Attorney Grievance Commission v. Somerville

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel filed, pursuant to Maryland Rule 16-751 1 of the Maryland Rules of Procedure, a Petition ⁵⁸⁸ For Disciplinary Or Remedial Action, against Sally L. Somerville, the respondent, in which it was charged that the respondent violated Rules 1.1, Competence, 2 1.3, Diligence, 3 1.4, Communication, 4 1.5, Fees, 5 8.1, Bar Admission and Disciplinary Matters, 6 and 8.4, ⁵⁸⁹ Misconduct, 7 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. Bar Counsel also alleged that the respondent violated Maryland Code (1989, 1995 Replacement Volume) § 10-306 8 of the Business and Occupation Article. The alleged violations were committed during the course of the respondent’s handling of the estate of the complainant’s grandmother and, it was alleged, involved, among other defaults, misappropriation of estate funds. We referred the case to the Honorable Stephen M. Waldron, of the Circuit Court for Harford County, for hearing.

See 16-757. The respondent, although served with process, did not file an answer or appear for the hearing. At the hearing, the hearing court received from the petitioners four exhibits, consisting of affidavits and documents. Following the hearing, it made findings of fact, see 16-757(c), 9 and drew conclusions of law, as follows: ⁵⁹⁰ “Melva Miller, a resident of New York, retained Respondent in March 1999 to represent her in connection with her deceased grandmother’s estate.

Respondent filed a Petition to Appoint Personal Representative on July 8,1999, and Ms. Miller was appointed Personal Representative on August 26, 1999. “Respondent failed to file an inventory, which was due on November 24, 1999. She did not file a first administration account, which was due on May 22, 2000. “On September 20, 2000, Ms. Miller’s lawyer in New York State wrote to Respondent about her failure to file the inventory and account. Ms. Miller and her attorney made numerous attempts to contact Respondent, but she did not respond. Ms. Miller was able to reach Respondent by telephone in August 2002.

Ms. Miller told her that a Delinquent Notice had been issued by the Register of Wills for failure to file the account. Respondent acknowledged she had neglected the matter, but promised to conclude the estate administration as soon as possible. Respondent took no action to file the inventory and account. Ms. Miller made repeated attempts to reach Respondent by telephone in December 2002, without success. “Ms. Miller then retained Robert L. Pierson, Esquire, to replace Respondent as counsel.

Mr. Pierson wrote to Respondent on January 2 and February 20, 2003, requesting information about the estate. Respondent did not respond. Mr. Pierson filed a petition to compel Respondent’s testimony before the Orphans’ Court for Harford County. Respondent appeared in the Orphans’ Court on June 6, 2003, and Mr. Pierson was able to obtain documents and information from her.

Based on that information, Mr. Pierson concluded that Respondent owed the estate $4,965.85. He wrote to Respondent on July 7, 2003, to try to resolve that claim. He left telephone messages for her on July 17 and 18, 2003, ⁵⁹¹ but has received no response to the letter or telephone messages. Mr. Pierson’s review of the estate checking account records and his interview of Respondent uncovered several improprieties in Respondent’s handling of estate funds.

On September 14, 1999, Respondent drew a check for $1,000.00 from the estate account. Ms. Miller never authorized her to take those funds, and Respondent had never filed a petition for approval of counsel fees. Respondent had no authority to take those funds from the estate. Respondent also paid two individuals, Barbara Giles and Elaine Morgan, $500.00 each from estate funds without any apparent justification.

Respondent also overpaid the legatees, resulting in the estate having insufficient funds to pay taxes and expenses. The estate cannot be closed because of that deficiency. “After Ms. Miller submitted a complaint to the Attorney Grievance Commission, Office of Bar Counsel wrote to Respondent on October 8, November 4 and December 9, 2002, requesting that she respond to Ms. Miller’s complaint. Respondent did not answer any of those letters. Commission Investigator William M. Ramsey then made several attempts to interview Respondent.

Respondent never submitted to an interview. Respondent evaded service of the Statement of Charges when Mr. Ramsey attempted to serve her. Respondent failed to attend the Peer Review meeting regarding Ms. Miller’s complaint. “Respondent acted incompetently in her representation of Ms. Miller in violation of Rule 1.1 of the Maryland Rules of Professional Conduct by not filing an inventory and an administration account and by improperly disbursing estate funds. “Her failure to file the inventory and account and her failure to respond to the Delinquent Notice and other inquiries by the Register of Wills and Orphans’ Court was a lack of diligence in violation of Rule 1.3 of the Maryland Rules of Professional Conduct. “Respondent violated Rule 1.4 of the Maryland Rules of Professional Conduct by failing to return telephone calls ⁵⁹² from Ms. Miller and her attorneys and by failing to keep her informed of the status of the estate administration. “Respondent took $1,000.00 from the estate checking account on September 14, 1999. Ms. Miller never authorized Respondent to take those funds and Respondent had never filed a petition to authorize her to be paid counsel fees from the estate.

By taking those funds without permission. Respondent collected an unreasonable fee in violation of Rule 1.5(a) of the Maryland Rules of Professional Conduct. Respondent’s unauthorized taking of estate funds was a criminal act in violation of Rule 8.4(b) and § 10-306 of the Business Occupations and Professions Article, Annotated Code of Maryland. Respondent’s action was dishonest, and in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct. “Respondent’s failure to respond to letters from Bar Counsel, her refusal to meet with an investigator for the Attorney Grievance Commission and her failure to attend the Peer Review meeting in this matter were knowing failures to respond to requests for information from a disciplinary authority in violation of Rule 8.1(b) of the Maryland Rules of Professional Conduct[ 10 ] “By her failure to take substantial action to administer the estate, her misuse of estate funds to make unauthorized and excessive expenditures, and by taking estate funds without authorization.

Respondent engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Maryland Rules of Professional Conduct.” The petitioner took no exceptions to the findings and conclusions of the hearing court and, as we have seen, the respondent did not participate in these proceedings. The petitioner did, however, file Petitioner’s Recommendation for Sanction, ⁵⁹³ in which it urged the respondent’s disbarment, noting that the respondent “neglected the estate matter, failed to file an inventory and account, ignored notices from the Register of Wills and inquiries from her client, made improper and excessive disbursements from the estate account and took $1000.00 without authorization. Respondent also failed to respond to the Petitioner regarding this