Attorney Grievance Commission v. Storch

GREENE, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to Maryland Rule 16-751(a), filed a “Petition For Disciplinary or Remedial Action” against Patricia DuVall Storch (“Respondent” or “Storch”), on April 25, 2014. Petitioner charged Storch with violating various Maryland Lawyers’ Rules of Professional Conduct (“MLRPC” or “Rule”), specifically Rule 1.1 (Competence), 1 Rule 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer), 2 Rule 1.3 (Diligence), 3 Rule 1.16(a) and (d) ⁸⁵ (Declining or Terminating Representation), 4 Rule 3.2 (Expediting Litigation), 5 Rule 3.4(a) and (c) (Fairness to Opposing Party and Counsel), 6 and Rule 8.4(a) and (d) (Misconduct). 7 This Court referred the matter to the Honorable Richard S. Bernhardt of the Circuit Court for Howard Country for a hearing and to render findings of fact and recommended conclusions of law pursuant to Maryland Rule 16-757. Judge Bernhardt conducted an evidentiary hearing on November 19, 2014. Petitioner was represented by former Assistant Bar Counsel James Gaither.

Respondent was not present, despite ⁸⁶ issuance of proper notice. Thereafter, Judge Bernhardt issued “Findings of Fact and Conclusions of Law,” in which he found, by clear and convincing evidence, that Storch’s acts constituted violations of MLRPC 1.1, 1.2(a), 1.3, 1.16(a) and (d), 3.2, 3.4(a) and (c), and 8.4(a) and (d). Judge Bernhardt’s findings of fact and conclusions of law are summarized in pertinent part as follows: Findings of Fact Respondent was admitted to the practice of law in Maryland on December 10, 1982. She was appointed personal representative of the Estate of George Gault on or about May 2, 2007.

As personal representative, Respondent failed to timely file Interim Accounts, failed to appear for hearings before the Orphans’ Court for Howard County, and failed to file a required certificate of service. As a result, on July 11, 2012, the Orphans’ Court for Howard County issued an Order removing Respondent as personal representative and appointed successor personal representative, Michael W. Davis. This Order further required Respondent to deliver to Mr. Davis all of the estate property: approximately $50,000 in a checking account, the decedent’s residence (worth approximately $264,000), a Charles Schwab investment account, two IRA accounts at T.Rowe Price, and the ledgers, books, and accountings related to the Estate. Respondent continued nonetheless to act as personal representative of the Estate and did not turn over the estate property to Mr. Davis.

On August 29, 2012, upon Respondent’s continued failure to comply with the July 11, 2012 Order, Mr. Davis filed a Petition for Constructive Civil Contempt. The Orphans’ Court issued a Show Cause Order for Contempt and scheduled a hearing for October 3, 2012. At the October 3 hearing, the Orphans’ Court found Respondent in constructive civil contempt of the July 11, 2012 Order and provided Respondent with the opportunity to purge her contempt if she delivered the estate property to Mr. Davis by October 9, 2012. Respondent failed to deliver the estate property to Mr. Davis by October 9, 2012.

Consequently, the Orphans’ Court issued a Show Cause Order ⁸⁷ for Contempt on October 12, 2012, requiring Respondent to show cause in writing as to why the court should not find her in contempt for failure to purge her prior contempt by not delivering the estate property to Mr. Davis. The Orphans’ Court further scheduled a hearing for October 31, 2012 and ordered Respondent to produce all estate property to Mr. Davis in the presence of the court. Although Respondent appeared before the Orphans’ Court on October 31, she failed to produce the estate property at the hearing, and left during the hearing without the permission of the court. The Orphans’ Court found Respondent in direct civil contempt of its October 3, 2012 Order and imposed continuing fines against Respondent until she delivered the estate property to Mr. Davis.

Based on the record before us, Respondent has yet to deliver the estate property to Mr. Davis and remains in contempt. Conclusions of Law Rule 1.1 requires an attorney to provide competent representation to a client by applying the appropriate legal knowledge, skill, thoroughness, and preparation necessary for client matters. Attorney Grievance Comm’n v. Shakir, 427 Md. 197, 205 , 46 A.3d 1162, 1167 (2012). Failure to make the proper and required filings in a client matter demonstrates a lack of the appropriate preparation and thoroughness necessary to provide competent representation.

Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54 , 891 A.2d 1085, 1097 (2006) (concluding that an attorney’s failure to file the necessary documents in his client’s adoption matter demonstrated a lack of preparation and thoroughness, in violation of MLRPC 1.1). Failure to attend a court appearance also violates Rule 1.1, absent sufficient explanation. Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 74 , 753 A.2d 17, 26 (2000). Here, Respondent failed to timely file Interim Accounts, failed to appear for hearings before the Orphans’ Court, and failed to file a required certificate of service.

The above behavior also violates Rules 1.2(a) and 1.3. Rule 1.2 requires an attorney to abide by a client’s decisions ⁸⁸ concerning the objectives of the representation and, when appropriate, to consult with the client as to the means by which those objectives are to be pursued. When a lawyer fails to take any steps towards the client’s objective, the lawyer necessarily fails to abide by the client’s decision concerning that objective. Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 223 , 46 A.3d 1169, 1177 (2012) (citing Attorney Grievance Comm’n v. Granger, 374 Md. 438, 455 , 823 A.2d 611, 621 (2003)).

Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in representing a client. As personal representative of the Estate of George Gault, Respondent had an obligation to file Interim Accounts in a timely fashion and, when necessary, appear for hearings. Once the Orphans’ Court removed her as personal representative, Respondent had a duty to the Estate to turn over the property in her possession to the successor personal representative. Both the failure to file Interim Accounts and the failure to turn over the Estate property to Mr. Davis is conduct that demonstrates a lack of diligence and promptness.

Rule 1.16(a) requires an attorney to withdraw from representation if the representation will result in a violation of the MLRPC or other law. Rule 1.16(d) states that upon termination of representation, an attorney shall take steps to protect a client’s interests. This includes surrendering papers and property to which the client is entitled. Respondent violated Rule 1.16(a) by continuing to act as personal representative despite Orders issued by the Orphans’ Court.

Furthermore, by failing to turn over Estate property following her removal, Respondent violated Rule 1.16(d). Respondent’s failure to turn over Estate property after her removal also violates Rules 3.2 and 3.4. Rule 3.2 states that a lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client. Rule 3.4(a) states, in part, that an attorney shall not unlawfully obstruct another party’s access to evidence.

In addition, Rule 3.4(c) states that an attorney shall not knowingly disobey an obligation under the rules of a tribunal. Respondent continually failed to turn over property despite several Orders issued by the Orphans’ ⁸⁹ Court requiring her to appear before it and turn over property in her possession. This unnecessarily delayed the administration of the Estate and prevented the successor personal representative from handling the matters of the Estate. Respondent’s failure to relinquish the Estate property also demonstrated an intentional • disregard for the Orders of the Orphans’ Court.

Rule 8.4(a) states that it is professional misconduct for an attorney to violate or attempt to violate the MLRPC. As a result of the violations above, Respondent also violated Rule 8.4(a). Pursuant to Rule 8.4(d), it is professional misconduct for an attorney to engage in conduct that is prejudicial to the administration of justice. Failure to attend hearings, pursue her client’s objectives, and multiple failures to abide by the Orders of the Orphans’ Court all represent conduct that is prejudicial to the administration of justice.

Discussion In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record. Attorney Grievance Comm’n v. Jarosinski, 411 Md. 432, 448 , 983 A.2d 477, 487 (2009). Where no exceptions are filed timely to the hearing judge’s findings of fact, we “may treat the findings of fact as established for the purpose of determining appropriate sanctions[.]” Md. Rule 16-759(b)(2)(A). “In other words, we deem the hearing judge’s findings of fact ‘correct if (1) they are not clearly erroneous, or (2), at the Court’s option, if neither party filed exceptions to them.’ ” Attorney Grievance Comm’n v. Bell, 432 Md. 542, 558 , 69 A.3d 1040, 1049 (2013) (quoting Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334 , 68 A.3d 862, 868 (2013)). We review the hearing judge’s conclusions of law for legal correctness.

Md. Rule 16—759(b)(1). Neither party has taken timely exception to the hearing judge’s findings. Therefore, we deem Judge Bernhardt’s findings of fact as established. Bell, 432 Md. at 558 , 69 A.3d at 1049 .

As to his conclusions of law, the hearing judge determined that Storch violated MLRPC 1.1, 1.2(a), 1.3, 1.16(a) and ⁹⁰ (d), 3.2, 3.4(a) and (c), and 8.4(a) and (d). 8 Based upon our assessment of the record, we agree with the hearing judge’s