Attorney Grievance Commission v. Sutton

WILNER, J. In July 2005, petitioner, Attorney Grievance Commission (AGC), through Bar Counsel, filed two petitions against David D. Sutton, respondent, alleging numerous violations of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC). 1 Pursuant to Md. Rule 16-752, we referred both petitions to Judge Lynn K. Stewart of the Circuit Court for Baltimore City to conduct a hearing and make findings and proposed conclusions of law. For the reasons stated below, we sustain the findings of misconduct, sustain some, but not all, of Bar Counsel’s exceptions, and accept the recommendation of Bar Counsel that respondent be disbarred. BACKGROUND Respondent is a solo practitioner who was admitted to the Maryland Bar on June 21, 2000. It appears that within two years after being admitted, respondent began having difficulty which resulted in complaints from eight different clients between November, 2002 and December, 2004.

Six out of the eight complaints are set forth in Bar Counsel’s first petition, Misc. Docket AG No. 23, wherein Bar Counsel charged respondent with violating MLRPC 1.1 (competence), 1.3 (diligence), 1.4 (communication), 1.5 (fees), 1.15 (safekeeping), 1.16 (declining or terminating representation), 8.1 (cooperation with Bar Counsel), and 8.4 (misconduct). Bar Counsel’s second petition, Misc. Docket AG No. 24, charged respondent with violating MLRPC 1.1, 1.3, 1.4, 1.5, 8.1, and 8.4 stemming from his representation of one client in a bankruptcy proceeding and another client in a tax sale matter. ³¹⁶ Misc.

Docket AG No. 23 A. Complaint of Julius William Pitts, Sr. As his mother’s caretaker, Julius Pitts applied, on behalf of his mother, for medical assistance from the Maryland Department of Human Resources on or about June 9, 2003. A caseworker informed Mr. Pitts that his mother’s assets exceeded the acceptable limit of $2,500 by approximately $1,700 and instructed Mr. Pitts to transfer ownership of his mother’s life insurance policy to the William C. Brown Funeral Home. A few weeks later, Mr. Pitts transferred ownership of the policy to the funeral home and reapplied for medical assistance in August, 2003. Upon reapplying, Mr. Pitts was informed that, due to a change in regulations, his transfer of ownership to the funeral home was not acceptable and that he should have transferred the ownership of the policy to himself as the representative of his mother.

This change resulted in a denial of his second application because his mother’s assets were still greater than the acceptable limit. Mr. Pitts then filed an appeal, but before his appeal was heard, his mother passed away. Mr. Pitts was referred to respondent and met with him in October, 2003. At this initial meeting, respondent collected $1,000 of a total agreed-upon fee of $1,500.

A hearing on Mr. Pitt’s appeal was scheduled before an Administrative Law Judge for October 14, 2003. Respondent appeared on that day and requested a postponement, which was granted. The hearing was rescheduled for October 28. Respondent not only failed to advise his client of the postponement but failed to appear himself on the 28th, and, as a result, the appeal was dismissed and the case closed.

Respondent failed to advise his client of the dismissal. Mr. Pitts made several attempts to contact respondent to determine the status of the matter, all to no avail. Finally, in April, 2004, he filed a complaint with Bar Counsel. Bar Counsel requested a response to Mr. Pitt’s complaint, but received none.

The hearing judge concluded that, with respect to his representation of Mr. Pitts, respondent had violated MLRPC 1.1 by ³¹⁷ failing to competently represent his client because he was not thoroughly prepared for representing Mr. Pitts at an initial hearing or at a subsequent re-scheduled hearing, MLRPC 1.4 by failing to communicate with his client sufficiently and by failing to keep Mr. Pitts informed of the status of his case, and MLRPC 8.1 by failing to respond to Bar Counsel’s numerous requests for information, and by failing to provide Bar Counsel with information regarding retention of the fee paid by Mr. Pitts. Respondent did not file exceptions to any of the hearing judge’s findings of facts and conclusions of law. Bar Counsel excepted to her failure to find a violation of MLRPC 1.3, 1.5(a), 1.16(d), and 8.4(d). We will sustain Bar Counsel’s exceptions with respect to MLRPC 1.3 and 8.4(d).

We agree with Bar Counsel that the facts fully support a conclusion that respondent failed to represent Mr. Pitts in a diligent and prompt manner (1.3), and engaged in conduct that is “prejudicial to the administration of justice.” (8.4(d)). We shall overrule Bar Counsel’s exceptions as to MLRPC 1.5(a) and 1.16(a). B. Complaint of Brenda A Myers On December 20, 2002, Ms. Myers filed an application for disability retirement with her employer, the Social Security Administration (SSA), seeking retirement benefits under the civil service retirement system. Ms. Myers, who had been employed by SSA for 35 years, suffered from lower back pain and headaches.

On June 18, 2003, she received a letter informing her that, due to insufficiency of evidence, she did not qualify for disability retirement benefits. On July 10, 2003, Ms. Myers requested reconsideration of the initial determination and met with respondent for the first time. At their initial meeting, Ms. Myers provided respondent with x-rays, doctors’ reports, correspondence regarding her claim and a signed release authorizing respondent to obtain medical information from her health care providers. Respondent did not charge Ms. Myers a flat fee or provide her with an up-front rate at this initial meeting. ³¹⁸ Within a few days after being retained, respondent mailed a letter to the SSA asking that Ms. Myers’s application be reconsidered.

On September 17, 2003, the Office of Personnel Management (OPM) disallowed the request for reconsideration because there was insufficient documentation to support it. Ms. Myers had until October 27, 2003 — thirty days — to appeal OPM’s decision to the Merit Systems Protection Board (Board). Respondent filed an incomplete and unsigned appeal with the Board on October 31, 2003, which resulted in the Board denying and dismissing the appeal because it was filed untimely. While respondent unsuccessfully attempted to obtain Ms. Myers’s medical records from her health care professionals, he failed to inform her that the pursuit of her claim hinged on providing the requested medical documentation.

After several unsuccessful attempts to reach respondent, and after respondent advised Ms. Myers that her application could be re-submitted, Ms. Myers re-filed an application on her own in November, 2004. On March 9, 2004, Ms. Myers filed a complaint against respondent with the AGC. Following two separate requests for information from Bar Counsel, respondent provided Bar Counsel with Ms. Myers’s entire file. During a conversation with Assistant Bar Counsel, respondent stated that he “had never received a complaint before” and was unclear as to the information that was being requested of him.

At that time, however, there was a pending complaint against respondent that was filed by Mr. Pitts. Respondent further stated that he-was unable to obtain the name of Ms. Myers’s doctors from her, but a review of his client file revealed that the names of the physicians were indeed provided to respondent. The hearing judge concluded that respondent violated MLRPC 1.4 by failing to comply with Ms. Myers’s numerous requests for information and by failing to keep her informed of the progress of her case, MLRPC 8.1(a) by knowingly making a false statement to Assistant Bar Counsel that he had never had a complaint lodged against him when one complaint had been previously dismissed and two were pending, and MLRPC 1.3 by not providing sufficient information to the ³¹⁹ OAH for reconsideration of his client’s claim and for filing an untimely, incomplete and unsigned appeal on his client’s behalf. Bar Counsel filed exceptions to the hearing judge’s failure to find a violation of MLRPC 1.1.

We sustain Bar Counsel’s exception and conclude that respondent failed to provide Ms. Myers with competent and thorough representation in representing her in her disability retirement benefit claim. C. Complaint of Icelia Manns In early December, 2003, Ms. Manns was facing a mortgage foreclosure on her home by Chase Manhattan Mortgage Company, due to an arrearage on her mortgage of over $7,000. On December 30, 2003, she engaged respondent to file a petition for bankruptcy on her behalf. Respondent entered into a fee agreement with Ms. Manns, under which Ms. Manns agreed to pay respondent a total fee of $1,000 — $700 to be paid up front and the balance to be paid over time.

Respondent advised Ms. Manns that the foreclosure would be delayed by the filing of a bankruptcy petition. Respondent filed a Chapter 13 petition on behalf of Ms. Manns in the United States Bankruptcy Court on January 27, 2004. Respondent failed to attend both an initial hearing and a rescheduled hearing with the Bankruptcy Trustee, however, and failed as well to file a bankruptcy plan. Consequently, the foreclosure proceeded and Ms. Manns lost her home.

After-wards, respondent filed a Motion for Reconsideration and Request for Hearing, which were denied, and then attempted to negotiate with the mortgagee to extend the fixed terms of the mortgage. No agreement was ever reached with the mortgagee. Ms. Manns attempted numerous times to reach respondent, but respondent failed to answer her telephone calls or attend pre-scheduled meetings. Respondent also did not return any portion of the $700 that Ms. Manns paid him initially and failed to account for the time spent on her case.

In July, 2004, Ms. Manns filed a complaint against respondent with the AGC. ³²⁰ After sending respondent four requests for information, an investigator went to respondent’s office and interviewed him. During the interview, respondent was cooperative with the investigator and provided him with the requested documents regarding Ms. Manns’s claim. When the investigator followed up with further inquiries, however, respondent failed to respond. The hearing judge concluded that respondent violated MLRPC 1.1 by failing to appear at an initial and rescheduled hearing before the Bankruptcy Trustee and by failing to present a Chapter 13 bankruptcy plan on behalf of Ms. Manns, MLRPC 1.4 by failing to return Ms. Manns’s telephone calls, failing to attend pre-scheduled meetings with her, and failing to “communicate with Ms. Manns to inform her of her options or that a Chapter 13 plan was not possible given her inability to make payments,” and MLRPC 8.1(b) by failing to provide Bar Counsel with an accounting of the fee that respondent collected from Ms. Manns and by failing to respond to four requests posted to him by Bar Counsel.

Bar Counsel filed exceptions to the hearing judge’s failure to find violations of MLRPC 1.3, 8.4(d), 1.5(a), 1.15(b), and 1.16(d). We sustain Bar Counsel’s exceptions as to Rules 1.3 and 8.4(d) in that respondent failed to diligently represent Ms. Manns in the bankruptcy proceeding and engaged in misconduct that was prejudicial to the administration of justice by failing to appear for a hearing before the Bankruptcy Trustee. We overrule Bar Counsel’s other exceptions. D. Complaint of Queen Payton Ms. Payton’s complaint was similar to that of Ms. Manns.

Ms. Payton had filed a Chapter 13 proceeding in Bankruptcy Court, but a foreclosure proceeding against her home was scheduled for November 7, 2003. Respondent was retained by Ms. Payton to file a second Chapter 13 bankruptcy proceeding on her behalf in order to delay the scheduled foreclosure. ³²¹ At their initial meeting, Ms. Payton entered into an agreement to pay respondent a total flat fee of $1,500 — $800 for filing of a new bankruptcy proceeding, $200 for filing fees for the second Chapter 13 bankruptcy action, and $500 for respondent’s efforts to obtain a discharge under a pending Chapter 13 bankruptcy proceeding. Ms. Payton paid an initial $700 to respondent and agreed to pay the remaining balance over time. In November, 2003, Ms. Payton received a letter from the bankruptcy trustee informing her that she could not be discharged under the pending Chapter 13 proceeding because respondent had filed a late claim with respect to unpaid Baltimore City real property taxes.

Ms. Payton consented to an increase in the base amount in the bankruptcy plan, which apparently resulted in her obtaining a discharge. Respondent failed to file a second bankrupt proceeding on behalf of Ms. Payton. Following numerous attempts to reach respondent over a period of a couple of months, Ms. Payton finally spoke with respondent and advised him that she was “unhappy with the services he provided” and requested a partial refund of the fees she had paid him. Respondent eventually refunded $200 to Ms. Payton which represented the amount collected to pay the court costs associated with the second bankruptcy petition.

It was only after Ms. Payton retained a new counsel was Ms. Payton successful in keeping her home. On June 18, 2004, Ms. Payton filed a complaint with Bar Counsel that respondent failed to provide services agreed upon in their fee agreement. Like the other cases herein, respondent failed to respond to Bar Counsel’s inquiries until after a second request was sent to him. He then failed to respond to further inquiries from Bar Counsel seeking additional information.

In the Petition for Disciplinary Action, Bar Counsel alleged that respondent had violated MLRPC 1.3, 1.5, 1.16 and 8.1. The hearing judge concluded that respondent had violated only MLRPC 1.4 — which was not alleged in Bar Counsel’s petition, by failing to respond to approximately ten attempts ³²² by Ms. Payton to reach him. Bar Counsel took exception to the hearing judge’s conclusion since the charge was not included in the original petition. We sustain Bar Counsel’s exception as to Rule 1.4 and hold that the hearing judge erred in finding a violation.

Similarly, we sustain Bar Counsel’s exceptions to the hearing judge’s failure to find a violation of MLRPC 1.3 and 8.1. Respondent violated Rule 1.3 by failing to act diligently in representing Ms. Payton in her bankruptcy action and Rule 8.1 by failing to respond to Bar Counsel’s inquiries. We will, however, overrule Bar Counsel’s exceptions as to MLRPC 1.5 and 1.16. E. Complaint of Kennedy Huddleston Mr. Huddleston retained respondent to handle a foreclosure matter.

Mr. Huddleston’s wife, Sonia, died intestate on May 29, 2002. The house that they both resided in was in his wife’s sole name at the time of her death. Mr. Huddleston failed to open an estate for his wife and continued to make monthly payments to the mortgagor, Central Mortgage Company. Nine months after his wife’s death, Mr. Huddleston informed the mortgage company of his wife’s death but continued to make monthly payments.

At some point, the mortgage company began to return Mr. Huddleston’s checks and commenced foreclosure proceedings, which resulted in the property being sold on March 8,2004. With the sale of the house not ratified as of March 31, 2004, Mr. Huddleston met with and retained respondent to represent him in reclaiming the house. Mr. Huddleston provided respondent with the requisite paperwork to respond to the mortgagor’s notice of foreclosure. After Huddleston paid respondent a total fee of $1,000, respondent filed an exception to the sale of the house.

On May 3, 2004, the substitute trustee answered the exception and on June 17, 2004, the Court overruled the exception by an Amended Order. Mr. Huddleston tried to reach respondent on several occasions but was told that he was either busy or in court. Respondent also failed to refund any portion of the fee that was paid by Mr. Huddleston. On August 5, 2004, Mr. Huddleston filed a ³²³ complaint with the AGC.

Bar Counsel tried