Attorney Grievance Commission v. Rees

BELL, C.J. The respondent, Natalie H. Rees, was charged by the petitioner, the Attorney Grievance Commission of Maryland, in a Petition For Disciplinary Action, filed by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 with violating a number of the Rules of Professional Conduct, as adopted by Maryland Rule 16-812, and Maryland Code (2004 RepLVol., ²⁵⁰ 2006 Cum.Supp.), § 10-306 of the Business and Occupations Article. Following a hearing, the Hon. Robert N. Dugan, of the Circuit Court for Baltimore County, to whom the Court referred the matter, see Rule 16-752(a), 2 to make findings of fact and draw conclusions of law, see Rule 16-757(e), 3 concluded that violation of only two of them, Rules 1.15(a) 4 and 8.1, 5 ²⁵¹ and of § 10-306, 6 had been proven. 7 Noting that the allegations “involve two disgruntled former clients,” who had retained the respondent to assist them, as partners, to adopt a child, the hearing court found that the respondent did not respond to Bar Counsel’s request for information in answer to those allegations in a timely manner. The request from Bar Counsel was sent to the respondent by regular mail on September 21, 2004 and delivered to her by certified mail on October 21, 2004.

Aware of the respondent’s personal problems, generally relating to the care of a bipolar child, the hearing court nonetheless was “satisfied by clear and convincing evidence that Respondent’s delay in responding to the allegations was not excusable,” and, thus, that the respondent violated Rule 8.1(b). With respect to the Rule 1.15 and § 10-306 violations, the hearing court found that they were supported by the respondent’s billing records. They established that four days after depositing in her escrow account the $ 4,000.00 retainer re ²⁵² ceived from her clients, the respondent withdrew $ 3,000.00. At that time, most of the fee remained unearned and, in fact, counting all of the work recorded as having been done on the case over a 19 day period, including the previous month, after the deposit, as of April 7, 2003, the hearing court found, the respondent had earned only $ 860.00 of the fee.

Also as of that date, the escrow balance was $ 1,307.39, considerably less than the $ 3,140.00 it was required to be, or would have been, had the withdrawal not occurred. The hearing court further found: “Even taking into account the potential for some unrecorded services rendered and the fact that at the time the Respondent was honestly mistaken that the appropriate billing rate was two hundred fifty ($250.00) per hour, a shortage of funds existed on that date. Although the Respondent was not certain that the four thousand dollar ($4,000) deposit on April 3rd, 2003 was from [the respondent’s clients], that is the logical inference to be drawn from the evidence.” “... Aside from approximately three hundred dollars ($300.00), the only money held in escrow related to Respondent’s representation in this case.

Four days after the escrow deposit, Rees should not have been confused as to whether three thousand dollars ($3000.00) had already been earned when those funds were improperly 'withdrawn.” It rejected the respondent’s explanation based on her change from a retainer fee arrangement to an engagement fee arrangement, 8 finding that “[u]nder all the circumstances, this explanation cannot stand careful scrutiny.” The respondent did not file any exceptions to the hearing court’s findings of fact or conclusions of law. In fact, at ²⁵³ argument, she expressly acknowledged her misconduct and made clear that she was not challenging that aspect of the case. The petitioner, on the other hand, has taken exceptions to the hearing court’s failure to find violations of Rules 1.15(b) 9 and 1.16(d). 10 The basis for these exceptions is essentially that the respondent acknowledged in testimony that she failed to send copies of her billing statement to her clients in response to their July letter and that, according to her own testimony, she was made aware at the peer review hearing of an error in billing her clients and conceded that she owes them a refund of $257.00. The petitioner makes the point that the refund, although conceded, has not yet been made.

The hearing court expressly determined that the respondent’s clients were not credible when they testified that they had not received billings from the respondent. On the other hand, immediately after making that finding, it observed: “It certainly would have been a better practice for the Respondent to have re-submitted the aforesaid billings to her clients as well as to have refunded two hundred fifty-seven ($257.00) that is due to them.”[ 11 ] ²⁵⁴ Thus, its findings appear to reflect that it found that a refund, in the amount contended by the petitioner, was in fact due to the respondent’s clients. Accordingly, we sustain the petitioner’s exceptions. This brings us to the sanction that is appropriate in this case.

As to that, the petitioner recommends that the respondent be indefinitely suspended from the practice of law. That sanction is, it says, “appropriate for the misconduct in this case,” and “will serve the purpose of protecting the public by requiring the Respondent, before she is permitted to practice law again, to demonstrate in a reinstatement petition that the personal issues described in this proceeding have been addressed sufficiently to enable her to render adequate legal service and to conduct her practice in compliance with the Rules of Professional Conduct.” Acknowledging her misconduct and expressing her embarrassment as a result, the respondent asks the Court to impose no sanction. The misconduct, she maintains, is an isolated instance, which is not likely to be repeated. 12 The purpose of attorney discipline is well settled-to protect the public, not to punish the erring attorney. Attorney Griev.

Comm’n v. Parker, 389 Md. 142, 155 , 884 A.2d 104, 112 (2005); Attorney Griev. Comm’n v. Culver, 381 Md. 241, 283-84 , 849 A.2d 423, 448-49 (2004). That purpose is achieved, the public is protected, when the sanctions are commensurate with the nature and gravity of the violations and the intent with which they were committed. Attorney Grievance Comm’n v. Stein, 373 Md. 531, 533 , 819 A.2d 372 , ²⁵⁵ 375 (2003).

While the circumstances of each case-the nature and effect of the violations-are critical, and ordinarily decisive, factors in determining the severity of the sanction to be imposed, Parker, 389 Md. at 155 , 884 A.2d at 112 , there are other important factors we have identified, including “the lawyer’s state of mind which underlies the misconduct, actual or potential injury flowing from the misconduct, the duty of this Court to preserve the integrity of the profession, the risk to the public in allowing the Respondent to continue in practice, and any mitigating or aggravating factors,” Attorney Griev. Comm’n v. Monfried, 368 Md. 373, 396 , 794 A.2d 92, 105 (2002), the attorney’s remorse for the misconduct, Attorney Griev. Comm’n v. Wyatt, 323 Md. 36, 38 , 591 A.2d 467, 468 (1991), the likelihood of repetition of the misconduct, Attorney Grievance Comm’n v. Freedman, 285 Md. 298, 300 , 402 A.2d 75, 76 (1979), and the attorney’s prior grievance history. Maryland State Bar Ass’n v. Phoebus, 276 Md. 353, 362 , 347 A.2d 556, 561 (1975).

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