Attorney Grievance Commission v. Pawlak

BARBERA, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel and pursuant to Mary ²⁹¹ land Rule 16 — 751(a), 1 filed a Petition for Disciplinary and Remedial Action (“Petition”) against Thomas F. Pawlak, Respondent. Bar Counsel charged Respondent with violating the following Maryland Rules of Professional Conduct (“MRPC”): 1.1 (Competence), 1.3 (Diligence), 8.1(a) and (b) (Disciplinary Matters), and 8.4(a) and (d) (Misconduct). 2 Pursuant to Maryland Rule 16-752(a), 3 we referred the petition to the Honorable Judith C. Ensor of the Circuit Court ²⁹² for Baltimore County, to conduct an evidentiary hearing and to make findings of fact and conclusions of law. Judge Ensor held a hearing on September 4, 2008, and on October 21, 2008, issued her findings of fact and recommended conclusions of law, pursuant to 16-757(c). 4 Judge Ensor found by clear and convincing evidence that Respondent had violated Rules 1.1, 1.3, 8.1(b), and 8.4(a) and (d). 5 I. FACTS Respondent was admitted as a member of the Bar of this Court in July 1970. The Petition stemmed from a complaint concerning Respondent’s representation of an estate.

The complaint was filed by a party with an interest in the estate. Judge Ensor made the following findings of fact concerning the charges in the Petition, beginning with general background facts that set her complaint-specific findings in context. Judge Ensor wrote: Introduction By way of background, Thelma Werner (“Ms. Werner”) moved home to 3909 Pinewood Avenue in Baltimore City in ²⁹³ order to care for her aging mother and stepfather, Daniel G. Imhoff (sometimes “Mr. Imhoff”). After her mother passed, Ms. Werner continued to care for and reside with Mr. Imhoff until his death on November 11, 1977.

Upon his death, Mr. Imhoff left to Ms. Werner a life estate in the 3909 Pinewood Avenue home. At the conclusion of the life estate, the home was to be sold, with the proceeds to be distributed pursuant to Mr. Imhoff s will. Ms. Charlotte W. Main (sometimes “Ms. Main”), an attorney, was appointed personal representative of Mr. Imhoff s Estate. Ms. Main died in 1994.

By letter dated March 31, 1997, Mr. Pawlak contacted Ms. Werner and informed her that he and another attorney by the name of Mr. Prem had succeeded Ms. Main as the attorneys for the Estate of Daniel G. Imhoff. At the time that this letter was sent, there was in existence an estate checking account with NationsBank, now Bank of America. On July 28, 1998, Mr. Pawlak wrote to Ms. Pauline Wolfe (“Ms. Wolfe”), another member of Ms. Werner’s family, and acknowledged that he had received the requested list of surviving heirs. Mr. Pawlak reiterated that he had “succeeded to the law practice of Charlotte W. Main, Co-Personal Representative” of Mr. Imhoff s Estate.

Respondent made clear that he intended “to petition the Court to be appointed as Successor Personal Representative for the purpose of completing the administration and distribution of Uncle Dan’s Estate through the sale of 3909 Pinewood Avenue when Thelma Werner’s life estate ends.” Mr. Pawlak further promised to move forward to obtain the heirs’ consents to his appointment “within the next ninety days.” The letter also referenced the checking account with Bank of America. On August 17, 1998, Mr. Pawlak obtained a Consent to Appointment of Personal Representative and Waiver of Bond from Irvin I. Imhoff (Mr. Imhoffs Brother), through his Power of Attorney, Ms. Wolfe. ²⁹⁴ Mr. Pawlak met with Ms. Wolfe, Ms. Longenecker (another relative), and their respective husbands at the 3909 Pinewood Avenue residence on August 17, 1998. He followed that meeting with a letter dated August 21, 1998. In that correspondence, Mr. Pawlak confirmed that the estate checking account had a balance of $3,000.

He also reiterated the importance of having a successor personal representative appointed “to protect the Imhoff heirs’ financial interests in the Estate and to provide the legal expertise necessary for the ultimate distribution to the heirs____” Again, Mr. Pawlak promised to forward consents to the Imhoff heirs within the September/October time frame. Mr. Pawlak did not prepare and/or file with the Court the pleadings necessary to have himself appointed successor trustee. Judge Ensor then turned to her findings concerning the charges in the Petition. She wrote: Findings of Fact The parties, for the most part, are in agreement as to the material facts and circumstances surrounding the charges lodged against Mr. Pawlak.

In August, 2006, twelve years after Ms. Main had passed and nine years after Mr. Pawlak had indicated his intention to petition the Court to appoint a successor trustee, Ms. Werner was 96 years old and suffering from dementia. Ms. Werner had previously given her power of attorney to Roy Sanders, the husband of her niece, Delores Sanders (sometimes “Ms. Sanders”). The Sanders ultimately determined that Ms. Werner could no longer safely reside in the Pinewood Avenue home. Mr. and Mrs. Sanders decided that it would be in Ms. Werner’s best interest to relinquish the life estate and move to an assisted living facility.

To this end, Ms. Sanders attempted to contact Mr. Pawlak in order to advise him of the change in circumstances and inquire as to the status of the estate issues. ²⁹⁵ According to Ms. Sanders, she obtained Mr. Pawlak’s telephone number from her aunt and placed calls to him on a number of occasions, all without success. Ms. Sanders testified that she reached a law office and left messages on the firm answering machine. She further testified that these calls were not returned. According to her testimony, having failed to reach Mr. Pawlak by phone, Ms. Sanders wrote to him at least twice.

Ms. Sanders’ first letter to Mr. Pawlak, dated August 20, 2006, was admitted into evidence[ ]. In this correspondence, Ms. Sanders, among other things, requested information as to whether Respondent still had possession of the records pertaining to the matter and inquired as to “how it is to be handled.” Ms. Sanders closed her letter by asking Mr. Pawlak to respond to her inquiries “as soon as possible.” Ms. Sanders pointed out in the letter that “[wjhenever Thelma vacates the house someone must take charge of it.” Mr. Pawlak denies ever having received the August 20, 2006 letter. During his testimony, he emphasized that, while the address was correct, Ms. Sanders failed to include the appropriate suite number. Ms. Sanders, however, testified that the letter was never returned to her.

Roy Sanders testified that, during the Spring of 2006, he sent Mr. Pawlak an up-to-date list of current heirs to the Imhol'f Estate, together with their contact information. According to Mr. Sanders, he and his wife met with Mr. Pawlak at the Pinewood Avenue address in June, 2006. Mr. Sanders testified that, during this meeting, Mr. Pawlak again promised that he would handle the matters on behalf of the estate and “get this through the courts.” At that same time, Mr. Pawlak discussed with the Sanders the need to sell the house as well as the need to obtain an appraisal of the personal property in the home belonging to the estate. In February 2007, Mr. and Ms. Sanders moved Ms. Werner to an assisted living facility in York, Pennsylvania.

After the move, for some period of time, the Sanders continued to maintain the Pinewood Avenue home. They ²⁹⁶ also left in the home several personal items belonging to the estate. In May or June of that same year, however, the Sanders relinquished the keys to 3909 Pinewood Avenue to Mr. Pawlak. Since that time, Mr. Pawlak has maintained the property, using his personal funds to do so.

Based on these findings, Judge Ensor drew the following conclusions of law. 6 Rule 1.1 Competence. After considering all of the facts and circumstances presented by way of live testimony and documentary evidence, this Court finds by clear and convincing evidence that the Respondent violated Rule 1.1 of the Maryland Rules of Professional [Cjonduct. Obviously, the significant delay, in and of itself, is deeply concerning. That said, perhaps even more disturbing is Mr. Pawlak’s own testimony that, after Ms. Main’s death and his letter of March, 1997, he saw no reason to petition the Court for a successor trustee.

At a minimum, Mr. Pawlak knew there existed an estate checking account with a balance of approximately $3,000. He knew this money was to be used to finance capital repairs on the Pinewood Avenue home. He knew that the account listed Ms. Main as the personal representative and that, absent action on his part, the funds could not be accessed. He knew that, absent activity on the account, the funds would be deemed abandoned and would eschew [sic] to the State.

Certainly, Mr. Pawlak’s inaction demonstrates a lack of thoroughness and preparedness. His failure to appreciate the ramifications of this inaction constitutes lack of the legal knowledge required to handle this representation. Rule 1.3 Diligence. This court finds, again by clear and convincing evidence, that Mr. Pawlak violated Rule 1.3 of the Maryland Rules of Professional Conduct.

In March, 1997, Mr. Pawlak under ²⁹⁷ took to represent the Imhoff Estate. Literally, more than one decade later, the appropriate paperwork has not been filed with the Court. The home is currently vacant and uninsured. Moreover, the beneficiaries have yet to receive their distributions.

In addition, Mr. Pawlak failed to respond to Ms. Sanders’ inquiries. There is no question that Mr. Pawlak has been less than diligent. Rule 8.1(a), (b) Bar Admission and Disciplinary Matters. Mr. Pawlak is charged with knowingly failing to respond to a lawful demand for information from a disciplinary authority.

He readily concedes that he received correspondence from Bar Counsel on October 28, 2006, December 7, 2006, January 10, 2007, and again on January 24, 2007. Mr. Pawlak admits that, in each of these letters, Bar Counsel sought a response to Ms. Sanders’ Complaint. Mr. Pawlak failed to respond to any of these letters. Indeed, he took no action whatsoever until a Bar Counsel Investigator contacted him in March 2007.

At the September 4th hearing, Mr. Pawlak indicated that he failed to respond to the various correspondence from Bar Counsel because he could not locate the Imhoff file. 2 It is noteworthy, however, that Mr. Pawlak never contacted Bar Counsel to inform her that the file was missing. It is noteworthy, however, that Mr. Pawlak never contacted Bar Counsel to inform her that the file was missing. Based in large part on Mr. Pawlak’s own testimony, this Court finds that the Respondent was embarrassed by the course of his representation and further ashamed to discover that he was the subject of a Complaint. He was aware of the Complaint, knew that Bar Counsel was repeatedly seeking information from him, and failed to respond.

Therefore, this Court finds by clear and convincing evidence that Mr. Pawlak violated Rule 8.1 of the Maryland Rules of Professional Responsibility. ²⁹⁸ Rule 8.4(a), (d) Misconduct. Mr. Pawlak’s lack of diligence and competence in handling the instant matter clearly amounts to a violation of the Maryland Lawyers’ Rules of Professional Conduct. As stated previously, Mr. Pawlak undertook to represent the Imhoff Estate more than a decade ago. To date, a successor trustee has not yet been appointed.

Obviously, this significant delay amounts to misconduct, but Mr. Pawlak further violated the Rules of Professional Conduct by not responding promptly to correspondence from Bar Counsel, despite admitting that he was aware that a Complaint had been filed against him and that Bar Counsel had repeatedly sought information from him. Additionally, Mr. Pawlak’s conduct has been prejudicial to the administration of justice given that the property located at 3909 Pinewood Avenue currently remains vacant and uninsured, and the beneficiaries of the Imhoff Estate have yet to receive their distributions. Furthermore, Mr. Pawlak allowed the Bank of America account, with approximately $3,000 to eschew [sic] to the State. This conduct has served to undermine the public’s trust in the legal system.

Therefore, this Court finds by clear and convincing evidence that Mr. Pawlak’s conduct with regard to the handling of the Imhoff Estate rises to the level of misconduct pursuant to Rule 8.4. Judge Ensor summarized her conclusions of law, as follows. Conclusions of Law This Court finds by clear and convincing evidence that Respondent violated Maryland Rule of Professional Conduct 1.1 by failing to petition the Court for a successor trustee despite the serious ramifications of not doing so, including allowing $3,000 in the estate checking account with Bank of America to eschew [sic] to the State. This Court also finds by clear and convincing evidence that Respondent violated Rule 1.3 by failing to file the appropriate paperwork to become successor trustee despite ²⁹⁹ undertaking to represent the Imhoff Estate more than a decade ago.

This Court further finds by clear and convincing evidence that Respondent violated Rule 8.1 by failing to respond timely to correspondence sent by Bar Counsel. This Court also finds by clear and convincing evidence that Respondent violated Rule 8.4 by failing to petition the Court for a successor trustee despite undertaking to represent the Imhoff Estate nearly a decade ago and by failing to respond timely to the various correspondence sent by Bar Counsel. This Court further finds by clear and convincing evidence that Defendant’s actions were prejudicial to the administration of justice given that the property located at 3909 Pinewood Avenue currently remains vacant and uninsured, the multiple beneficiaries of the Imhoff Estate have yet to receive their distributions, and Mr. Pawlak allowed the Bank of America account with approximately $3,000 to eschew [sic] to the State. Judge Ensor found the following facts in mitigation.

Mitigating Factors Mr. Pawlak was admitted to the Maryland Bar in June, 1970. This is the first time in his thirty-eight years of practice that he has been accused of any sort of misconduct. At the hearing, Mr. Pawlak appeared genuinely remorseful, indicating several times that he was ashamed and embarrassed about the manner in which he handled the case. He made clear that he was not trying to hide anything, and that he did not intend for this situation to occur.

Mr. Pawlak