Attorney Grievance Commission v. Wallace

CATHELL, J. On April 12, 2001, the Attorney Grievance Commission, petitioner, by Bar Counsel and Deputy Bar Counsel, filed a Petition for Disciplinary Action against Brian L. Wallace, respondent. The petition, based on six complaints filed against respondent, alleged that respondent had violated Maryland Rules of Professional Conduct (MRPC) 1.1, 1.3, 1.4(a) and (b), 1.5(a), 1.15(a) and (b), 1.16(a)(2) and (d), 3.2, 8.1(b), and 8.4(c) and (d). 1 Pursuant to Maryland Rule 16-752, 2 we ²⁸⁰ transmitted the matter to Judge Nancy Davis-Loomis of the Circuit Court for Anne Arundel County for her to conduct a hearing and to make findings of fact and conclusions of law. On July 31,-2001, an evidentiary hearing was held before the hearing judge. Neither respondent nor a representative of respondent appeared at the hearing.

On October 4, 2001, Judge Davis-Loomis filed her Findings of Fact and Conclusions of Law. The record was then transferred from the hearing judge to our Court for oral argument. I. Facts Respondent was admitted to the Bar of Maryland on December 8, 1987. The Petition for Disciplinary Action filed in this case was based on six complaints.

Respondent was served with the Petition, Interrogatories, and a Request for Admission of Facts and Genuineness of Documents. Respondent failed to answer all three. 3 Respondent also did not ²⁸² appear for the evidentiary hearing before the hearing judge and for oral argument before this Court. BC Docket No. 2000-428-4-2 Complaint of Herbert Miller, Esquire Mr. Miller represented a client in a case involving a party being represented by respondent. Mr. Miller sent a letter to respondent with allegations that respondent, or respondent’s client, was engaged in delaying tactics and deceitful conduct in an attempt to prejudice Mr. Miller’s client.

Respondent failed to respond to Mr. Miller’s letter and also failed, on several occasions, to respond to petitioner’s investigator about the allegation. The hearing judge found by clear and convincing evidence that respondent’s failure to respond to petitioner was a violation of MRPC 8.1(b). BC Docket No. 2001-132-4-2 Complaint of Ida M. Oxford Ms. Oxford was the personal representative of the estate of Ralph Clayton Smith, Jr., and she had retained respondent in February of 2000 as the estate’s attorney. In the course of his representation of the estate, respondent, after already obtaining a time extension, failed to file a timely administration account or to seek a further time extension within which to submit the administration account.

Respondent also failed to take any further substantive action with respect to the estate and to respond to Ms. Oxford’s requests for information. Ms. Oxford repeatedly tried to obtain her file from respondent and, despite his obligation to release the file, respondent failed to respond to Ms. Oxford’s requests. It was not until after an Inquiry Panel hearing was held regarding Ms. Oxford’s complaint that respondent released her file. Respondent also failed to respond to petitioner’s requests for information concerning Ms. Oxford’s complaint.

At the inquiry panel hearing, respondent indicated that he was unable to properly ²⁸³ represent Ms. Oxford because he was suffering from personal and psychological problems. The hearing judge found by clear and convincing evidence that respondent had violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.16(a)(2) and (d), and 8.1(b). Specifically, she made the following findings in support of the violation: respondent did not have the legal knowledge or skill to represent Ms. Oxford, respondent did not exercise the requisite thoroughness or preparation in his representation, respondent failed to act with reasonable diligence in representing Ms. Oxford, respondent failed to keep Ms. Oxford informed about the status of her case or to reply to her phone calls and written correspondence, respondent failed to properly explain the proceedings in her case to Ms. Oxford in a manner that would allow her to make informed decisions about her case, respondent failed to withdraw from his representation when he realized that his personal problems were interfering with his ability to represent Ms. Oxford, respondent failed to reasonably attempt to protect Ms. Oxford’s interests and to provide Ms. Oxford with her file when it was requested, and respondent failed to respond to inquiries from petitioner. BC Docket No. 2001-86-4-2 Complaint of Jacqueline O. Uzzell Ms. Uzzell was the personal representative of the estate of Mamie L. Gibson and she retained respondent at the end of 1997 as the estate’s attorney.

In February of 1998 Ms. Uzzell paid respondent $790.00 and in March of 1999 she paid him an additional $1,000.00. The only asset of the estate was a house with an appraised value of $49,000.00. In the course of his representation of Ms. Uzzell, respondent failed to timely file appraisals, an inventory of the estate, and accountings. He also failed to respond to delinquency notices issued by the Register of Wills lor Baltimore City.

Respondent also made misrepresentations to Ms. Uzzell about the work he was allegedly completing on her case and, when he was not making misrepresentations, he failed to respond to ²⁸⁴ a majority of Ms. Uzzell’s phone calls. Respondent failed to respond to petitioner’s inquiries concerning Ms. Uzzell’s complaint. The hearing judge found by clear and convincing evidence that in the course of his representation of the estate respondent had violated MRPC 1.1, 1.3, 1.4(a) and (b), 8.1(b), and 8.4(c). 4 Specifically, she made the following findings in support of the violations: respondent did not have the legal knowledge to represent Ms. Uzzell, respondent did not exercise the proper preparation and thoroughness in the course of his representation, respondent failed to act with reasonable diligence as evidenced by the filing of delinquent notices by the Register of Wills for Baltimore City, respondent failed to keep Ms. Uzzell informed about the status of her case, respondent made misrepresentations to Ms. Uzzell about the status of her case, his misrepresentations and failure to adequately explain the status of her case left Ms. Uzzell unable to make informed decisions about her case, and respondent failed to respond when petitioner requested information about Ms. Uzzell’s complaint. BC Docket No. 2001-133-4-2 Complaint of Diane Kent Ms. Kent hired respondent to represent her in an employment discrimination case.

She paid the respondent $1,000.00; respondent stated that he placed these funds in his trust account. Respondent filed suit on behalf of Ms. Kent in the United States District Court for the District of Maryland. Prior to filing suit, respondent did not obtain any information about the case as he failed to make any contact with the defendant, its employees, agents, or attorneys. ²⁸⁵ After filing the complaint respondent failed to take any substantive action on Ms. Kent’s behalf. The defendant filed a Motion to Dismiss and respondent failed to file a response.

The motion was granted and on February 17, 2000 Ms. Kent’s case was dismissed with prejudice. Respondent failed to notify Ms. Kent that her case had been dismissed. She learned of the dismissal in April of 2000 when she personally reviewed her file at the courthouse. Respondent had not returned Ms. Kent’s repeated telephone calls both before and after her case was dismissed.

In September of 2000 respondent promised to return $500.00 of his fee to Ms. Kent, but he failed to keep his promise. Respondent failed to account for the money he received from Ms. Kent and he was unable to determine how much of the $1,000.00 he received from Ms. Kent should be returned to her. This was caused by the respondent’s failure to keep accurate time records with respect to his representation of Ms. Kent. Respondent failed to respond to petitioner’s requests for information concerning the complaint of Ms. Kent and he also failed to comply with a subpoena issued by the Inquiry Panel in its investigation of Ms. Kent’s complaint.

The hearing judge found by clear and convincing evidence that respondent had violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.15(a) and (b), and 8.1(b). Specifically, the hearing judge made the following findings in support of the violations: respondent does not have the legal knowledge required to represent a client in this type of case, respondent failed to exercise the requisite thoroughness and preparation in the course of his representation, respondent failed to act with reasonable diligence by not investigating the case and by his failure to respond to the Motion to Dismiss, respondent did not return repeated phone calls from Ms. Kent, respondent did not keep Ms. Kent adequately informed about the status of her case, respondent failed to advise Ms. Kent of the Motion to Dismiss so she could make an informed decision regarding the representation and her case, respondent failed to keep ²⁸⁶ accurate accounting records for the funds paid to him by Ms. Kent, respondent failed to keep adequate time records with respect to his representation of Ms. Kent, respondent failed to promptly return funds to Ms. Kent that she was entitled to receive, and respondent failed to respond to petitioner’s request for information about Ms. Kent’s complaint and failed to respond to a subpoena issued by the Inquiry Panel. BC Docket No. 2000-382-4-2 Complaint of Leon Johnson In November of 1998, Mr. Johnson retained respondent to represent him in a race discrimination action against Three Lower Counties Community Services, Inc. (TLCCS). Mr. Johnson paid respondent a fee of $2,000.00, which respondent deposited into his escrow account.

In December of 1998 respondent transferred $1,000.00 of Mr. Johnson’s payment from the escrow account as a fee. Respondent filed suit on behalf of Mr. Johnson in the United States District Court for the District of Maryland on November 19, 1998. After filing suit, respondent failed to take any further action on Mr. Johnson’s case, including failing to have TLCCS served with Mr. Johnson’s complaint. In June of 1999, Mr. Johnson’s case was dismissed for want of prosecution.

Respondent did not inform Mr. Johnson that his case had been dismissed. During the course of his representation, respondent failed to reply to Mr. Johnson’s written requests for an update on his case and he also failed to provide Mr. Johnson with an accounting of the funds he had paid to respondent. Respondent also failed, despite Mr. Johnson’s repeated requests, to refund any of the $2,000.00 that respondent had collected from Mr. Johnson. On March 13, 2000, Mr. Johnson filed a complaint with petitioner.

On the day of the Inquiry Panel hearing in this case, respondent informed Mr. Johnson that he had decided against pursuing Mr. Johnson’s case because he felt the case had little or no merit. During petitioner’s investigation of this ²⁸⁷ complaint, respondent failed to reply to petitioner’s requests for information. The hearing judge found by clear and convincing evidence that respondent had violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.5(a), 1.15(b), 1.16(d), 3.2, and 8.1(b). Specifically, the hearing judge made the following findings in support of the violations: respondent did not have the legal knowledge or skill reasonably necessary to represent Mr. Johnson, respondent failed to act with the requisite thoroughness and preparation in the course of his representation, respondent failed to act with reasonable diligence in his pursuit of Mr. Johnson’s claim, respondent failed to keep Mr. Johnson appraised of the status of his case, respondent failed to properly explain Mr. Johnson’s case to him so that Mr. Johnson could make informed decisions about his case, respondent advised Mr. Johnson over two years after accepting his case that he thought Mr. Johnson’s case had little or no merit, respondent did not charge a reasonable fee, he failed to provide Mr. Johnson with an accounting of his funds, respondent failed to provide Mr. Johnson with a refund, respondent failed to make reasonable efforts to expedite litigation consistent with Mr. Johnson’s interests, and respondent failed to provide petitioner with information concerning this complaint.

BC Docket No. 2000-515-4-2 Complaint of Christopher Smoke Mr. Smoke retained respondent to represent him in a personal injury case arising out of an incident on September 21,1995, when Mr. Smoke sustained burn injuries at an Exxon service station. On September 21, 1998, respondent filed suit in the Circuit Court for Prince George’s County against Exxon Corporation and Calverton Exxon. Exxon Corporation filed a Motion for Production of Documents, which respondent failed to respond to and which failure resulted in the claim against Exxon Corporation being dismissed. The other defendant was an entity that had no legal existence.

Respondent’s failure to correct this mistake and obtain service on the second ²⁸⁸ defendant in a correct name resulted in the claim against the second defendant also being dismissed on October 26, 1999. Throughout his representation of Mr. Smoke, respondent failed to communicate with Mr. Smoke as to the status of his claim and respondent also failed to inform Mr. Smoke that the claim had been dismissed. Respondent also failed to respond to petitioner’s inquiries about this complaint. The hearing judge found by clear and convincing evidence that respondent had violated MRPC 1.1,1.3,1.4(a) and (b), 3.2, 8.1(b), and 8.4(d).

Specifically, the hearing judge made the following findings in support of the violations: respondent did not have the legal knowledge or skill to handle Mr. Smoke’s claim, respondent did not exercise the requisite thoroughness and preparation in his handling of the claim, respondent failed to exercise reasonable diligence in responding to Exxon Corporation’s Motion for Production of Documents and correcting the co-defendants name and obtaining service of process, respondent failed to keep Mr. Smoke' reasonably informed about the status of his case, respondent’s failure to communicate with Mr. Smoke did not allow Mr. Smoke to make informed decisions about respondent’s representation, respondent did not make reasonable efforts to expedite litigation consistent with Mr. Smoke’s interests, respondent failed to answer a lawful demand for information from a disciplinary authority, respondent failed to appear at a hearing of a disciplinary authority, and respondent engaged in conduct that is prejudicial to the administration of justice.

II

Discussion Respondent filed no exceptions to the hearing judge’s findings of fact or conclusions of law. The “hearing court’s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Grievance Comm’n v. Garland, 345 Md. 383, 392 , 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm’n v. Goldsborough, 330 Md. 342, 347 , 624 A.2d 503, 505 (1993)). After a review of the record, we hold that the findings of fact of the hearing judge are not clearly erroneous. We hold that ²⁸⁹ the hearing judge’s conclusions of law are supported by the facts.

We examined the purpose behind the attorney grievance procedure and the appropriate sanction for an attorney in Attorney Grievance Commission v. Franz, 355 Md. 752, 760-61 , 736 A.2d 339, 343-44 (1999), when we stated: “It is well-settled that the purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. Attorney Grievance Comm’n of Maryland v. Myers, 333 Md. 440, 446-47 , 635 A.2d 1315, 1318 (1994); Attorney Griev. Comm’n v. Goldsborough, 330 Md. 342, 364 , 624 A.2d 503, 513 [ (1993) ]; Attorney Griev. Comm’n v. Protokowicz, 329 Md. 252, 262-63 , 619 A.2d 100, 105 (1993); Attorney Griev.

Comm’n v. Myers, 302 Md. 571, 580 , 490 A.2d 231, 236 (1985); Attorney Griev. Comm’n v. Velasquez, 301 Md. 450, 459 , 483 A.2d 354, 359 (1984); Attorney Griev. Comm’n v. Montgomery, 296 Md. 113, 119 , 460 A.2d 597, 600 (1983). The public interest is served when this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated.

Attorney Griev. Comm’n v. Kerpelman, 288 Md. 341, 382 , 420 A.2d 940, 959 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981). By imposing such a sanction, this Court fulfills its responsibility ‘to insist upon the maintenance of the integrity of the Bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute.’ Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549 , 318 A.2d 811, 814 (1974). Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.

See Protokowicz, 329 Md. at 262-63 , 619 A.2d at 105 ; Attorney Griev. Comm’n