been offered any reason for his absence. In addition, Mr. Hendrickson learned that Respondent failed to enter his appearance in the case.

Additionally, Mr. Hendrickson never received a refund from Respondent. Mr. Hendrickson filed a complaint with the Attorney Grievance Commission against Respondent in May 2011. When Respondent received notification about the complaint, he called Mr. Hendrickson and told him that “he should not have filed the complaint, other clients who filed complaints against Respondent did not succeed, and that Mr. Hendrickson should have asked if he wanted a refund.” Mr. Hendrickson estimated that his telephone conversations with Respondent amounted to about 4-5 hours of conversation over a period of 20-25 ³⁶⁸ calls. “Respondent did not offer Mr. Hendrickson, Petitioner, or [the hearing] [c]ourt any additional evidence detailing the work performed and time spent on Mr. Hendrickson’s case.” Robert A. Tryson Robert Tryson’s fiancee asked Respondent to represent Tryson in a drug possession and conspiracy case in Washington County in November 2010. Mr. Tryson’s fiancee paid Respondent $5,000 by charging it to her credit card.

Respondent and Mr. Tryson met for the first time on November 4, 2010, at which time Mr. Tryson signed a retainer agreement specifying that Respondent would charge him a flat fee of $5,000. The hearing judge determined that representation for this fee would “include arranging bail, negotiating a plea and/or jurisdiction [sic] ... through the Preliminary Hearing in the District Court[]” using Respondent’s “best efforts.” Although Respondent did not explain to Mr. Tryson the purpose of the attorney trust account or that funds in Respondent’s operating account were subject to Respondent’s creditors, the retainer specified that Mr. Tryson authorized Respondent to place the fee in Respondent’s operating account. The hearing judge noted that Mr. Tryson “was re-arrested [on November 30, 2010] under a sealed indictment in Baltimore County for an incident related to the Washington County arrest.” After the arrest Respondent and Mr. Tryson’s fiancee exchanged a number of text messages and, on the afternoon of November 30, 2010, Mr. Tryson called Respondent from the detention center and was told that there “was nothing that could be done until Mr. Tryson appeared before the Commissioner and [Respondent] told Mr. Tryson to call him when he was released.” When Mr. Tryson was released on bond the morning of December 1, 2010, he immediately sent Respondent a text message and Respondent replied that he would contact him later that day. He did not contact Mr. Tryson and did not respond to Mr. Tryson’s multiple attempts to reach him by text message or telephone over the next several days.

Pinal ³⁶⁹ ly, on December 3, 2010, Mr. Tryson retained other counsel and informed Respondent by voicemail that same day. “Respondent did not respond to the December 3rd voicemail or otherwise acknowledge that the representation had been terminated.” On December 7, 2010, Mr. Tryson’s new counsel waived the scheduled preliminary hearing in Washington County. Even though Respondent had been advised that Mr. Tryson had new counsel, Respondent sent Mr. Tryson several text messages that same day [December 7] stating “that he was ‘still working’ on the preliminary hearing.” To make clear to Respondent that he had new counsel, Mr. Tryson sent Respondent an e-mail on December 10, 2010, asking for a billing statement and requesting reimbursement of the remainder of the $5,000 retainer. On December 20, 2010, Respondent notified Mr. Tryson via text message that “he had fulfilled the fee agreement and no refund would be provided.” Mr. Tryson sent Respondent an e-mail on December 21, 2010, outlining Respondent’s representation. The hearing judge summarized Mr. Tryson’s e-mail to Respondent as follows: Respondent helped to arrange bail and have Mr. Tryson released following the Washington County arrest; Respondent had no contact with the State’s Attorney on the Washington County matter until after Thanksgiving; Respondent provided little assistance in arranging for Mr. Tryson’s release following the Baltimore County arrest; Respondent did not communicate with Mr. Tryson following the Baltimore County arrest; Respondent did not withdraw his representation immediately following the termination of the attorney-client relationship on December 3, 2010; and Respondent failed to communicate with Mr. Tryson following the termination of the representation.

Respondent did not return any portion of Mr. Tryson’s $5,000 retainer fee. MITIGATION As to mitigation, the hearing judge found that Respondent admitted his dependency on “narcotics and tranquilizers.” In ³⁷⁰ spite of this admission, Respondent has not committed to a treatment program. Although he did meet with James Quinn, Director of the Lawyer Assistance Program for the Maryland State Bar Association, he did not actively participate in the program’s structured events. The hearing judge concluded that, Respondent did not seek referrals from the program, did not regularly participate in the weekly group meetings, attended only three or four over a period of months, nor did he enroll in the urine screening program, and eventually, stopped communicating at all with the program.

In July 2011, [he] indicated a desire to get back on track and start participating in the program. Respondent, however, only attended one Alcoholics Anonymous (AA) meeting. Also the hearing judge found that in July 2011 Respondent enrolled in Father Martin’s Ashley inpatient program but “was discharged early, without completing the program for a pattern of rebelliousness or unwillingness to comply with some of the program’s rules.” Respondent did not complete the Right Turn 28-day inpatient program he enrolled in as part of his stet agreement with the State in August 2011. Specifically, “[h]e completed ten (10) days, left, re-enrolled for three (3) days, and then left again.” Dr. Christiane Tellefsen was qualified as an expert in the field of forensic psychiatry and testified before the hearing judge that she had met with Respondent and reviewed his medical and treatment records, including those from his then — treating physician, Dr. Richard Bombeck.

Dr. Tellefsen concluded that even though Respondent had testified under oath that he had been sober since January 2012, records from Dr. Bombeck indicated that was not the case and that he was still using on a daily basis as recently as July 2012. According to the record, “Dr. Tellefsen considered the fact that Respondent has made several failed efforts at treatment programs, that he has continued to use despite being in treatment and that he has a history of oppositional behavior ³⁷¹ and rebelliousness to treatment plans and support groups ... that he does not believe in taking medication to assist in his recoveryt ]” and concluded that Respondent’s “prognosis was guarded to poor.” The hearing court accepted Dr. Tellefsen’s testimony that “Respondent’s diagnosis and prognosis interfere with his ability to practice law and that his sobriety is simply too tentative, and relapse too likely, to make him reliable enough to practice law.” CONCLUSIONS OF LAW The hearing judge found, by clear and convincing evidence, that Respondent had violated Rules 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16, 3.4, 8.1, and 8.4 of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and Md. Rule 16-604 as follows: Respondent violated Rule 1.1 (Competence) 4 when he failed to appear in court on behalf of clients Danielle N. Kraemer, Andrew R. Lloyd, Harry J. Gillis, Kevin R. Jones, and Michael B. Hendrickson. Respondent violated Rule 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer) 5 when he failed to appear in court: on April 7, 2011 for Ms. Kraemer; on April 7, 2011 and October 19, 2011 for Mr. Lloyd; on April 11, 2011 and May 9, 2011 for Mr. Gillis; on November 28, 2011 for Mr. Jones. He also ³⁷² violated Rule 1.2 by “failing] to maintain control of the Kraemer matter by allowing a bench warrant to be issued for [Ms. Kraemer][,]” and by “preventing] the timely resolution of the Jones matter” when “Respondent was not present in court to advise the State whether Mr. Jones wanted to accept or reject a plea.” Not only did Respondent fail to appear in court on behalf of these clients but also he failed to let them know that he would not be appearing.

In addition, Respondent regularly ignored clients by not returning their phone or text messages. Further, Respondent failed to file a motion to quash Ms. Kraemer’s bench warrant, instead leaving Ms. Kraemer “no other choice than to represent herself.” Respondent failed to pick up his mail from a leased office, failed to change his address with the Client Protection Fund, with any court where his appearance was entered and on his firm’s website. Respondent also failed to return calls from Judge Bollinger or respond to Judge Turnbull’s letter. Therefore, Respondent violated Rule 1.3 (Diligence). 6 When Respondent failed to keep his clients “apprised of the status of their cases ... by not making or returning phone calls to his clients ... [or] showing] up in court on their behalf without prior notice to his clients or the court[,]” and when “he failed to comply with the reasonable requests of Judges Turnbull and Bollinger to give an explanation for his failure to appear in court on behalf of his clients!,]” according to the hearing judge, Respondent violated Rule 1.4 (Communication). 7 ³⁷³ The hearing judge determined that “Respondent violated Rule 1.5 (Fees)[ 8 ] by charging Mr. Tryson an unreasonable flat fee of $5,000.00 for a minuscule amount of work.” Respondent’s representation of Mr. Tryson lasted less than 30 days. “While the fee may have been reasonable when agreed to on November 4, 2010, it became unreasonable at the termination of the representation [on December 3, 2010] and in consideration of the actual services performed.” When Respondent deposited Mr. Tryson’s entire fee into his operating account prior to earning the fee and did not advise Mr. Tryson of the purpose and function of Respondent’s trust account, the hearing judge concluded that Respondent violated MLRPC Rule 1.15 (Safekeeping Property) 9 and Md. Rule 16-604 (Trust account — Required deposits). 10 Respondent testi ³⁷⁴ fled that he did not intend to violate Rule 1.15, but the hearing judge concluded that whether Respondent “intended to violate the rule is of no consequence.” The hearing judge further determined that “[continuing to represent clients when [Respondent] knew, or reasonably should have known, that his dependency on narcotics and tranquilizers was interfering with his ability to adequately represent his elients[,]” violated Rule 1.16(a)(2). 11 From the end of 2010, throughout 2011 and into 2012, Respondent regularly did not show up in court when he was scheduled to appear on behalf of clients.

Respondent ignored communications from judges as well as clients seeking an explanation. According to the hearing judge, Respondent violated Rule 3.4(c) 12 “when he failed to promptly enter his appearance as counsel for Mr. Hendrickson as required by Maryland Rule 4-213(a), and when Respondent failed to appear in court without explanation on December 18, 2010 and March 18, 2011.” After considering all the evidence, the hearing judge determined that Respondent violated MLRPC 8.1 13 when he lied “in a deposition given under oath on August 30, 2012, that he had not used narcotics or tranquilizers since January 2012” when in fact he had admitted to Dr. Bombeck in contradiction that he had been using “on a daily basis as recently as June ³⁷⁵ 2012.” Further, Respondent failed to answer Bar Counsel’s request for information about his practice of law. The hearing judge found by clear and convincing evidence that the totality of Respondent’s behavior violated Rule 8.4. 14 Respondent’s violations of several other MLRPC were sufficient for the hearing judge to find violations of Rule 8.4(a). Furthermore, the hearing judge determined that Respondent’s illegal possession, use and dependency on narcotics and tranquilizers violated Rule 8.4(b).

The hearing judge stated “Respondent’s repeated disregard for the State of Maryland’s criminal laws against the possession and use of controlled dangerous substances prior to January 2012 and from January 2012 to on or about June or July 2012 reflects adversely on his honesty, trustworthiness, and general fitness as a lawyer.” Additionally, by “deceitfully concealing] from the State’s Attorney that he failed to comply with three of the four conditions of his stet agreement^]” and “misrepresenting] the length of time that he had been using controlled dangerous substances to Bar Counsel, under oath, during a deposition[ ]” Respondent violated Rule 8.4(c). Also, in his representation of Mr. Hendrickson, Respondent violated 8.4(c) by, among other things, failing to return fees that he had not earned, and breaching his retainer agreement with Mr. Hendrickson when he did not appear for two of the three court dates. Respondent, additionally, violated 8.4(c) by charging both Mr. Hendrickson and Mr. Tryson unreasonable fees for a small amount of work, also in violation of MLRPC 1.5, and improperly depositing client retainer fees in his operating account and using the fees for personal expenses before they were earned, rather than depositing the fees in his trust account, also in violation of MLRPC 1.15. ³⁷⁶ The hearing judge also determined that Respondent “violated [MLRPC] 8.4(d) on numerous occasions.” These violations included: faffing to report to jury duty four (4) times and pay the $500 fine imposed by the court for the violation; faffing to return phone calls from Judge Souder’s chambers and Judge Bollinger’s chambers when he failed to appear in court; faffing to respond to “Petitioner’s discovery requests and misrepresenting] the length of time he illegally used controlled dangerous substances under oath to Bar Counsel.” These actions constituted “engaging] in conduct that was prejudicial to the administration of justice.” Finally, the hearing judge stated that Respondent “has been in a downward spiral due to drug dependency from the end of 2010 until at least July 2012[,]” which has led to him: “failing] to appear in court on behalf of clients eight (8) times; failing] to appear for jury duty four (4) times; [being in] a car accident for which he was at fault; receiving] four (4) speeding tickets; ple[ading] guilty to negligent driving; [having] his driver’s license suspended and subsequently reinstated for work purposes only; and [having] criminal charges against him