Attorney Grievance Commission v. Richardson

BELL, Chief Judge. The Attorney Grievance Commission of Maryland (the “Commission” or the “petitioner”), through Bar Counsel, filed a Petition for Disciplinary Action against T. Carlton Richardson, the respondent, alleging misconduct arising out of disciplinary proceedings in Florida. Specifically, the petition alleges, and the respondent acknowledges, that he has been the subject of two disciplinary proceedings in the Supreme Court of Florida, both of which resulted in his being suspended from the practice of law in that State for ninety-one and sixty days respectively. In the first proceeding, the Florida Supreme Court affirmed the referee’s determination that the respondent had charged a clearly excessive attorney’s fee, and it imposed a harsher sanction than was recommended.

In the second, the court affirmed the determination that the respondent filed a manifestly frivolous and malicious lawsuit. The petition in the instant case also states, and again the respondent does not dispute, that the respondent was the subject of a reciprocal discipline proceeding, with respect to the first Florida proceeding, in the District of Columbia, resulting in the same term of suspension in the District of Columbia as was imposed in Florida. 1 ³⁵⁶ In this reciprocal discipline proceeding, the petitioner sought a determination by this Court that the respondent, by the acts found in the Florida proceedings, violated the following Rules of the Maryland Rules of Professional Conduct 2 : 1.5 (Fees); 3 1.8 (Conflict of Interest: Prohibited Transac ³⁵⁷ tions); 4 3.1 (Meritorious Claims and Contentions); 5 and 8.4 (Misconduct). We referred the matter to the Honorable Clayton Greene, Jr. of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law pursuant to Maryland Rule 16-711(a). 6 Following a hearing, at which testimony and exhibits were received, Judge Greene concluded that the respondent had not proven by a preponderance of the evidence that he did not engage in the misconduct as determined by the Supreme Court of Florida. After setting out as background the respondent’s bar memberships 7 and reviewing briefly the Florida and District of Columbia disciplinary proceedings, the court made findings and drew conclusions, as follows: ³⁵⁸ “Petitioner submitted two final judgments from the Supreme Court of Florida concerning the attorney grievance proceedings involving the Respondent.

In these two final judgments, the Supreme Court of Florida found that Respondent engaged in professional misconduct. Pursuant to Rule 16-710,[ 8 ] Petitioner requested the Court accept the final judgment as conclusive proof of misconduct.” “Respondent offered his own testimony in an attempt to mitigate. Respondent testified that he served a total of twenty months of suspension in the District of Columbia for his misconduct and that he acknowledged his unethical conduct. Respondent stated that he resigned from the Florida Bar but is now eligible for readmission.

Respondent testified that since the incident in Florida which gave rise to these proceedings, he has attended an ethics course in billing, attended several continuing legal education courses, tried to improve his operations, become a sole practitioner, learned how to deal with client fee disputes, increased his sensitivity towards his clients and has learned from his mistakes. “In response, Petitioner argued that Respondent has not altered his billing practices since his sanctioned conduct in Florida. In support of this, Petitioner submitted the Respondent’s schedule of fees and costs from April 1, 1993. Petitioner argued that while respondent testified that the ³⁵⁹ schedule of the fees was a description of his new billing practices, Respondent also testified that he employed the same billing practice -when dealing with the Joneses in Florida. Therefore, Petitioner argued, Respondent has not changed his billing practices. “Respondent argued that this Court should not accept Florida’s findings because Florida requires a different standard of proof for charges of excessive fees and frivolous lawsuits.

Respondent also argued that Florida’s proceedings should be rejected because he was denied substantive due process; there were irregularities in the Florida proceedings, and Petitioner did not prove the elements of the misconduct. “The Court rejects Respondent’s argument that the differing standards of proof warrant a rejection of Florida’s final judgment. The Maryland Rules and appellate decisions of this state make no distinction between the final determinations by judicial tribunals in states requiring different standards of proof, and this Court only looks to see if the final adjudication in a disciplinary proceeding was made by a judicial tribunal. Attorney Grievance Commission, v. Miller, 310 Md. 163 [ 528 A.2d 481 ] (1987). “The Court finds that Florida’s final judgments are conclusive proof of Respondent’s misconduct. Petitioner submitted the Supreme Court of Florida’s decisions of April 19, 1990 ... and October 31, 1991 ... and the Court finds this is clear and convincing evidence of final judgments by a judicial tribunal.

See Miller, 310 Md. at 163 [ 528 A.2d at 481 ], As Respondent’s submitted evidence does [not] explain why the Florida decision should not be accepted, Respondent has not established any factual matters by a preponderance of the evidence. Therefore, the Court accepts the Supreme Court of Florida’s final adjudication as conclusive proof of Respondent’s misconduct and accepts the facts found by the Supreme Court of Florida. “FINDINGS OF FACT “I. Excessive Fees ³⁶⁰ “1. On March 31, 1983, Respondent was retained by Mr. and Mrs. Roosevelt Jones to probate the estate of Leula King in Tampa, Florida. “2. The Joneses agreed to pay the Respondent a $500.00 origination fee and 10 per cent of the estate’s gross value.

The parties agreed that the origination fee would be applied towards the total fee. “3. Leula King had died approximately fifty years earlier and had no outstanding debts. The estate was not complex and consisted of a piece of real property valued at approximately $22,000.00. “4. Between February 24, 1984 and July 5, 1985, Respondent prepared the necessary documents for probate and charged the Joneses $10,550.99. “5.

A portion of the Joneses’ legal fees represented a monthly cover charge which Respondent imposed on all his clients to offer his pro bono services. “6. Respondent charged the Joneses a minimum of twenty minutes per telephone call, even if there was no answer, and charged the Joneses forty five minutes per page for documents he prepared. “7. Respondent advised and assisted the Joneses to obtain a $13,000.00 loan from Community Federal Savings and Loan Association of Tampa. A substantial portion of the loan was used to satisfy the Respondent’s fees. “8.

The Honorable Dennis Alvarez of the Hillsborough County Circuit Court, Probate Division, heard expert testimony and determined that $2,500.00 was a reasonable attorney fee in the probate case and that $150.29 was the amount of the costs. On remand, Judge Alvarez determined that the Joneses had paid $10,550.99 for the King estate and ordered Respondent to reimburse $7,970.00 to the King estate. Further, Judge Alvarez required Respondent to reimburse the King estate $6,500.00 for the expense the estate incurred in defending itself regarding the excessive attorney’s fees before the Probate Court and the Second ³⁶¹ District Court of Appeals and $1,000.00 for fees incurred in the two proceedings before the Supreme Court of Florida. “9. The Joneses had also retained Respondent to prepare their "wills. “10.

The Joneses combined income at the time was less than $14,000.00 and their gross estate was worth no more than $75,000.00. “11. Respondent charged the Joneses $85.00 for the initial consultation, a $750.00 origination fee, and a minimum attorney’s fee of $1,250.00. The Joneses paid Respondent $1,444.93 for his services to prepare the wills. Respondent also sent the Joneses an invoice for $1,273.97 for general services which included a finder’s fee associated with assisting Mrs. Jones in obtaining the loan to pay his attorney’s fees. “12.

Through expert testimony in Florida, it was determined that $2, 500.00 was a generous fee for the probate of the King estate, $400.00 was a generous fee for the work performed on the Joneses’ wills and $200.00 or $300.00 was sufficient for the general services that Respondent performed.

II

Frivolous Claim “1. Respondent represented the personal representative of an estate in a probate proceeding in the Circuit of Florida. Judge Alvarez determined that attorney’s fees charged by Respondent were excessive and ordered him to reimburse the estate. “2. Respondent appealed Judge Alvarez’s decision to the Second District Court of Appeal.

Respondent argued that Judge Alvarez lacked jurisdiction to order the refund of excessive compensation because the payment had been rendered by the personal representative personally, rather than from the estate. “3. The Second District Court of Appeal found Respondent’s argument to be without merit, and remanded the matter to the Probate Court to correct the amount of the ³⁶² reimbursement. Review by the Supreme Court of Florida was denied. “4. After recalculation of the reimbursement by the Probate Court, Respondent attempted to file an appeal which was dismissed as being untimely filed. “5.

Respondent, on two occasions, filed writs of mandamus to the Supreme Court of Florida, seeking the Second District Court of Appeal to reinstate his second appeal, to vacate the latest judgment entered by Judge Alvarez and to compel the Probate Court to withdraw jurisdiction. The Supreme Court of Florida denied both petitions for writ of mandamus. “6. Respondent then filed a complaint in the United States District Court for the District of Florida, alleging that the reimbursement order violated his civil rights because of a lack of jurisdiction. “7. Respondent named the following defendants in the complaint: the personal representative and his wife, the attorneys who succeeded the Respondent in the probate matter, Judge Alvarez, the Judges of the Second District Court of Appeal and the Justices of the Supreme Court of Florida.

Respondent sought $1,000,000.00 in damages as well as injunctive relief. “8. The Federal Court granted the defendants’ motion to dismiss and found that the complaint was manifestly frivolous and malicious. Further, the Court imposed sanctions under Rule 11 of the Federal Rules of Civil Procedure. “FINDINGS OF FACT “Under Rule 1.5 of the Rules of Professional Conduct, it is professional misconduct to charge an unreasonable fee to clients. In determining the reasonableness of a fee, the Court is to consider the following factors: the time and labor required, the novelty and difficulty of the question involved, and the skill requisite to perform the legal service properly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other ³⁶³ employment by the lawyer, the fee customarily charged in the locality for similar legal services; the amount involved and the results obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer or lawyers performing the service; and whether the fee is fixed or contingent.

Rule 1.5. Additionally, Rule 1.5 requires the lawyer to communicate the basis or rate of the fee to the client, preferably in writing, before or within a reasonable time after commencing the representation if the lawyer has not regularly represented the client. Rule 1.5. Respondent’s fee charged to the Joneses for legal services in probating the King estate and preparing the will in the previously mentioned facts was excessive.

Therefore, Respondent has violated Rule 1.5 of the Rules of Professional Conduct. “Under Rule 3.1 of the Rules of Professional Conduct, a lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous. As described in the facts, Respondent’s federal law suit against the Judges of the Second District Court of Appeal and the Justices of the Supreme Court of Florida, the attorneys who succeeded Respondent in the probate matter and the judge of the probate court was manifestly frivolous and malicious. The federal suit was filed by Respondent after Respondent’s two appeals of the Probate Court’s final judgment and two writs of mandamus were denied. Therefore, Respondent violated 3.1 of the Rules of Professional Conduct. “Under Rule 8.4(d) of the Rules of Professional Conduct, it is professional misconduct for a lawyer to engage in conduct that is prejudicial to the administration of justice.

As described in the facts, Respondent’s actions of filing a frivolous and malicious lawsuit against the Florida judges that ruled against him in previous actions prejudiced the administration of justice. Therefore, Respondent violated Rule 8.4(d) of the Rules of Professional Conduct. “Petitioner had initially alleged Respondent violated Rule 1.8 of the Rules of Professional Conduct, but [later] aban ³⁶⁴ don[ed] his argument. Therefore, the Court finds the Respondent did not violate Rule 1.8 of the Rules of Professional Conduct.” The petitioner took no exceptions to the findings and conclusions of the hearing court. It recommends that the respondent be indefinitely suspended from the practice of law with the right to re-apply for admission upon his readmission to the Florida and the District of Columbia bars.

The petitioner reasons that, because, on the facts found by the Supreme Court of Florida and set out in the findings of the hearing court, both Florida and the District of Columbia saw fit to impose a term of suspension, “Respondent’s readmission under conditions satisfactory to those jurisdictions, if any, would serve to protect the public adequately....” The petitioner also urges that the order of suspension require the respondent to disclose his clients, and the matters currently pending, to Bar Counsel, and, within fifteen days of its filing, a copy of the letter notifying clients, opposing counsel and any unrepresented party, of his suspension. On the other hand, the respondent filed ten (10) exceptions. 9 Grouping similar ones together, they may be summarized as follows: 1) to the admission into evidence of the Florida and the District of Columbia disciplinary judgments, on the grounds that they are not entitled to full faith and credit because the reciprocal discipline judgment, like the Florida judgments “were rendered in violation of respondent’s due process rights (14th Amendment)” and, in addition, the Flori ³⁶⁵ da judgments were rendered in violation of the double jeopardy prohibition (5th Amendment) of the U.S. Constitution; 2) to the hearing court’s denial of his motion for judgment at the close of the petitioner’s case and its rulings excluding evidence offered to impeach the Florida judgments. The respondent contends that the former ruling was erroneous because Florida was not required to prove the misconduct by clear and convincing evidence, the Maryland standard, and the latter rulings were erroneously based on the collateral effect of the Florida judgments; 3) to the hearing court’s refusal to apply the Maryland Uniform Enforcement of Foreign Judgments Act to the Florida disciplinary judgment and instead concluding that the respondent’s attempts to impeach those judgments “are merely attempts ... to relitigate issues already decided by Florida tribunals;” 4) to the hearing court’s characterization of the federal law suit the respondent filed as “malicious,” in addition to “frivolous,” alleging that the latter is the only term the Florida referee used; 5) to the hearing court’s conclusion that the filing of the federal law suit, naming the Florida judges as defendants, which was later determined by the federal court to be baseless, is conduct prejudicial to the administration of justice; 6) to the hearing court’s refusal to rule on the respondent’s discovery motions to determine the sufficiency of the petitioner’s denials to requests for admissions; and 7) to the hearing court’s denial of the respondent’s motion to quash service of process, on the grounds that the respondent, a D.C. resident, was immune from such service while attending a hearing before the Review Board of the Attorney Grievance Commission of Maryland. None of the exceptions has merit.

This case is a reciprocal discipline case. In such cases, “[a] final adjudication in a disciplinary proceeding by a judicial tribunal ... that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.” Rule 16-710(e). See Attorney Griev. Comm’n v. Gittem, 346 Md. 316, 324 , 697 A.2d 83, 87 (1997); Attorney Griev.

Comm’n v. Willcher, 340 Md. 217, 221-22 , 665 A.2d 1059, 1061 (1995); Attorney Griev. Comm’n v. Saul, 337 ³⁶⁶ Md. 258, 267-68, 653 A.2d 430, 434 (1995); Attorney Griev. Comm’n v. Hopp, 330 Md. 177, 185-86 , 623 A.2d 193, 197 (1993); Attorney Griev. Comm’n v. Sparrow, 314 Md. 421, 425-26 , 550 A.2d 1150, 1152 (1987); Attorney Griev.

Comm’n v. Parsons, 310 Md. 132, 142-43 , 527 A.2d 325, 330 (1987); Attorney Griev. Comm’n v. Haupt, 306 Md. 612, 614-15 , 510 A.2d 590, 591-92 (1986); Attorney Griev. Comm’n v. Bettis, 305 Md. 452, 455 , 505 A.2d 492, 493 (1986); Attorney Griev. Comm’n v. Moore, 301 Md. 169, 171 , 482 A.2d 497, 498 (1984); Attorney Griev.

Comm’n v. Rosen, 301 Md. 37, 39 , 481 A.2d 799, 800 (1984). Thus, evidence that the respondent was found, by the Supreme Court of Florida, to have engaged in misconduct and that that finding was used in the District of Columbia to adjudicate reciprocal discipline proceedings against him, is not only admissible in this Court, but such evidence conclusively establishes that he engaged in that misconduct. As we have seen, the respondent was suspended on two occasions pursuant to an order of the Supreme Court of Florida and the District of Columbia Court of Appeals did likewise. The orders of the Florida and District of Columbia courts were issued only after disciplinary proceedings had been initiated and a hearing had been held to adjudicate the charges referred.

Thus, the orders suspending the respondent conclusively establish that the respondent engaged in misconduct, they being final adjudications by a judicial