Attorney Grievance Commission v. Phillips

Barbera, C.J. On October 13, 2015, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, Dalton F. Phillips. The Petition alleged violations of Maryland Lawyers’ Rules of Professional Conduct (the “Rules”) 1 3.1 (Meritorious Claims and Contentions); 5.3 (Responsibilities Regarding Nonlawyer Assistants); 5.4 (Professional Independence of a Lawyer); 5.5 (Unauthorized Practice of Law); 7.5 (Firm Names and Letterheads); 8.1 (Bar Admission and Disciplinary Matters); and 8.4 (Misconduct). Respondent’s professional misconduct stems from his ratification of the unauthorized practice of law by a non-attorney, followed by a series of material falsehoods made to Bar Counsel, refusal to provide information requested by Bar Counsel, and other obstruction during the investigation. ⁶⁶⁰ Pursuant to Maryland Rules 16-752(a) and 16-757, this Court transmitted the case to the Circuit Court for Prince George’s County and designated the Honorable Sean D. Wallace to conduct an evidentiary hearing and make findings of fact and conclusions of law. The hearing was held on April 27, 2016.

Respondent testified and presented evidence on his behalf. On May 19, 2016, the hearing judge issued written findings of fact and conclusions of law, concluding that Respondent violated Rule 3.1, 5.3(c), 5.4(d), 5.5(a), 7.5(d), 8.1(a) and (b), and 8.4(a), (c), and (d). No exceptions were filed. Respondent made no written recommendation regarding sanction; Petitioner recommended disbarment.

On October 13, 2016, we heard oral argument, at which only Petitioner appeared. On October 14, 2016, we issued a per curiam order disbarring Respondent. Attorney Grievance Comm’n v. Phillips, 450 Md. 246 , 147 A.3d 858 (2016). We explain in this opinion the reasons for that action.

On November 28, 2016, Respondent filed a paper titled “Respondent’s Opposition to the Per Curiam Order filed by the Court of Appeals.” We have treated the paper as a motion for reconsideration of the Order of Disbarment and, upon review of the motion, we hereby deny it. I We summarize here the record and the hearing judge s findings of fact and conclusions of law, supported by clear and convincing evidence. A. Initial Misconduct Respondent Dalton Phillips was admitted to the Maryland Bar in May 1981. He practiced law for over 35 years.

His son, Solon Phillips, graduated from law school in 2008 and in 2011 sought admission to the Maryland Bar. He has not been admitted to the Bar in Maryland or any other jurisdiction. In August 2009, Solon Phillips caused Articles of Organization to be filed with the Maryland Department of Assessments and Taxation establishing a law firm titled Phillips, Phillips ⁶⁶¹ and Dow LLC, to include Respondent, Solon Phillips, and a friend of Solon’s, Anthony Dow. It is unclear from the record whether Mr. Dow, evidently a practicing lawyer in Georgia, knew that his name was listed as a member of the firm.

Solon Phillips discussed the formation of the firm with Respondent. Solon Phillips created a law firm insignia; hired an answering service for the firm; reserved a domain name; and created and ordered letterhead that included the firm name, Solon Phillips’s home address, the phone number associated with the answering service, and the firm website. He also ordered business cards for himself using the firm insignia and the suffix “Esq.”. Respondent agreed to be a member of the firm and reviewed the firm logo prepared by Solon Phillips.

At some point, Solon Phillips met Crystal Meehan through a Facebook support group for individuals experiencing marital discord and became Facebook friends with her. Crystal Mee-han is a resident of Indiana. Solon Phillips and Crystal Mee-han corresponded in May 2014 regarding unwanted communications that Crystal Meehan had been receiving from her ex-husband’s current wife, Abigail Meehan. Solon Phillips prepared for Crystal Meehan a cease and desist letter ordering Abigail Meehan to discontinue all communications with Crystal Meehan, alleging that Abigail Meehan’s communications constituted harassment, and threatening legal action.

He corresponded over e-mail with Crystal Meehan, provided her with a draft of the letter signed “Solon Phillips JD/MBA”, and received her approval of the letter. He then printed the letter on Phillips, Phillips and Dow, LLC letterhead. The content of the final letter was altered in only one regard—Solon Phillips signed Respondent’s name to the letter, not his own. Abigail Meehan received the letter and began attempting to contact the firm.

On May 19 and 20, 2014, Abigail Meehan called the number listed in the letter. Someone answered the phone and advised her that, although the attorney was unavailable, she should comply with the letter. On May 20, Solon Phillips e-mailed Crystal Meehan informing her that Abigail ⁶⁶² Meehan had called the firm’s number and asked why a Maryland firm would send a cease and desist letter to her in Indiana. The e-mail exchange between the two included Solon Phillips advising Crystal Meehan that, “[i]f [Abigail Meehan] continues you can go to the police and press charges in IN,” specifically, a charge of harassment.

The hearing judge found: “Meanwhile, Abigail Meehan, growing increasingly suspicious of the firm, conducted online searches and eventually obtained the Respondent’s phone number.” On May 28, Abigail Meehan called and spoke with Respondent for a few minutes regarding the letter. Respondent told her that he knew nothing about the letter and stated that Phillips, Phillips and Dow, LLC was his son’s law firm. Following the conversation, Abigail Meehan e-mailed Respondent an image of the letter and its envelope, and requested an e-mail confirming that Respondent did not represent Crystal Meehan. On May 29, 2014, Respondent e-mailed Abigail Meehan the following: Dear Ms, Meehan: Greetings!

I am responding to your email regarding a Cease and Desist letter you received from the law firm of Phillips, Phillips and Dow, LLC (the Law Firm). As I had advised you during our brief telephone conversation on May 28, 2014, I was unaware of the Cease and Desist letter you received from the Law Firm. I have been able to confirm, however, that the Law Firm does in fact represent Ms. Crystal Meehan. A junior attorney for the firm sent out the letter you received without advising me of the Law Firm’s representation of Ms. Meehan or discussing the letter with me.

This is contrary to our practice, which requires my review of every correspondence written on the Law Firm’s letterhead and under my name. Even though the letter was issued without my knowledge, the fact remains that Ms. Crystal Meehan is a client of the Law Firm. If Crystal Meehan is so disturbed by your alleged communications that she hired an attorney to dis ⁶⁶³ courage them, in the interest of peace and harmony, I believe that you should seriously consider not contacting her. If you are a person of peace, as I believe you are, you would demonstrate good judgment and wisdom by simply avoiding attempts at correspondence or communication with Crystal Meehan; no good ever evolves from unwelcomed communications.

Understandably, you were upset by the contents of the letter. I suggest that you ruminate on the matter for a few days before doing anything. Sometimes, the most powerful action is no action at all. Sincerely, Dalton P. Phillips, Esquire.

On June 17, Abigail Meehan replied in an e-mail to Respondent’s May 29 e-mail. She wrote: “Since your firm is representing Ms. Crystal Meehan, I will need you[r] address so that I can send you documents.” The e-mail was sent to Respondent and copied Solon Phillips. A few minutes later, Solon Phillips replied to Abigail Meehan’s e-mail, copying Respondent and stating: Our firm is not representing Ms. Crystal Meehan. Furthermore, your attempts to continue to contact members of our firm is inappropriate and borders harassment.

This e-mail is to demand all communications with our firm to cease immediately. Thank you for understanding. B. The Complaint and Bar Counsel’s Investigation On or about June 8, 2014, Abigail Meehan filed a complaint with the Attorney Grievance Commission regarding Respondent’s conduct and enclosed the cease and desist letter and Respondent’s May 29 e-mail. She stated the following: This attorney sent me a cease and desist letter claiming to represent my husband’s ex-wife.

When I called him, he told me he had no knowledge of this then later he emailed me telling me someone sent it from his firm and she is repre ⁶⁶⁴ sented. How is he sending me legal letters if he isn’t licensed to practice in Indiana! By letter dated June 19, 2014, Bar Counsel forwarded a copy of the complaint to Respondent and requested a response. On June 23, 2014, Respondent replied by letter stating: After seeing the Firm’s name and symbol on the envelope in which the letter was mailed, I wrote Ms. Abigail Meehan the polite email that she has attached to her complaint....

After sending the email, I had an opportunity to review the letter that Ms. Abigail Meehan alleged I had sent to her husband’s ex-wife and also speak to a member of our law firm.... I have learned also that our Firm does not represent Ms. Crystal Meehan and no one in the Firm seems to have heard of her prior to this incident.... After I had sent that single email to Ms. Abigail Meehan, for example, I learned that she has contacted our Firm about the matter on several occasions, despite having been told that the firm does not represent Ms. Crystal Meehan. After she persisted in contacting the Firm, she was advised that legal action would be taken against her if she continued her unwelcomed communications.

In persistently contacting our Firm, she evinces a remarkably consistent modus operandi. Bar Counsel wrote Respondent on August 7, 2014. That letter states in pertinent part: In the email enclosed with the original complaint, dated May 29, 2014, you state “I have been able to confirm, however, that the Law Firm does in fact represent Ms. Crystal Meehan. A junior attorney for the firm sent out the letter you received without advising me of the Law Firm’s representation of Ms. Meehan or discussing the letter with me.” Provide the name of the junior attorney you reference in your email to Ms. Meehan.

In a letter dated August 12, 2014, Respondent replied to Bar Counsel’s letter. Respondent refused to supply the name of the person he had “assumed” was the person who wrote the letter, stating that he had been wrong in making that assump ⁶⁶⁵ tion: “I was mistaken when I stated that a junior attorney wrote the letter.... No one with whom I am associated knows Ms. Meehan. I am not going to compound my error by naming the person I wrongly suspected.” 2 Respondent added: You have also asked how many attorneys are employed with my law firm.

In preparation for my retirement from Federal service at the end of this year, I am in the process of establishing a law firm. It is in the developmental stage and no attorneys have been employed at this time. I regret that the Commission is asking me to spend time responding to something of which I know nothing and on a Complaint that on its face do [sic] not allege any type of violation. After receiving this communication, Bar Counsel informed Respondent by letter dated September 24, 2014, that the Attorney Grievance Commission had docketed a complaint against him and Bar Counsel would be investigating.

The letter requested Respondent’s availability for a meeting the week of October 20, 2014, and reminded Respondent that Rule 8.1 requires a lawyer to respond to lawful demands for information by a disciplinary authority. Respondent never replied to this letter with his availability, and Bar Counsel was forced to begin a lengthy and arduous process to get Respondent to talk to her. On October 8, 2014, Bar Counsel called Respondent to request his availability for a meeting, but Respondent refused to provide any dates before January 2015. Bar Counsel asked again following some conversation, and Respondent again refused.

When Bar Counsel stated that she would issue a subpoena if necessary and select a date, Respondent evidently hung up the phone. Bar Counsel followed the conversation with a letter to Respondent memorializing their phone call of earlier that same day and again requesting his availability to give a statement under oath. She stated that if she did not receive a response by October 10, she would choose a date unilaterally. ⁶⁶⁶ Respondent replied to Bar Counsel on October 8, 2014, by letter attached to an e-mail. In that October 8 letter, Respondent stated that he had never alleged to anyone that he represented Crystal Meehan, although he acknowledged in the same letter that he “had been mistaken” when he wrote in the May 29, 2014 e-mail he sent to Abigail Meehan “that the Firm represents Ms. Crystal Meehan.” Respondent further stated that he did not understand what Bar Counsel was investigating as misconduct on his part, accused Bar Counsel of failing to apprise him of the nature of the investigation in violation of the Commission’s guidelines, accused Bar Counsel of bias, and stated that he would not correspond with her again until she explained the nature of the investigation.

That same day, October 8, Bar Counsel e-mailed Respondent explaining that she was investigating the truthfulness of statements he had made to Abigail Meehan and Bar Counsel, his failure to respond to Bar Counsel’s requests for information, and whether he had assisted Solon Phillips in the unauthorized practice of law. Bar Counsel identified the Rules this conduct could violate and again requested dates for Respondent to provide a statement under oath. Although Bar Counsel waited a week, Respondent did not reply. On October 16, 2014, Bar Counsel e-mailed again requesting dates and offering to begin as early as 7:30 AM to avoid interfering with Respondent’s work schedule.

On October 17, Respondent replied with two e-mails and an attached document denying any wrongdoing and threatening suit against the Commission and Bar Counsel individually. Respondent did not provide any dates of availability. Bar Counsel e-mailed twice more, requesting dates of availability and offering to obtain Respondent’s statement in Bowie, Maryland, closer to his residence. Respondent did not reply to those e-mails.

On October 20, 2014, after obtaining permission from the Chair of the Attorney Grievance Commission, Bar Counsel issued a subpoena requiring Respondent to appear at a court reporter’s office in Bowie on November 20, 2014, at 10:00 AM to make a statement under oath. ⁶⁶⁷ On November 8, 2014, Respondent filed a motion to quash the subpoena arguing that the Commission had refused to advise him of the alleged misconduct that was the subject of the investigation. Bar Counsel opposed the motion. Although Respondent did not have a protective order and had been served with a subpoena, he did not appear for the statement under oath that was scheduled for the morning of November 20, 2014. That same afternoon, a judge of the Circuit Court for Prince George’s County denied the motion, stating: “The court does not find good cause or reason to quash the subpoena or grant a protective order.” Upon learning on the afternoon of November 20, 2014, that the motion to quash had been denied, Bar Counsel e-mailed Respondent later that same afternoon requesting dates and providing four potential dates in December.

Respondent again refused to provide dates before January and specifically alleged a conflict on December 17, but refused to give the nature of the conflict; instead he offered dates in January. Bar Counsel accepted January 7 and scheduled the statement under oath to be taken in Bowie. G. The Statement Under Oath Respondent appeared for the statement under oath. He replied to many questions that he “did not recall” or did not know, including questions asking when Solon Phillips graduated from law school and the nature of his employment.

Bar Counsel requested Solon Phillips’s phone number from Respondent. Respondent stated that he did not know the number and, unless Solon Phillips granted him permission to provide it, he would not give it to Bar Counsel. Bar Counsel then requested contact information for Anthony Dow (the third named individual on the firm’s letterhead), and Respondent stated that he did not have it and would not ask Solon Phillips for the information. Respondent stated that he did not know who had written and sent the cease and desist letter.

Respondent initially denied ever seeing the June 17 e-mail from Solon Phillips to Abigail Meehan that copied Respondent. After Bar ⁶⁶⁸ Counsel pointed out that he was copied, he altered his response to a statement that he did not “recollect seeing it.” Respondent also stated he did not know the corporate structure of the firm. The hearing judge made the following findings concerning Respondent’s statement under oath: The Court finds that the Respondent knowingly and intentionally testified falsely during his statement under oath. Specifically, the Court finds the Respondent testified falsely that he did not know the corporate structure of the law firm.

The undisputed evidence is that, as of May 29, 2014, the Respondent knew that the firm was a limited liability company and that he had supervisory authority over the “junior” associate(s). The Court finds that the Respondent testified falsely that he “did not recall” and did not “know” that the firm ever had any client and that he “was not involved.” The undisputed evidence is that, as of May 29, 2014, the Respondent knew as he stated in his email that the firm represented Crystal Meehan, that he had supervisory authority over the junior associate(s) and that there was an established protocol for the communications from the firm. The Court finds that the Respondent testified falsely that he did not receive or review the June 17, 2014 email from Solon Phillips to Abigail Meehan that was cc’d to him. The undisputed evidence is that, as of June 23, 2014, the Respondent knew that Solon Phillips had advised Abigail Meehan “that legal action would be taken against her if she continued her unwelcomed communication [with the firm].” Finally, the Court finds incredible and rejects Respondent’s testimony that he was unaware that his son was not admitted to practice law in Maryland.

(Internal citations omitted). D. The Hearing Judge’s Conclusions of Law Based upon the record and the above-summarized findings of fact, the hearing judge concluded, by clear and convincing evidence, that Respondent violated MLRPC 3.1, 5.3(c), 5.4(d), 5.5(a), 7.5(d), 8.1(a) and (b), and 8.4(a), (c), and (d). ⁶⁶⁹ E. Aggravating Factors The hearing judge found that four among the list of aggravating factors enumerated in the American Bar Association Standards for