Attorney Grievance Commission v. Ugwuonye

HARRELL, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Ephraim Ugwuonye (“Respondent”) charging him with violations arising out of his representation of two former clients. The first set of alleged violations arise from his representation of Hassan AbdulRahim, Jr. in an employment discrimination matter. In that instance, Petitioner charged Respondent with violation of Maryland Rules of Professional Conduct (MRPC) 1.1 (Competence), 1 1.3 (Diligence), 2 1.4 (Communication), 3 1.16(d) (Declin ³⁵⁶ ing or Terminating Representation), 4 and 8.4(d) (Misconduct). 5 In the second case, Respondent was charged with violating MRPC 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 6 1.3 (Diligence), 1.4 (Communication),. 1.5 (Fees), 7 1.15 (Safekeep ³⁵⁸ ing Property), 8 1.16(d) (Declining or Terminating Representation), and 8.4(d) (Misconduct), as well as Maryland Rule 16-604 9 and Maryland Code, § 10-304 of the Business Occupa ³⁵⁹ tions and Professions Article, 10 in the course of accepting as a client and representing Michael Etheridge regarding a claim for monetary damages against Montgomery County Crime Solvers, or possibly others, for supposed information-sharing of an unusual nature (to be explained later in this opinion). We referred the matter to the Honorable Michael J. Algeo of the Circuit Court for Montgomery County to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law regarding the alleged violations.

The hearing occurred before Judge Algeo on 10, 11, and 31 January 2008. On 14 March 2008, he issued his Finding of Facts and Conclusions of Law. Findings of Fact Complaint of Hassan Abdul-Rahim, Jr. Hassan Abdul-Rahim, Jr. originally retained Respondent 11 in December of 2004 to represent him in the recovery of damages for injuries he claimed to have suffered in November of 2004, while working for United Parcel Service (UPS). In ³⁶⁰ February 2005, while on a hiatus from his work at UPS because of the November 2004 injuries, Rahim grew a beard.

When Rahim returned to work at UPS, his supervisor asked him to shave off the beard. He refused, purportedly for religious reasons. Rahim alleged that the work environment became hostile towards him thereafter, pointing to a subsequent change by his employer in his working hours, which, he claimed, constituted religious discrimination. Rahim filed an employment discrimination complaint with the U.S. Equal Employment Opportunity Commission (“EEOC”).

On 26 August 2005, the EEOC issued a right to sue letter. Rahim gave this letter to Respondent and requested that Respondent file suit on his behalf. According to the findings of fact rendered by Judge Algeo: Respondent instructed his associate, Raymond Jones, Esquire, to prepare the suit. [Rahim] was advised of the status of his case as he spoke with Mr. Jones by telephone on several occasions and he exchanged information with Mr. Jones. [Rahim] spoke with Mr. Jones more than anyone else in the office. Mr. Jones left several messages for the Respondent regarding conversations with [Rahim].

Jones prepared the suit and filed it with the U.S. District Court for the District of Maryland, Southern Division, on 28 November 2005. With regard to this suit, Judge Algeo noted: Respondent contends that [Rahim] understood that he would take no further action in his case after filing the suit. Respondent further contends that he communicated this limitation in a letter to [Rahim] dated November 28, 2005. [Rahim] contends that Respondent was to serve as his counsel throughout the case, and that he never received a letter from the Respondent communicating anything differently. The suit was filed with a signature line for Respondent only.

The court issued a summons for UPS on November 30, 2005. The summons stated that the answer to the complaint should be served on Respondent as [Rahim’s] attorney. On April 10, 2006, Ella S. Peterson, courtroom ³⁶¹ deputy for the Honorable Peter J. Messitte, sent Respondent a notice stating that he should either file proof of service in the law suit or request an extension of time in which to achieve service. The notice directed Respondent to respond to the inquiry on or before April 24, 2006.

Respondent took no action in response to the notice. On April 25, 2006, Complainant’s case was dismissed without prejudice by Judge Peter J. Messitte as a result of the failure to serve the defendant. Although the case was dismissed without prejudice, the effect of the dismissal was to forever bar [Rahim] from bringing this suit again because pursuant to 42 U.S.C. § 2000e-5(f)(l) and 42 U.S.C. § 12117 , such suits must be filed within ninety days of the issuance of a right to sue letter. On or about 16 May 2006, Rahim and his wife visited Respondent at his office.

On the same day, after their meeting, Respondent sent Rahim an e-mail: Dear Hassan: Following up on our meeting today, I shall communicate with you again on May 23, 2006 to give you further update on the two cases we have for you. If you do not hear from me on that date, please call my office immediately. Thanks a lot. EU After receiving no communication from Respondent as promised, Rahim sent him the following e-mail on 26 May 2006: Ephrium [sic], today is Friday may 26, 2006.

I have not received the info about my case you promised. This is about the 13th time you told me you would contact me with any info on my case. The only info i have is “my case was dismissed without prejudice” which I received on my own inquire to the court. I flew to Maryland three times to speak to you without you without receiving any info.

Only to receive Empty promises from you to contact me and forward me info pertaining to my case. You wonder why would Hassan have suspicions. I have called your office ³⁶² three times since may 23 and you cell phone once with no response from you. -Hassan Abdul Rahim, Jr. On 30 May 2006, Rahim sent Ugwuonye another e-mail: Dear Ephriam Today is Tuesday, May 30, 2006, I still have not received any word from you or your assistants about the status of my case. This is a very stressful situation!

I do realize cases like this take time but the courts are reporting my case as being dismissed without prejudice which proves that when you tell me everything is OK and your working on my case its not true! it is the same as when you promised me a phone call or report of the status of my case you are lying to me! Every time i call your office i am told that you are in Africa on a case or working with an important client! So i guess i am not a client worth the respect i deserve. I was promised to receive some info on may 23 2006 by you about my case once again i waited patiently and received nothing.

Ive called your office four times since then and was told you were not avail and leave a message, no response to this day. What is a man to do? Any Advice? Hassan Abdul-Rahim, Jr. Following Rahim’s failed e-mail attempts to elicit a response from Respondent, Rahim sent a letter on 8 June 2006 terminating Respondent’s services and asked him to have the client file ready for pick-up on 23 June 2006.

On 20 June 2006, Respondent sent a letter to Rahim conveying an offer for $5,600.00 from Liberty Mutual Insurance, on behalf of UPS, for settlement of his claim. Two days later, on 22 June 2006, Rahim sent a reply to Respondent commanding that he cease and desist all actions on his behalf. This letter stated that Rahim previously was notified of, and rejected, the settlement offer from Liberty Mutual, and expressed doubt as to the authenticity of the current settlement offer. The doubt stemmed from Respondent’s continuing failure to communicate with Rahim and his general neglect of the case. ³⁶³ Complaint of Michael Etheridge On 14 November 2005, in the Circuit Court for Montgomery County, Michael Etheridge, in proper person, filed suit against Montgomery County Crime Solvers.

He alleged two bases for relief. First, Etheridge claimed that he was entitled to $500,000.00 as a reward for information that he provided concerning the Montgomery County Snipers. 12 Etheridge’s second basis for relief alleged that he possessed information as to the whereabouts of Saddam Hussein and had relayed to the Montgomery County Crime Solvers that he possessed such information. Because he was unsure whether Montgomery County Crime Solvers would pay him for the information regarding Hussein (based on its previous refusal to pay $500,000.00 for the information regarding the Snipers), he asked for $12,500,000.00 in advance of supplying the Hussein information and another $12,500,000.00 upon the arrest of Saddam Hussein. On 22 December 2005, Montgomery County Crime Solvers filed a motion to dismiss Etheridge’s complaint.

The motion was granted and an order to that effect was entered on 17 January 2006. Frustrated by his inability to advance his claims for reward, Etheridge sought legal advice and representation. Etheridge originally was referred by a pro bono agency to an experienced attorney, Marvin Perlis. Perlis declined to take the case and instead referred Etheridge to Respondent.

The record is silent as to whether Ugwuonye, a less experienced attorney, conferred with Perlis prior to accepting Etheridge as a client. According to the findings of Judge Algeo, Etheridge came to Respondent’s office on 10 February 2006 and signed a retainer agreement stating: ³⁶⁴ For his services to be rendered, I hereby agree to pay a non-refundable deposit of $8,500 being the minimum fee for attorney’s availability to represent me in this case, and the legal fees as follows: “33% or 1/3 of all recovery based on successfully at trial, or 45% if case is lost and client elects to pursue [sic] an appeal.” Further, Judge Algeo determined that: The agreement also provided that if Etheridge terminated Respondent’s services “prior to the settlement of my claim or prior to judgment in court, the contingency nature of this retainer shall cease to apply and my attorney shall compute its professional fees on the basis of $250 per hour for the attorney and $100 per hour for the paralegal.” At the time of the signing of the retainer, Etheridge gave Respondent a cashier’s check for $3,500. Respondent dispatched Leslie Riehm, his office manager at the time, to the Montgomery County Circuit Court directing her to obtain information on the case filed by Etheridge. In addition to retrieving documents from the court house, Ms. Riehm also testified that she assisted Respondent in identifying web sites and other relevant information for Respondent to review.

As part of the research, Respondent attempted to locate and identify other instances where people had provided information to programs where awards had been offered and whether Montgomery County Crime Solvers had been involved in paying any citizens for information received. After a preliminary review of Etheridge’s claims as advanced in his unsuccessful lawsuit, Respondent determined that there was little, if any, likelihood that the trial court’s judgment could be overturned. Nonetheless, Respondent accepted and deposited into his operating account, on either 10 or 11 June 2006, the $3,500.00 check given to him by Etheridge. Etheridge asked Respondent to look further into his claims.

Testimony revealed that there were telephone conversations between Respondent, Riehm, and Etheridge in which Respondent advised Etheridge that his claims against Montgomery County Crime Solvers were not viable and that Re ³⁶⁵ spondent intended to withdraw as Etheridge’s attorney. Respondent did not file an appeal from the Circuit Court’s judgment in Etheridge’s case or seek reconsideration. Respondent eventually concluded that Etheridge’s only recourse might be with regard to the capture of Saddam Hussein, 13 but Respondent took no action on Etheridge’s behalf in that regard either. In May 2006, Etheridge met with Respondent, at which time Respondent again indicated that there was little, if any, basis to support his claims.

Respondent made no refund to Etheridge of any part of the $3,500.00 retainer. On 8 June 2006, Etheridge filed a complaint against Ugwuonye with the Attorney Grievance Commission. Conclusions of Law Complaint of Hassan Abdul-Rahim, Jr. Based on the finding of facts with respect to the complaint of Hassan Abdul-Rahim, Jr., the hearing judge concluded that Respondent violated MRPC 1.1. During the early stages of the Respondent’s representation, Mr. Rahim maintained contact with Mr. Jones in the Respondent’s office, who kept him aware of the status of his discrimination case.

This contact continued at least until February 2006, when Mr. Jones left the Respondent’s office. The letter dated November 28, 2005, served to advise Mr. Rahim of the status of the case and his responsibilities as a litigant. Although Respondent claims that Mr. Rahim understood that he would no longer be representing him after filing the complaint, the Respondent never withdrew from the case and was counsel of record from the time the complaint was filed until the case was dismissed. Further, the Respondent acknowledged in a meeting with Mr. Rahim, months later in May of 2006, that he was handling two cases for Mr. Rahim, including the claim filed in November 2005. ³⁶⁶ In the months following the filing of the complaint, the Respondent received notices from the court requesting a response in order to avoid dismissal.

Respondent made no effort to respond to these notices or inform Complainant of his need to respond. Respondent’s inability to officially remove himself from the case, as well as, communicate correspondence from the Court to Mr. Rahim, displayed a lack of competence in his representation. For these reasons, the Court finds that the Respondent is in violation of Rule 1.1. The hearing judge also concluded that Respondent violated MRPC 1.3.

Although “Respondent was diligent in initially filing the complaint ... his failure to respond to subsequent notices from the court, and or communicate those notices to [Rahim], formed the basis for his violation.” The hearing judge concluded that MRPC 1.4 was violated because Respondent failed to comply with reasonable requests for information and displayed an overall lack of communication with his client. Lastly, the hearing judge concluded that MRPC 8.4(d) was violated by Respondent because Respondent’s failure to take any action in response to the notice of April 10, 2006 displays a lack of both competence and diligence. The notice advised the Respondent that Complainant’s case would be dismissed unless he provided proof of service or requested an extension of time on or before April 25, 2006. Respondent took no action in response to the notice and as a result his client’s case was dismissed.

Contrary to what Respondent may have tried to communicate to Mr. Rahim back in November of 2005, Respondent never moved to withdraw from the case and was counsel of record from the time the lawsuit was filed until it was dismissed. Complaint of Michael Etheridge The hearing judge concluded that the Respondent violated MRPC 1.1. Judge Algeo explained that “it [was] abundantly ³⁶⁷ clear that any competent counsel would have immediately declined to accept any such representation.” Thus, by agreeing to undertake a case that patently had no merit, Respondent violated MRPC 1.1. The hearing judge found that Respondent violated MRPC 1.3 because he owed Etheridge a duty to keep him informed about the developments in the representation and failed to do so.

Respondent, therefore, did not exercise diligence in his representation of Etheridge. Additionally, according to the hearing judge, a violation of MRPC 1.4 occurred because Respondent displayed an “overall lack of communication by way of avoiding Mr. Etheridge with empty promises of prompt communications.... ” As to MRPC 1.5, the hearing judge confirmed a violation because: (a) Respondent should have declined the case at the outset, and (b) the fee collected was unreasonable. As to MRPC 1.15, a violation occurred because Respondent deposited the unearned fee into an operating, instead of an escrow, account. Judge Algeo concluded that Respondent was in violation of MRPC 1.16(d) because he failed to return the unearned fee upon termination of the representation.

The judge concluded that “the service provided by the Respondent did not come close to warranting a fee in the amount of $3,500.” Lastly, the hearing judge concluded that Respondent was in violation of MRPC 8.4(d). Given the totality of Ugwuonye’s actions; i.e., taking a meritless case, charging a fee that grossly outweighed the work accomplished, and the overall lack of communication with Etheridge, Judge Algeo concluded that Respondent was guilty of professional misconduct. 14 ³⁶⁸ Standard of Review “This Court has original and complete jurisdiction over attorney discipline proceedings” in Maryland. Attorney Grievance Comm’n v. Adams, 349 Md. 86, 93 , 706 A.2d 1080, 1083 (1998). Even though conducting an independent review of the record, we accept the hearing judge’s findings of fact unless they are found to be clearly erroneous.

Attorney Grievance Comm’n v. Zdravkovich, 375 Md. 110, 126 , 825 A.2d 418, 427 (2003). This Court gives deference to the hearing judge’s assessment of the credibility of witnesses. Id. Factual findings by the hearing judge will not be interfered with if they are founded on clear and convincing evidence.

Attorney Grievance Comm’n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002). All proposed conclusions of law made by the hearing judge, however, are subject to de novo review by this Court. Attorney Grievance Comm’n v. O’Toole, 379 Md. 595, 604 , 843 A.2d 50, 55 (2004). Exceptions Respondent filed somewhat general written exceptions to the findings and conclusions expressed by the hearing judge with regard to his representation of Rahim.

His exceptions regarding Etheridge’s complaint are a bit more fulsome. With regard to Rahim, Respondent takes general issue with the findings articulated by Judge Algeo. The entirety of his exceptions notes that he takes issue with the findings and conclusions articulated by the trial court and in particular the finding to the violations of the Maryland Rules of Professional Conduct outlined in the Court’s Conclusions of Law except to failing to appraise Complainant of the April 10, 2006 notice. Respondent submits that the Court’s findings are unsupported by the facts of the case.

As such, they are respectfully erroneous. ³⁶⁹ Respondent presents no argument in support of these general exceptions. “Failure to present argument in support of an exception is a sufficient basis on which to overrule the exception or, at least, not consider it.” Attorney Grievance Comm’n v. Barneys, 370 Md. 566, 577 , 805 A.2d 1040, 1046 (2002). Furthermore, we find that Judge Algeo’s findings of fact and conclusions of law, with respect to the Rahim complaint, are supported amply by clear and convincing evidence in the record. Accordingly, we overrule these “exceptions.” With regard to the Etheridge matter, Respondent excepts to the findings and conclusions of the hearing judge relative to the violation of MRPC 1.1, contending that he was not in violation when he agreed to undertake representation of Etheridge regarding his claims against the Montgomery County Crime Solvers. Respondent contends that, although the account of the factual bases provided by Etheridge for his claims were both “fantastic” and “bizarre,” there was no independent basis for automatically dismissing the claims and declining the representation.

Respondent also takes exception to the findings and conclusions of the hearing judge relative to the violation of MRPC 1.15, 1.5, and 1.16(d). Respondent contends that he expended over twenty hours investigating Etheridge’s claims and that application of his hourly billing rate alone exceeded the $3,500.00 retainer. Thus, Ugwuonye contends that he rightfully utilized and deposited the retainer into his operating account and that Etheridge was not due any refund. Review of Conclusions of Law We first examine Respondent’s challenge to the asserted violation of MRPC 1.1 in Etheridge’s matter for failing to decline a case lacking any merit.

While admitting that Etheridge’s claims were peculiar and extraordinary, Respondent contends that he had no independent, initial bases for automatically dismissing them. Applying a unique spin, Ugwuonye notes that Etheridge was referred to him by a seasoned and experienced attorney, implying, we suppose, some imprimatur of threshold worthiness of the ease. He asserts ³⁷⁰ further that Etheridge appeared to be a sane and competent adult, was meaningfully employed, and recounted basic facts about the capture of the snipers and circumstances surrounding the whereabouts and capture of Saddam Hussein. Additionally, Respondent argues that attorneys cannot be charged with a “clairvoyant” and “instantaneous” ability to provide a thorough analysis and assessment of a new case prior to a reasonable opportunity to investigate.

We overrule this exception. In Attorney Grievance Comm’n v. James, 385 Md. 637, 662, 650 , 870 A.2d 229, 244, 237 (2005), this Court held that the respondent had violated MRPC 1.1, in part, by representing a client in a tort action for damages against his wife’s adulterer for the adulterous relationship he carried on with her. We observed that “even with cursory research [the respondent] would have found that tort damages are not allowed based upon adultery.” Id. at 662 , 870 A.2d at 244 . Thus, the respondent failed to provide competent