Attorney Grievance Commission v. Walker-Turner

HARRELL, J. The Attorney Grievance Commission of Maryland, acting through Bar Counsel (“Petitioner”), filed a petition for disciplinary or remedial action, pursuant to Maryland Rule 16-751(a)(1), 1 against John Wayne Walker-Turner (‘Walker-Turner”), a Maryland attorney with offices in Prince George’s County. Petitioner charged that Walker-Turner’s conduct representing clients Leslie’s Limousine’s Service (“Leslie”) and Leslie Anderson individually (“Anderson”), the owner of the business, violated the following Maryland Lawyers’ Rules of Professional Conduct (MLRPC): 1.1 (Competence); 2 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer); 3 1.3 (Diligence); 4 1.4(a) and (b) (Com ²¹⁹ munication); 5 and 8.4(a) and (d) (Misconduct). 6 Pursuant to Maryland Rules 16-752(a) and 16-757(e), we designated the Honorable Julia Weatherly of the Circuit Court for Prince George’s County to conduct an evidentiary hearing and file written findings of fact and conclusions of law in this matter. Judge Weatherly held such a hearing on 10 January 2012. Based on her assessment of the record (and according to the applicable standards of proof), she concluded that Walker-Turner violated MLRPC 1.1, 1.3, 1.4(a)(2) and (b), and 8.4(a) and (d).

Walker-Turner filed exceptions to Judge Weatherly’s findings and conclusions. For reasons we shall explain, we overrule Walker-Turner’s exceptions and direct that he be suspended from the practice of law for a period of 60 days. I. BACKGROUND A. Judge Weatherly’s Findings of Fact On 19 September 2006, Walker-Turner entered his appearance on behalf of Leslie and Anderson in the District Court of Maryland, sitting in Prince’s George’s County, in the civil ²²⁰ matter of Yellow Book Sales & Distribution Company T/A Yellow Book USA v. Leslie’s Limousine Service, Inc. Yellow Book was seeking contractual damages against Walker-Turner’s clients. The trial was set for 26 January 2007 at 8:45 a.m. in Upper Marlboro.

Walker-Turner negotiated (although not face-to-face) with Yellow Book’s attorney, Michael Botsaris, reaching in principle a settlement agreement the day before the scheduled trial. During the negotiation process, Walker-Turner was in communication with Anderson. The terms of the settlement agreement, in principle, provided that Anderson and Leslie would pay Yellow Book $6,500 in two installments: $2,100 due on or before 31 January 2007 and $4,400 due on or before 26 April 2007. If Anderson and Leslie did not make payments according to the terms of the agreement, Yellow Book would be entitled to a consent judgment for the full amount requested in the original Statement of Claim, which exceeded the settlement amount.

Botsaris, who apparently Walker-Turner had not met face-to-face previously, reduced the agreement to writing and faxed a signed copy to Walker-Turner’s office at 5:10 p.m. the night before the scheduled trial. In turn, Walker-Turner requested that Anderson come to his office and sign the written settlement agreement that evening and told him that he did not need to appear in court the next day if he signed the agreement. Anderson was not available that evening, but indicated that he would come to Walker-Turner’s office for that purpose before 8:00 a.m. the next day. At 8:30 a.m. on the day of the trial, Anderson had not arrived at the law office so Walker-Turner drove to the courthouse.

On his way to the courthouse, Walker-Turner attempted unsuccessfully to contact Anderson via cell phone and also looked for him in the District Court wing of the courthouse when he arrived. Walker-Turner looked in the courtroom where the case was scheduled to be tried, but found no judge on the bench. He did not check-in with the courtroom clerk, however, to determine where the Yellow Book case was on the docket or when it might be called. After leaving the courtroom, Walker-Turner called Anderson again on his cell phone ²²¹ from the courthouse hallway and reached him.

Anderson told Walker-Turner that he was at Walker-Turner’s law office, where he had executed the written agreement and left a check for the first payment of $2,200. 7 Walker-Turner encountered a person, later learned to be Botsaris, in the hallway outside the courtroom as Botsaris exited the courtroom. Walker-Turner inquired whether the Yellow Book case had been called yet. He did not introduce himself to Botsaris. Botsaris informed him that the case had been called and concluded.

Introductions took place and Walker-Turner informed Botsaris that Anderson had signed the settlement agreement. He asked Botsaris whether “everything was still in place,” to which Botsaris responded “Yes, just get me the documents.” Walker-Turner did not ask Botsaris, the District Court courtroom clerk or any other District Court clerical staff about the disposition of the case in the courtroom. Botsaris did not volunteer to Walker-Turner that when the Yellow Book case was called, he had requested and obtained a default affidavit judgment against Anderson and Leslie for $7,827.23, plus $2,694.28 in pre-judgment interest, $90.00 in costs, and $2,582.00 in attorneys fees. 8 Walker- ²²² Turner, unmindful of the judgment, returned to his office, counter-signed the written agreement, and claimed to mail it that day, along with Anderson’s check, to Botsaris. On 30 January 2007, the Clerk of the District Court mailed a copy of the Notice of Affidavit Judgment (consistent with the details that Botsaris neglected to tell Walker-Turner on 26 January) to Walker-Turner and Botsaris.

Walker-Turner told Judge Weatherly that he did not receive a copy of the notice and still did not know, as of that time, of the judgment entered against his client. On 7 March 2007, Anderson received a Request for Oral Examination (as to assets) in the Yellow Book case, filed by Botsaris, who was attempting to collect on the judgment. Anderson called Walker-Turner, who said he was surprised and would look into the matter. Walker-Turner contacted Botsaris by telephone later that day to find out why he was attempting to collect on a judgment, in light of the partially-consummated settlement.

After speaking with Walker-Turner, Botsaris agreed to authorize the filing of a Consent Motion to Vacate the Judgment. Botsaris testified that, prior to Walker-Turner’s phone call, he was not aware whether he had received the signed settlement agreement or check. The record reflects that the check was deposited by Botsaris’s law firm on 12 March 2007. Botsaris testified that the reason he was unable to confirm that the agreement and Anderson’s check had been received prior to Walker-Turner’s phone call ²²³ was because of the large volume of collection work conducted by his law firm.

Meanwhile, on 8 March 2007, Walker-Turner filed in the Yellow Book case a Consent Motion to Vacate the Judgment, stating as the sole ground for relief sought that a settlement agreement was reached between the parties. 9 The motion was denied by a simple order on 12 March 2007. The District Court mailed copies of the order denying the motion to Walker-Turner and Botsaris. Walker-Turner testified before Judge Weatherly that he did not receive the copy of the order denying the motion to vacate that was mailed to him. 10 On 26 April 2007, Walker-Turner mailed to Botsaris Anderson’s second and final payment under the settlement agreement, with a letter requesting that Botsaris send a letter to credit bureaus stating that the debt to Yellow Book was paid. Walker-Turner later mailed separately to Botsaris, for his review, a Motion for Reconsideration of the previously denied Motion to Vacate Default Judgment.

This motion asked also that the case be entered as settled as of 21 May 2007. The reconsideration motion, for the first time in that case, included a detailed explanation for Anderson’s failure to appear for the 26 January 2007 trial and a statement that Anderson was hindered by the judgment against him. Upon receipt of the draft motion, Botsaris entered a notation to dismiss the scheduled oral examination of Anderson and also filed a Line of Satisfaction in the District Court. Walker-Turner testified that he felt the case was over at that point and that he could do nothing more for Anderson.

Therefore, he did not file the motion for reconsideration or pursue otherwise clearing the judgment from Anderson’s or Leslie’s credit record. ²²⁴ Unremarkably, the judgment found its way onto Anderson’s credit record and, as a result, he encountered problems refinancing his home. Anderson testified that he also believed that he was turned down for a security job, which required a credit check during the security clearance, because of the judgment. Anderson obtained subsequently a job with the U.S. Marshal’s Office; however, the judgment remains on his credit record. Based on this evidentiary record, Judge Weatherly found, by clear and convincing evidence, that Walker-Turner violated MLRPC 1.1, 1.3, 1.4(a)(2), 1.4(b), 8.4(a), and 8.4(d).

B. Walker-Turner’s Exceptions The thrust of Walker-Turner’s exceptions seeks to re-direct our analytical focus from his own alleged misconduct to how Botsaris misled him. Indeed, Walker-Turner alleges that Botsaris violated MLRPC 3.3, 3.4, 4.1, and 8.4 by not informing the District Court of the terms of the settlement in principle reached the night before 26 January 2007 and by not requesting the case be passed until Walker-Turner arrived. Walker-Turner alleges further that Botsaris misled him intentionally as to the outcome of the case in the courtroom when he responded affirmatively to Walker-Turner’s question as to whether “everything is still in place.” As to Judge Weatherly’s conclusion that Walker-Turner violated MLRPC 1.1 (Competence), he admits generally that failure to appear for a trial without an acceptable explanation constitutes incompetent representation. He argues, however, that he was not “per se” absent from the trial because he was outside the courtroom on a cell phone with his client when the case was called apparently.

Additionally, he argues that there never should have been an affidavit judgment entered because his clients and Yellow Book reached a settlement the night before and he should have been able to rely reasonably on Botsaris to represent to the District Court judge that the case was settled. Walker-Turner takes exception also with the hearing judge’s conclusion that he violated MLRPC 1.3 (Diligence) ²²⁵ when he failed to appear for the trial; cheek the court docket; or, make his presence in the vicinity known to the courtroom clerk or Botsaris. Judge Weatherly concluded that, because Walker-Turner had not provided Botsaris with the signed agreement and was not present for the trial, he (Walker-Turner) should have assumed reasonably that adverse action was taken against his clients. Walker-Turner again falls back on what he calls Botsaris’s “double-crossing” actions to excuse why he was not present when the case was called for trial and why he did not confirm what happened in the courtroom in his absence.

Walker-Turner objects also to Judge Weatherly’s conclusion that he violated MLRPC 1.4(a)(2) and (b) (Communication) by failing to inform timely Anderson that a judgment was entered against him. He disputes the hearing judge’s finding that he did not pursue acquiring information as to the formal disposition of the docket call that he missed, again relying on his brief exchange with Botsaris in the courtroom hallway afterwards. Walker-Turner maintains that his lack of awareness of the judgment entered against his client should absolve him of his failure to inform timely Anderson. Based on his prior record of communicating with Anderson regarding the settlement negotiations in the Yellow Book case, Walker-Turner maintains that the reasonable supporting inference should be that, had he known of the judgment, he would have communicated that result to his client.

Based upon his exceptions to the hearing judge’s findings and conclusions as to the MLRPC 1.1, 1.3, and 1.4 charges, Walker-Turner submits that he should not be found to have violated MLRPC 8.4(a). He reiterates that there was not supposed to be a trial, as he and Botsaris reached a settlement agreement for their clients the night before; thus, the cascade of negative consequences to his clients from his failure to be present in the courtroom when the case was called for trial or to follow-up promptly afterwards to confirm what happened actually should not constitute violations of the MLRPC. ²²⁶ As to MLRPC 8.4(d), Walker-Turner insists that as soon as he learned about the judgment against his clients, he worked assiduously to rectify the situation. He disagrees also with the hearing judge’s finding that his Motion to Reconsider was denied as defective because it lacked an explanation of good cause and was filed untimely, noting that the order of the District Court stated simply “Denied,” without elaboration as to why that action was taken. Thus, Walker-Turner reasons, there was no clear and convincing evidence that his motion was inadequate in any respect.

Walker-Turner argues also that, once apprised of his clients’ predicament, he resolved the issue within 120 days and made sure his clients’ payments on the settlement agreement were timely and that he received a Line of Satisfaction in return.

II

STANDARD OF REVIEW This Court has original and complete jurisdiction over matters of attorney discipline. Att’y Griev. Comm’n v. Thomas, 409 Md. 121, 147 , 973 A.2d 185, 200 (2009). Maryland Rule 16-757(b) requires that, at the evidentiary hearing, Bar Counsel prove, by clear and convincing evidence, the charges leveled against the attorney.

The hearing judge’s proposed findings of facts are accepted by this Court, unless they are erroneous clearly. Att’y Griev. Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006). This deferential standard of review is in place because the hearing judge is in the best position to assess the credibility of witnesses and parties.

Id.; see also Md. Rule 16-759(b)(2)(B). We review the hearing judge’s conclusions of law, however, under a non-deferential standard. Att’y Griev. Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 236 (2008).

III

DISCUSSION A. MLRPC 1.1 MLRPC 1.1 requires that an attorney provide competent representation to his/her client. Failure to appear for a trial, absent an acceptable explanation, constitutes incompe ²²⁷ tent representation. See Att’y Griev. Comm’n v. De La Paz, 418 Md. 534, 553 , 16 A.3d 181, 192 (2011) (finding a violation of MLRPC 1.1 where the attorney did not enter his appearance on behalf of the client and did not attend the hearing); Att’y Griev.

Comm’n v. Tinsky, 377 Md. 646, 652 , 835 A.2d 542, 545 (2003) (concluding that the attorney’s failure to appear at two criminal proceedings was incompetent and showed a lack of diligence); Att’y Griev. Comm’n v. Harris, 366 Md. 376, 403 , 784 A.2d 516, 531 (2001) (finding a violation of MLRPC 1.1 where an attorney missed two criminal proceedings without a sufficient explanation). There is no dispute that Walker-Turner failed to appear in court on behalf of his clients at the 26 January 2007 trial. Walker-Turner offers, as his explanation, that the parties reached a settlement on the night before trial and, thus, there should have been no trial requiring his attendance.

This does not explain, however, his failure to check-in with the courtroom clerk when he entered the courtroom initially or to locate Botsaris, knowing that he had not provided yet Botsaris with a signed copy of the agreement. After he was told by Botsaris that his clients’ case had been called, he did not inquire of anyone as to the actual court disposition of the matter. Walker-Turner, instead, inquired only of Botsaris whether “everything was still in place” (referring to the oral settlement agreement), to which Botsaris responded affirmatively. Our opinion in this case should not be read as minimizing our strong encouragement of collegiality and professionalism among lawyers in their dealings with each other; however, depending on circumstances, reliance on an ambiguous response to an unduly limited inquiry cannot be a substitute for the basic due diligence that forms a part of the competent practice of law.

In the circumstances surrounding Walker-Turner’s misguided and perfunctory question put to Botsaris and his failure to seek promptly from the District Court confirmation of what happened in the courtroom in his absence (and thus discover timely that a judgment had been entered against his clients), his representation of his clients was incompetent. ²²⁸ A failure to file a necessary appeal or revisory motion within the allowable time period may constitute incompetence in the practice of law as well. Att’y Griev. Comm’n v. Byrd, 408 Md. 449, 458, 478 , 970 A.2d 870, 875, 887 (2009) (concluding that where an attorney filed a motion to vacate a judgment and a subsequent motion for reconsideration, both of which were denied, but failed to file timely an appeal of these denials, constituted a violation of MLRPC 1.1); Att’y Griev. Comm’n v. Awuah, 374 Md. 505, 522 , 823 A.2d 651, 661 (2003) (concluding that a failure to file an appeal and/or motion to reconsider within the requisite time period for a client’s immigration matter violated MLRPC 1.1).

Although Walker-Turner asserts that he did not receive the 30 January 2007 written notice from the District Court as to the 26 January 2007 entry of judgment against his clients, he waited longer than the 30-day period, after which the judgment became enrolled, in which to file a motion for reconsideration. See Md. Rule 3-534 (giving any party 10 days after entry of a judgment to file a motion to alter or amend a judgment in District Court matters) & 3-535 (giving any party 30 days after entry of a judgment to request the court to exercise its revisory power and alter or amend a judgment in District Court matters). Walker-Turner did not file a motion to vacate until 8 March 2007 (the day after Anderson received from Botsaris the request for oral examination). At this point, the motion was untimely and, to boot, offered no adequate explanation for why untimeliness should be excused.

Had Walker-Turner acted earlier to confirm what happened in the courtroom