Attorney Grievance Commission v. Thomas

WATTS, J. This attorney discipline proceeding involves a lawyer who abandoned his representation of clients in two unrelated cases and dishonestly refrained from informing Bar Counsel that he had violated a conditional diversion agreement. 1 ³⁸⁴ Charles Trent Thomas (“Thomas”), Respondent, a member of the Bar of Maryland, agreed to represent Zakary Lee (“Lee”) in a criminal case, and agreed to represent Wanda Sue Sines (“Sines”) in a separation and divorce matter and in a guardianship matter. Thomas abandoned his representation of both Lee and Sines; Thomas failed to attend a hearing in Lee’s criminal case, never filed a complaint for divorce on Sines’s behalf, and did not call any witnesses at the hearing in Sines’s guardianship matter. Lee’s mother and Sines filed complaints against Thomas with the Attorney Grievance Commission (“the Commission”), Petitioner. On February 11, 2015, on the Commission’s behalf, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” against Thomas, charging him with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 1.5(a) (Unreasonable Fees), 1.16 (Declining or Terminating Representation), 8.1 (Bar Admission and Disciplinary Matters), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice).

On February 12, 2015, this Court designated the Honorable Daniel P. Dwyer (“the hearing judge”) of the Circuit Court for Washington County to hear this attorney discipline proceeding. On April 8, 2015, on the Commission’s behalf, Bar Counsel filed in the Circuit Court for Allegany County a “Complaint for Temporary Restraining Order [and] Preliminary and Permanent Inju[n]ctive Relief’ (“the Complaint”) in which Bar Counsel sought, among other relief, a temporary restraining order and a preliminary injunction 2 that would prohibit Thorn- ³⁸⁵ as from practicing law under Maryland Rule 16-776(a) (Injunction to Prevent Serious Harm). 3 On April 10, 2015, the Complaint was transferred to the hearing judge. On April 17, 2015, with Thomas in attendance, the hearing judge conducted a hearing on the Complaint. On that date, with Thomas’s consent, the hearing judge issued a temporary restraining order that prohibited Thomas from practicing law until April 80, 2015.

On April 30, 2015, the hearing judge conducted a hearing on the propriety of a preliminary injunction; Thomas failed to attend. On that date, the hearing judge issued a preliminary injunction that prohibited Thomas from practicing law. On June 30, 2015, the hearing judge conducted an evidentiary hearing in this attorney discipline proceeding; Thomas failed to attend. On August 31, 2015, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Thomas had violated MLRPC 1.1, 1.3,1.4,1.5(a), 1.16(d), 8.1(b), 8.4(c), and 8.4(d).

On November 10, 2015, we heard oral argument 4 and disbarred Thomas. See Attorney Grievance Comm’n v. Thomas, 445 Md. 117 , 125 A.3d 360 (Md.2015) (per curiam). We now explain the reasons for Thomas’s disbarment. ³⁸⁶ BACKGROUND The hearing judge found the following facts, which we summarize. On or about June 21, 2000, this Court admitted Thomas to the Bar of Maryland.

At all relevant times, Thomas was a solo practitioner in Allegany County. Thomas’s Representation of Lee In or about October or November 2013, Lee was injured during an altercation with Kameron Kamp (“Kamp”). Lee’s injuries included a broken jaw, and necessitated that Lee have his jaw wired shut and have his arm placed in a sling. Lee and his family incurred medical expenses as a result of his injuries.

Lee pressed criminal charges of assault against Kamp, and Kamp pressed criminal charges of assault against Lee. On or about January 6, 2014, Lee’s mother, Renée Walker (“Walker”), retained Thomas to represent Lee in the defense of the criminal charge against him. Thomas charged a flat fee of $750, which was paid in full. Thomas told Walker also that it would be possible for Lee to sue Kamp in an attempt to obtain compensation for Lee’s medical expenses.

Walker provided Thomas with a list of people who could testify on Lee’s behalf. Thomas failed to interview or subpoena any of the people. A hearing in Lee’s criminal case was scheduled for March 4, 2014. On the night of March 3, 2014, Walker telephoned Thomas.

This was the first time that Lee or Walker had communicated with Thomas since January 2014. Thomas told Walker that he could not attend the hearing for personal reasons. Thomas failed either to offer to find another lawyer who could attend the hearing or raise the possibility of requesting a postponement. On March 4, 2014, without Thomas, Lee and Walker attended the hearing, at which they learned that the State planned to dismiss the charges against both Lee and Kamp.

Lee and Walker never heard from Thomas again, ³⁸⁷ despite Walker’s attempts to discuss a possible civil action against Kamp and/or a refund of Thomas’s fee. 5 Thomas’s Representation of Sines In November 2010, Sines separated from her then-husband. Sines retained Thomas to represent her for purposes of her separation and to obtain a divorce when she had been separated for one year. Thomas charged Sines a flat fee, which Sines paid in full. Thomas drafted a separation agreement, gave it to Sines, and told Sines to give it to her then-husband. 6 Thomas also made inquiries on Sines’s behalf regarding title to some Holstein cattle. 7 These were the only two services that Thomas ever performed as to Sines’s divorce matter; Thomas never filed a complaint for divorce on Sines’s behalf.

In or about July 2011, Sines learned that her then-husband may have molested her daughter, a vulnerable adult with a disability. Sines retained Thomas to represent her for purposes of becoming her daughter’s guardian. Thomas charged Sines a fee of approximately $1,000, which Sines paid in full. Two doctors evaluated Sines’s daughter and provided the two medicaVpsychiatric opinions that were necessary for the appointment of a guardian of the person of a disabled person ³⁸⁸ under Maryland Rule 10-202(a). 8 Thomas needed to file a petition for guardianship of the person of a disabled person within twenty-one days of the latest dated doctors’ evaluations.

See Md. R. 10-202(a) (“An examination or evaluation by at least one of the health care professionals under this subsection shall occur within 21 days before the filing of the petition [for guardianship of the person of a disabled person].”). Thomas failed to file a petition for guardianship of the person of a disabled person within the required twenty-one-day window, thus forcing Sines and her daughter to experience the expense and inconvenience of having Sines’s daughter evaluated again. Sines provided Thomas with the names of several people, including Sines’s daughter’s pediatrician, who would have testified in support of Sines becoming her daughter’s guardian. However, Thomas failed to interview any of the people; and, at the guardianship hearing, Thomas failed to call any witnesses.

The trial court did not appoint Sines as her daughter’s guardian. In January 2012, Sines texted Thomas to ask about the delay in proceeding with her divorce matter. Thomas informed Sines that he was busy. In March 2012, on several occasions, Sines unsuccessfully attempted to arrange an appointment with Thomas.

On March 26, 2012, Thomas emailed Sines to tell her to review a complaint for divorce that was attached to the e-mail. Sines was unable to download and view the complaint for divorce. On March 28, 2012, Sines emailed Thomas to tell him to mail her a paper copy of the complaint for divorce. Despite sending messages to Thomas in April, May, and June 2012, Sines never heard from Thomas again.

In June 2012, Sines filed a complaint against Thomas ³⁸⁹ with the Commission. Afterward, Thomas refunded “the prepaid fees” that he had charged Sines. 9 The Conditional Diversion Agreement On or about March 20, 2013, Thomas and Bar Counsel entered into a “Conditional Diversion Agreement” that partially arose out of Sines’s complaint to the Commission. In the Conditional Diversion Agreement, which the hearing judge admitted into evidence, Thomas agreed to the following conditions, among others: [Thomas] will abstain from all use of alcohol and/or opiates[.] During the pendency of the [Conditional Diversion] Agreement, [Thomas] will attend Alcoholics Anonymous meetings at least once per week and provide Bar Counsel with proof of his attendance^] Within thirty [ ] days of the date of th[e Conditional Diversion] Agreement, [Thomas] will arrange for counseling through the Alleg[ ]any County Health Department. [Thomas] will ... waive confidentiality to the extent necessary for Bar Counsel to confirm that [Thomas] is receiving counseling for his substance abuse problems and that [Thomas] is abstaining from the use of alcohol and/or opiates[.] If, during the duration of th[e Conditional Diversion] Agreement, [Thomas] resumes the use of alcohol or opiates, [Thomas] will immediately voluntarily cease practicing law, notify all active clients, return files and unearned fees[,] and withdraw his appearance in any and all [c]ourt proceedings. (Paragraph breaks omitted). 10 On or about May 15, 2013, the Commission approved the Conditional Diversion Agreement.

On or about July 25, 2013, in accordance with the Conditional Diversion Agreement, Thomas enrolled in an “Outpatient Ad ³⁹⁰ dictions Program” that was conducted by the Allegany County Health Department. On or about February 24, 2014, Thomas successfully completed an “Intensive Outpatient Program” and advanced to another program that required attending counseling sessions once per week. Between February 24, 2014 and July 2, 2014, however, Thomas attended only seven counseling sessions. As a result, on or about July 2, 2014, 11 Thomas was discharged from the program.

On or about August 26, 2014, Thomas again sought treatment. The Allegany County Health Department allowed Thomas to enroll in the program from which he had been discharged, provided that Thomas took a urinalysis test on that day. Thomas failed to take the urinalysis test, and was not re-enrolled in the program. On August 28, 2014, Thomas consulted with a counselor and was again enrolled in the Intensive Outpatient Program, which now required attending counseling sessions three times per week.

Thomas again failed to attend the required number of counseling sessions. As a result, Thomas was discharged yet again from the Intensive Outpatient Program. Thomas refrained from informing Bar Counsel of his two discharges, and also refrained from informing Bar Counsel that he was using alcohol and/or opiates. The hearing judge specifically found that Thomas’s “failure to keep Bar Counsel informed was[ ] an attempt to continue practicing law and avoid the consequences of failing to attend the [counseling] programfs] and maintain his sobriety.” On September 16, 2014, Thomas’s former counselor informed Bar Counsel that Thomas had been discharged from the Intensive Outpatient Program.

As a result, on or about December 17, 2014, the Commission revoked the Conditional Diversion Agreement. ³⁹¹ STANDARD OF REVIEW Neither party excepts to any of the hearing judge’s findings of fact; thus, we “treat the findings of fact as established!;.]” Md. R. 16—759(b)(2)(A). In an attorney discipline proceeding, this Court reviews without deference a hearing judge’s conclusions of law. See Md. R. 16-759(b)(l) (“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC.

See Md. R. 16-757(b) (“The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.”). DISCUSSION (A) Conclusions of Law Neither party excepts to the hearing judge’s conclusions of law, all of which we uphold. MLRPC 1.1 (Competence) and 1.3 (Diligence) “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” MLRPC 1.1. “A lawyer shall act with reasonable diligence and promptness in representing a client.” MLRPC 1.8.

Here, clear and convincing evidence supports the hearing judge’s conclusion that Thomas violated MLRPC 1.1 and 1.3 in representing Lee. Walker provided Thomas with a list of people who could testify on Lee’s behalf in his criminal case. Thomas failed to interview or subpoena any of the people. Thomas also failed to attend the hearing in Lee’s criminal case, offer to find another lawyer who could attend the hearing, or raise the possibility of requesting a postponement.

The circumstance that the State dismissed the charges against Lee did not reheve Thomas of his duty to prepare for and attend the scheduled hearing in Lee’s criminal case. Thomas ³⁹² also failed to pursue a civil lawsuit on Lee’s behalf in an attempt to obtain compensation for Lee’s medical expenses. Clear and convincing evidence also supports the hearing judge’s conclusion that Thomas violated MLRPC 1.1 and 1.3 in representing Sines. Despite being retained to obtain a divorce for Sines, Thomas never filed a complaint for divorce on Sines’s behalf.

Additionally, in Sines’s guardianship matter, Thomas failed to timely file a petition for guardianship of the person of a disabled person. Furthermore, Sines provided Thomas with the names of several people, including Sines’s daughter’s pediatrician, who would have testified in support of Sines becoming her daughter’s guardian. Thomas failed to interview any of the people; at the guardianship hearing, Thomas failed to call any witnesses; and the trial court did not appoint Sines as her daughter’s guardian. MLRPC 1.4(a)(2) and 1.4(a)(3) (Communication) “A lawyer shall: ...

(2) keep the client reasonably informed about the status of the matter; [and] (3) promptly comply with reasonable requests for information[.]” MLRPC 1.4(a). Here, clear and convincing evidence supports the hearing judge’s conclusion that Thomas violated MLRPC 1.4(a)(2) and 1.4(a)(3) 12 in representing Lee. Thomas failed to contact Lee or Walker between January 2014 (the month in which Walker retained Thomas on Lee’s behalf) and March 3, 2014 (when Walker telephoned Thomas the night before the hearing in Lee’s criminal case). After March 3, 2014, Lee and Walker never heard from Thomas again, despite Walker’s attempts to discuss a possible civil action against Kamp and/or a refund of Thomas’s fee. ³⁹³ Clear and convincing evidence also supports the hearing judge’s conclusion that Thomas violated MLRPC 1.4(a)(2) and 1.4(a)(3) in representing Sines.

In March 2012, on several occasions, Sines unsuccessfully attempted to arrange an appointment with Thomas. On March 26, 2012, Thomas emailed Sines to tell her to review a complaint for divorce that was attached to the e-mail. Sines was unable to download and view the complaint for divorce. On March 28, 2012, Sines emailed Thomas to tell him to mail a paper copy of the complaint for divorce.

Despite sending messages to Thomas in April, May, and June 2012, Sines never heard from Thomas again. MLRPC 1.5(a) (Unreasonable Fees) “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.” MLRPC 1.5(a). “Although a fee for certain services may not be unreasonable on its face, the fee is unreasonable if the lawyer fails to perform the services to any meaningful degree.” Attorney Grievance Comm’n v. Davy, 435 Md. 674, 701-02 , 80 A.3d 322, 338 (2013) (brackets, citation, and internal quotation marks omitted). Here, clear and convincing evidence supports the hearing judge’s conclusion that Thomas violated MLRPC 1.5(a) in representing Lee. Thomas charged a flat fee of $750 to represent Lee in his criminal case.

Thomas failed to interview potential witnesses, issue subpoenas, or attend the hearing in Lee’s criminal case. Thomas’s fee was unreasonable because he failed to perform any meaningful services for Lee. Clear and convincing evidence also supports the hearing judge’s conclusion that Thomas violated MLRPC 1.5(a) in representing Sines. Thomas charged Sines a flat fee that was approximately $1,500 to represent her for purposes of her separation and divorce.

Thomas never filed a complaint for divorce on Sines’s behalf. Thomas also charged Sines approximately $1,000 to represent her for purposes of becoming her daughter’s guardian. Thomas failed to timely file a petition for guardianship of the person of a disabled person, failed to ³⁹⁴ interview potential witnesses, and failed to call any witnesses at the guardianship hearing. Although he ultimately refunded part of his fees, both of Thomas’s fees were unreasonable because he failed to perform any meaningful services for Sines.

MLRPC 1.16(d) (Terminating Representation) “Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client ... and refunding any advance payment of fee ... that has not been earnedf.]” MLRPC 1.16(d). “Termination of representation” includes abandonment of representation. See Attorney Grievance Comm’n v. Kum, 440 Md. 372, 384 , 102 A.3d 777, 784 (2014) (“Where a lawyer abandons a client without notice through the failure to take meaningful steps in pursuit of the client’s interest, and fails to return unearned portion of a fee paid by the client, he or she violates MLRPC 1.16(d).” (Brackets, citation, and internal quotation marks omitted)). Here, clear and convincing evidence supports the hearing judge’s conclusion that Thomas violated MLRPC 1.16(d) in representing Lee and Sines. Thomas abandoned his representation of Lee and Sines by abruptly and continuously failing to communicate with them and perform services for them; thus, Thomas effectively terminated his representation of Lee and Sines.

Thomas never provided notice that he would be terminating his representation of Lee and Sines. Additionally, as discussed above, Thomas failed to earn the fees that he charged Lee and Sines and was paid; Thomas never provided Lee with a refund; and Thomas did not provide Sines with a refund until after she filed a complaint against him with the Commission. MLRPC 8.1(b) (Disciplinary Matters) and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation) “[A] lawyer ... in connection with a disciplinary matter, shall not ... fail to disclose a fact [that is] necessary to ³⁹⁵ correct a misapprehension [that is] known by the [lawyer] to have arisen in the matter[.]” MLRPC 8.1(b). “It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit[,] or misrepresentation[.]” MLRPC 8.4(c). Here, clear and convincing evidence supports the hearing judge’s conclusions that Thomas violated MLRPC 8.1(b) and 8.4(c).

In the Conditional Diversion Agreement, Thomas agreed