Attorney Grievance Commission v. Walker-Turner

HARRELL, Judge. The Attorney Grievance Commission (Petitioner), acting through Bar Counsel, filed a petition "with this Court on 25 January 2002 for disciplinary action against John W. Walker-Turner, Sr., Respondent, alleging, among other things, a violation of Maryland Rule of Professional Conduct (“MRPC”) 5.5(a) (Unauthorized Practice of Law). 1 We referred the ⁸⁷ matter to Judge Julia B.Weatherly of the Circuit Court for Prince George’s County to conduct an evidentiary hearing and make resultant findings of fact and proposed conclusions of law. Following that evidentiary hearing, Judge Weatherly concluded that Respondent violated Rule 5.5(a). I. Judge Weatherly, on 15 August 2002, entered the following Findings of Fact and Conclusions of Law: Petitioner, the Attorney Grievance Commission of Maryland, filed a Petition for Disciplinary Action charging the violation of Maryland Rules of Professional Conduct 1.1, 1.3, 1.4(a)(b), 1.15(a)(b), 1.16(d), and 5.5(a).

However, at the hearing the Petitioner elected to go forward only on the violation of 5.5(a), (Unauthorized Practice of Law), dismissing the other allegations. The Court of Appeals of Maryland, in its Order of January 29, 2002, directed that this matter be heard pursuant to Maryland Rule 16-752(a), by this Court and determined in accordance with Maryland Rule 16-757. The Petition was duly served on the Respondent, who through counsel, filed an Answer to the Petition. Under Rule 16-757(b), the Petitioner, the Attorney Grievance Commission of Maryland, has the burden of proving the averments of the Petition by clear and convincing evidence.

A Respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence. An investigation of this matter by the Attorney Grievance Commission of Maryland occurred based upon a complaint by Barbara Greenfield. She retained Respondent, John Wayne Walker-Turner, Sr., on April 10, 2001, regarding an employment dispute. The Complainant was employed by the District of Columbia Department of Corrections as a staff clerk and had been suspended for forty-five (45) days, a suspension she desired corrected when she consulted with the Respondent. ⁸⁸ The Petitioner’s case consisted of the introduction into evidence of Interrogatories propounded to the Respondent and his Answers, a series of Requests for Admissions of Facts and Genuineness of Documents and Respondent’s Answer, the deposition of the Respondent, the District of Columbia rule on the unauthorized practice of law, and the client file maintained by the Respondent in his representation of Ms. Greenfield.

The Petitioner' also called Respondent as its witness. The Court finds and concludes as follows: Mr. John Wayne Walker-Turner, Sr. was admitted to the Bar of Maryland on December 16, 1999. Mr. Walker-Turner has never been admitted as a member of the bar of the District of Columbia. After he was admitted in Maryland, Mr. Jonathan Ai, Esquire of Rockville, Maryland provided him office space for approximately six months while he began his legal practice.

Then he worked out of Mr. Henry Smith’s law office in the District of Columbia for six or seven months. While Mr. Smith did not pay him a salary, Mr. Walker-Turner in his deposition (Plaintiffs exhibit no. 3, page 8) stated Mr. Smith paid him on a case by case basis. He then shared an office with Mr. Rubin Collins, Esquire in the District of Columbia. Mr. Rubin Collins, Mr. William Johnson, and Mr. Walker-Turner operated as a partnership, the three attorneys dividing expenses.

They periodically split fees if more than one attorney worked on a given case. Currently, Mr. Collins and Mr. Walker-Turner have an office at 605 Post Office Road, Waldorf, Maryland. Mr. Walker-Turner testified that he has maintained the following addresses for the purpose of practicing law since his admission to the Maryland bar: 103 N. Adams Street, Rockville, Maryland; 714 G Street, S.E., Washington, DC; 1449 Pennsylvania Avenue, S.E., Washington; and Kennedy Street, N.W., Washington, DC. He also' did legal work out of his home on Illinois Avenue in the District of Columbia, however, he did not see clients there.

Mr. Walker-Turner in his Answers to Interrogatories stated that all the num ⁸⁹ bers he used for his office phones and fax numbers had a District of Columbia zip code. On April 10, 2000, Mr. Walker-Turner signed an engagement fee to represent Ms. Greenfield. That engagement letter was entered into at Mr. Walker-Turner’s office at 714 G Street, S.E. Washington, DC. He thereafter sent two (2) letters on behalf of Ms. Greenfield to the Director of the Department of Corrections in the District of Columbia.

His letterhead gave a District of Columbia address, 714 G Street, S.E., Washington, DC, as well as a Rockville, Maryland address. Those documents were admitted to be genuine, Exhibits 2, 3, and 4 attached to the Request for Admissions. The stationery notes MD after his name, and DC after Mr. Collins’ name, designating the jurisdiction in which they were licensed to practice law. In Response to Bar Counsel’s Request, Mr. Walker-Turner responded to Bar Counsel on March 16, 2001.

His letterhead gave an address at 1449 Pennsylvania Avenue, S.E., Washington, DC, listing an office telephone number and a fax number with District of Columbia area code 202. (Request for Admissions of Facts and Genuineness of Documents exhibit no. 1). In answer to Interrogatory 25 propounded by the Petitioner, Mr. Walker-Turner could not recall how many clients, if any, he may have seen in the District of Columbia during the period he was in association with an attorney licensed in the District of Columbia. But in his testimony in court, he indicated it had been several.

He acknowledged that he practiced law in association with Mr. Collins and Mr. William Johnson, which held itself out as a partnership. Mr. Walker-Turner testified that when he was retained, he informed Ms. Greenfield that he could not represent her in the District of Columbia courts if litigation was necessary. He would have to have an attorney licensed in the District of Columbia handle the matter. He testified that whenever he entered his appearance in the D.C. Superior Court, his appearance would be moved Pro Hac Vice by a licensed D.C. attorney. ⁹⁰ Rule 49 (7)(iii) of the District of Columbia Court of Appeals provides that: No person who maintains or operates from an office or location for the practice of law within the District of Columbia may be admitted to practice before the Court of the District of Columbia Pro Hac Vice unless that person qualifies under another expressed exception under section c thereof.

There are no exceptions that apply to the Respondent. It appears that Mr. Walker-Turner did not understand that because his office was located in the District of Columbia, he was not eligible to be moved in pro hac vice. The evidence showed that the Respondent had met with clients, provided legal advice, wrote demand letters and engaged in negotiations on behalf of his clients operating from his office in the District of Columbia. According to his .testimony, the only restriction he perceived was that he could not appear in the District of Columbia courts without being moved in pro hac vice by local counsel.

Mr. Walker-Turner’s attorney argued that at the time in question all of his work was done under the supervision of an attorney licensed to practice in the District of Columbia. Rule 49(c)(8) provides for limited duration supervision of D.C. Bar Member: Practicing law from a principal office located in the District of Columbia, while an active member in good standing of the highest court of a state or territory, under the direct supervision of an enrolled, active member of the District of Columbia Bar, for a one period not to exceed 360 days from the commencement of such practice, during pendency of a person’s first application for admission to the District of Columbia Bar; provided that the practitioner has submitted the application of admission within ninety (90) days of commencing practice in the District of Colombia, that the District of Columbia Bar member takes responsibility for the quality of the work and complaints concerning the services, and gives notice to the ⁹¹ public of the member’s supervision and the practitioner’s bar status. Mr. Walker-Turner had never applied for admission to the District of Columbia Bar, so this provision does not apply to his circumstance. Rule 49(a) states “no person shall engage in the practice of law in the District of Columbia or in any matter hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia bar, except as otherwise permitted by these rules.” The Court has examined the rule and its exceptions and finds that none of the exceptions apply to the practice of law engaged in by the Respondent in the District of Columbia.

The Court finds by clear and convincing evidence that Respondent, John Wayne Walker-Turner, Sr., has violated Maryland Rule of Professional Conduct 5.5 by practicing law in the District of Columbia when he was not a member of that bar or authorized by any exceptions to do so.

II

Petitioner took no exception to Judge Weatherly’s Findings and Conclusions. As a sanction, Petitioner recommended that we suspend Respondent for 90 days. Respondent filed written exceptions with this Court. In his exceptions, he argues essentially that: (1) there was insufficient evidence to support Judge Weatherly’s determination that, Ms. Barbara Greenfield aside, “he had met with [other] clients, provided legal advice, wrote demand letters, and engaged in negotiations on the behalf of his clients operating from his office in the District of Columbia;” (2) even if there was sufficient evidence to support a finding that he represented clients other than Ms. Greenfield in the District of Columbia (D.C.) office, it was not a violation of the District’s prohibition regarding the unauthorized practice of law if those matters involved “Maryland cases and legal issues”; (3) as to Ms. Greenfield, his conduct did not violate D.C.’s unauthorized ⁹² practice of law prohibition because “he was under the supervision of a District of Columbia licensed attorney” at the time; and, (4) he did not hold himself out to clients as being authorized to practice law in D.C. Assuming this Court were to overrule his exceptions and not dismiss the complaint, Respondent offers a reprimand as the commensurate sanction for his misconduct.

III

Respondent’s exceptions to Judge Weatherly’s Findings and Conclusions that he met with, supplied legal advice to, wrote demand letters for, and engaged in negotiations on behalf of clients, other than Ms. Greenfield, in his various offices in the District of Columbia, are not relevant to . the outcome of this proceeding. Petitioner charged Respondent with a violation of MRPC 5.5(a) only as to Ms. Greenfield. Whether' the evidence adduced before Judge Weatherly adequately proved Respondent’s representation of other, unidentified clients is neither here nor there for our present purpose. 2 ⁹³ The defense that Respondent did not commit unauthorized practice of law as to clients, other than Ms. Greenfield, because their matters involved “Maryland cases and legal issues” is likewise of no relevance to this case. Even if it were relevant, Respondent failed to adduce sufficient evidence, measured by the preponderance standard, to justify, let alone compel, Judge Weatherly to so find.

The sole potentially relevant evidence available to be argued by Respondent regarding this defense is wholly inconclusive and unpersuasive. During Petitioner’s direct examination of Respondent before Judge Weatherly, the following exchange occurred: Q: Okay. Now, today do you have any estimate, other than Ms. Greenfield, of how many other clients conferred with you in any of the offices you had in the District of Columbia? A: If I was to give — I mean, approximately it’s been a few, Mr. Hirschman, 3 but I can’t tell you a number.

Q: Okay. And those few clients, regardless of the number, did they also pay you legal fees for some services? A: Some did and some didn’t. Q: Okay.

And did you have a written agreement, whether it’s called an engagement agreement or a retainer agreement, with them? A: Anyone that signed up with me, if they eventually decided to go with me, yeah, we had a retainer agreement. Q: Okay. And did those people, besides Mrs. Greenfield, have their legal problems in the District of Columbia?

A: No. Q: They were all in Maryland? ⁹⁴ A: I had a cowple of matters that were in D.C., but of course I had the pro hoc in on. Q: Well, the ones in D.C., you mean if they went into litigation you had to have your admission moved pro hoc vice? A: Explain that to me. What do you mean?

Q: Okay. You just said that you had to be pro hoc. A: Right, on a couple of cases. Q: Okay.

Well, does that mean somebody moved your admission so that you— A: Exactly, yes, sir. Q: And was that done? A: Yes, sir. Q: Are you sure?

A: Positive. Q: And do you have the names of those cases? A: The first case I believe I was ever admitted to pro hoc vice while working with Mr. Smith was a divorce matter in the — Brown versus Brown. (Emphasis added).

Respondent did not identify any further cases where he was admitted before a D.C. court pro hoc vice, nor did he elaborate on which or how many people he saw in D.C. regarding exclusively Maryland legal matters. No inference favorable to him may be drawn from his failure to answer directly Bar Counsel’s question in that latter regard. During cross-examination by his counsel, Respondent implied, but in a limited context, that he serviced another attorney’s Maryland clients from one of the D.C. offices: Q: Could you tell the judge briefly whether you were practicing law as an independent person using the office at 714 G Street or whether you were working with Mr. Henry Smith or for Mr. Henry Smith? A: Your Honor, very — I mean, my history with Mr. Smith is I’m not going to get into it wasn’t a good one, but for the ⁹⁵ most part Mr. Smith is the one who, when I first came out who basically allowed me to work with him and he would refer me cases.

And of course he was the one — you know, Maryland cases, and, you know, I did the work, he looked it over, I signed it and that was that. I don’t know if that answered your question. (Emphasis added). Finally, in a series of somewhat unresponsive answers during later cross-examination, Respondent stated: Q: Okay.

I believe in answer to Mr. Hirschman’s questions as well you said — you were asked a question about an address which is 1449 Pennsylvania Avenue. Who was— who originally leased that office? A: Henry Smith. Q: Okay.

Did you sign or were you invited to the signing of the lease at 1449 Pennsylvania Avenue, Southeast in Washington, D.C.? A: No. Q: Was it basically the same arrangement that you had with Mr. [Rubin] Collins for the office of 714 G Street that you had with— A: Yeah, I would do the Maryland work for Henry. (Emphasis added). It is apparent that the foregoing does not establish, by any recognized standard of proof, the proposition that Respondent argues, i.e., all of the non-litigation clients, whether his or another attorney’s, seen by him in the various D.C. offices involved only Maryland legal matters.

Respondent’s defense of his representation of Ms. Greenfield in a matter concededly involving a District of Columbia legal matter is that supervision by an attorney admitted in D.C. (be it Mr. Collins or Mr. Smith) fits within an exception to the D.C. prohibition on the unauthorized practice of law. On this record, we find this argument unpersuasive and wrong as a matter of law. Rule 49 of the District of ⁹⁶ Columbia Court of Appeals, effective 1 February 1998, provides, in pertinent part: 4 Rule 49.

Unauthorized Practice of Law (a) General Rule No person shall engage in the practice of law in the District of Columbia or in any manner hold out as authorized or competent to practice law in the District of Columbia unless enrolled as an active member of the District of Columbia Bar, except as otherwise permitted by these Rules. (b) Definitions The following definitions apply to the interpretation and application of this rule: * * * * * (2) “Practice of Law” means the provision of professional legal advice or services where there is a client relationship of trust or reliance. One is presumed to be practicing law when engaging in any of the following conduct on behalf of another. (B) Preparing or expressing legal opinions; * * * * * (D) Preparing any claims, demands or pleadings of any kind, or any written documents containing legal argument or interpretation