Attorney Grievance Commission v. Ward

BELL, C.J. The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 filed a Petition For Disciplinary Action against Kenneth S. Ward, the respondent. The petition charged that the respondent violated Rules 1.1, Competence, 2 1.3, Diligence, 3 ²⁰⁵ 1.4, Communication, 4 1.5, Fees, 5 1.16, Declining or Terminating Representation, 6 and 8.4, Misconduct, 7 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. ²⁰⁶ We referred the case, pursuant to Rules 16-752(a), 8 to the Honorable Wanda Keyes Heard, of the Circuit Court for Baltimore City, for hearing pursuant to Rule 16-757(e). 9 After a hearing, at which the respondent appeared and participated, Judge Heard found the following facts by clear and convincing evidence. The respondent was retained, on October 31, 2002, by the complainant, Soraya Thompson-Brashears, whom he agreed to represent, in connection with the estate of her great aunt, the decedent. The complainant had consulted other attorneys, but chose the respondent because “he represented that he was able to proceed without assistance in Maryland and the District of Columbia.” In return for opening an estate, the value of which was $210,000.00, $200,000.00 representing the approximate value of real estate titled in the decedent’s name, and filing an action against the decedent’s neighbor for fraudulently pledging the decedent’s property as security for lines of credit, in the amount of $50,000.00, he established for his own, ²⁰⁷ and not her, benefit, the complainant agreed to pay, and did pay, the respondent a $3,000.00 retainer, which was to cover the first twenty (20) hours of work at the rate of $150.00 per hour.

The respondent intended, as he informed the complainant, to open the estate first and then proceed immediately against the decedent’s neighbor. The complainant initially tried contacting the respondent for updated information concerning his progress with the legal matters in December and had trouble doing so. When she did reach him, he advised her that he had filed in court and “was waiting to get a date.” On December 26, 2002, the respondent received a letter from the Register of Wills of Anne Arundel County informing him of that Office’s receipt of the decedent’s Last Will and Testament and a petition to open an estate in her name under a Will of No Estate and asking for additional information, ie. a Waiver of Bond, a Death Certificate, clarification of the unsecured debts schedule and a complete list of interested persons. The respondent did not respond to the letter or take any action -with regard to it or the estate.

Nor did he inform his client, who had heard nothing of the matters during January and February, 2003, except from the mortgage lender, who was inquiring about the status of the estate. The mortgage lender filed, in the Circuit Court of Anne Arundel County, a Petition for Judicial Probate on March 31, 2003, to protect its interest. The respondent filed a civil action in the Superior Court of the District of Columbia against the decedent’s neighbor. The complaint, which was signed by the respondent and Will Purcell, a lawyer admitted to practice in the District of Columbia, but not by the client, alleged fraud and conversion.

The complainant also was unaware that Purcell had been “directed” to file the action on her behalf. Because he was not admitted to practice in the District of Columbia, prior to filing the complaint, the respondent moved, through Mr. Purcell, to appear Pro Hac Vice in the Superior Court. In that motion, he represented that he was in good standing in, and that “there [were] no disciplinary complaints ²⁰⁸ pending against [him] for a violation of the rules” of, the Courts, the Supreme Court of New Jersey and the Court of Appeals of Maryland, to which he was admitted to practice. The motion was filed April 4, 2003.

On February 21, 2003, Bar Counsel had notified the respondent of a disciplinary complaint against him then pending in Maryland. The District of Columbia action was dismissed without prejudice on two occasions, each time for failure to effect service on the defendant, as required by D.C. Rule 4(m). The first occasion was on June 18, 2003. Shortly after that dismissal, the complainant, who had been notified of a scheduling conference in the case, went to the Superior Court on the designated date, August 1, 2003, only to discover that the respondent did not appear.

When contacted by the complainant as to why he failed to respond, the respondent advised her that the case had been continued; he did not inform her that the case had been dismissed. The fraud case was refiled by the respondent, with the assistance of Mr. Purcell, on May 5, 2004 and it was once again dismissed for failure of service on the defendant, on July 14, 2004. The probate case was filed in the wrong court, the Orphans’ Court for Anne Arundel County concluded. The decedent was domiciled in Montgomery County.

Accordingly, the court ordered, on July 15, 2003, the case transferred to the Montgomery County Orphans’ Court “for administration and further action.” That was accomplished on July 28, 2003, when the Montgomery County Register of Wills docketed the Anne Arundel County Orphans’ Court’s order. Subsequently, after a hearing, the complainant was appointed personal representative. The probate matter did not proceed smoothly. The inventory for the estate was not timely filed, even after a delinquency notice advised the complainant and the respondent of that fact and of the due date to avoid referral for hearing.

The inventory was filed by the respondent more than ten days after the designated “due” date. Subsequently, on October 12, 2004, the failure to file a final inventory resulted in a show ²⁰⁹ cause referral to the Orphans’ Court. Another show cause was issued six days later, this one to the complainant and the respondent, asking why the complainant, as personal representative, should not be removed “for failure to perfect an inventory.” Still later, on December 7, 2004, “another delinquent notice was posted to the Respondent notifying him that the Interim Account of the Estate of Catherine Parker was past due on November 29, 2004 and that failure to file the account within twenty (20) days may result in the personal representative’s removal.” This apparently prompted the complainant to get new counsel, who effected the transfer of the probate matter to the District of Columbia, the situs of the decedent’s property and her domicile and residence for more than a year prior to her death. While the respondent was representing the complainant, the indebtedness charged against the decedent’s estate by her neighbor increased from a principal amount of $50,000.00 to “an aggregate amount of $57,000.00 and increasing due to unpaid interest.” Having found these facts, the hearing court concluded, as follows: “Competency “This Court finds by clear and convincing evidence that the Respondent acted incompetently when he accepted a case that required filing in a jurisdiction where he was not admitted to practice and when he failed to serve notice to Mr. Green.

In Atty. Grievance Com’n v. Thompson, 376 Md. 500, 512 , 830 A.2d 474 (2003) the Maryland Court of Appeals found that an attorney’s failure to file timely reports and a pattern of mistakes that delay the closure of an estate are considered incompetent representation. The Respondent similarly delayed the closure of the estate for his client. Ms. Brashears needed an attorney familiar with the laws of the District of Columbia, and hired the Respondent based on his assertion that he could practice in the District.

(Plain.Ex.l, ¶ 11). In fact, the Respondent was not licensed to practice in the ²¹⁰ District, and it was incompetent for the Respondent to twice fail to serve Lloyd Green in a timely manner in compliance with D.C. Rule 4(m). (Plain. Ex. 1, ¶ 24, ¶ 25 & ¶ 40). “Also, the Court of Appeals found in Atty.

Grievance Com’n v. Finnesey, 283 Md. 541, 547 , 391 A.2d 434 (1978) that neglect and inattentiveness to a client’s interests constitute incompetent representation. Similarly in the case at bar, the Respondent was inattentive to his Client’s interests when he opened an estate in the wrong jurisdiction, Anne Arundel County, Maryland. A cursory reading of the Death Certificate of Ms. Parker would have indicated to the Respondent that the decedent’s domicil[e] was the District of Columbia, which was the proper jurisdiction to open the estate. Furthermore, Ms. Brashears informed the Respondent that her aunt’s property was [in] the District of Columbia, and that she needed an attorney capable of moving forward in the District of Columbia.

(Plain. Ex. 1, ¶ 4, ¶ 10 & ¶ 44). The Respondent’s actions were sloppy at best, reckless, and indicate a lack of thoroughness and attention to details which prevented the timely closure of Ms. Parker’s Estate, and therefore reach the level of incompetency. “Diligence “This Court finds by clear and convincing evidence that Respondent did not act with reasonable diligence and promptness in representing a client when he failed to file the estate in the proper jurisdiction. (Plain.Ex.l, ¶ 15).

In Atty. Grievance Com’n v. Guida, 391 Md. 33, 43 , 891 A.2d 1085 (2006), the Court found a violation of Rule 1.3 when an attorney failed to file a relatively uncomplicated matter, an adoption filing. Similarly in this case it was crucial for Respondent to determine the correct jurisdiction. The evidence in this case was uncomplicated and the Respondent could have accomplished proper filing with reasonable diligence.

The Respondent had documents indicating the decedent was domiciled in the District of Columbia at her death. Ms. Brashears indicated that the relevant property was in the District of Columbia, but he ²¹¹ still opened the estate in Maryland instead of its proper place. (Plain. Ex. 1, ¶ 4 & ¶ 26). “Furthermore, this Court finds Rule 1.3 was violated when the Respondent twice failed to perfect service on Mr. Green.

(Plain. Ex. 1, ¶ 26 & ¶ 34). In Atty. Grievance Com’n v. Fezell, 361 Md. 234, 243 , 760 A.2d 1108 (2000), the Court determined that an attorney did not exercise due diligence when failing to serve a defendant in a divorce matter when the defendant’s address could have easily been obtained from the client.

Similarly, the Respondent twice failed to serve Mr. Green for the fraud and conversion case, even when Ms. Brashears gave the Respondent Mr. Green’s address and told him Mr. Green was the decedent’s neighbor. (Plain. Ex. 1, ¶ 26 & ¶ 4). The Respondent’s repeated failures to properly serve Mr. Green, given the evidence, demonstrates a lack of reasonable diligence. “This Court finds by clear and convincing evidence that the Respondent violated Rule 1.4(a) & (b) when he told Ms. Brashears that he was admitted to the DC Bar when he was not, and also, for failing to inform his client that he intended to seek other counsel in the District of Columbia to assist him.

In Atty. Grievance Com’n v. McLaughlin, 372 Md. 467, 468 , 813 A.2d 1145 (2002), the Court found that a violation of Rule 1.4 exists if an attorney fails to communicate, truthfully, the progress of a case to the client. (Plain; Ex. 1, ¶ 10 & ¶ 11). This Court finds that, by clear and convincing evidence, Ms. Brashears specifically asked if Respondent could handle legal issues in the District of Columbia.

She interviewed and rejected other lawyers who could not practice in the District of Columbia. This Court believes Ms. Brashears was a credible witness and further finds that Respondent must have told her he could act in the District of Columbia because he was subsequently retained. (Plain. Ex. 1, ¶ 10 & ¶ 11).

This Court does not believe or find credible Respondent’s statement that he informed Ms. Brashears that he was not admitted to practice in the District of Columbia or that he intended ²¹² to seek assistance from another attorney to file matters for him in the District of Columbia. (Plain.Ex.l, ¶ 11). “Also, this Court finds by clear and convincing evidence that Respondent further violated Rule 1.4(a) & (b) when he failed to tell Ms. Brashears that the Green case was dismissed. In Atty. Grievance Com’n v. Finnesey, 283 Md. 541, 547 , 391 A.2d 434 (1978)[,] the Court found a violation of this communication rule when an attorney told a client a hearing was rescheduled when it was actually dismissed.

Similarly, the Respondent misrepresented the status of his client’s case. Ms. Brashears traveled to the Superior Court of the District of Columbia for a Conference Hearing regarding the Green case; however the Respondent never appeared. (Plain. Ex. 1, ¶ 29 & ¶ 30).

Upon contacting the Respondent, he told Ms. Brashears that the case was continued, when in fact it was dismissed due to the Respondent’s failure to serve Mr. Green a summons. (Plain. Ex. 1, ¶ 29 & ¶ 30). The Respondent’s lack of candor left Ms. Brashear uninformed as to the progress of her case, and hindered her ability to make informed decisions concerning her representation. “Fees “This Court finds by clear and convincing evidence that the Respondent’s fees were unreasonable; he charged and accepted fees when no work was performed in furtherance of the case in violation of MRPC 1.5(a)(4).

In Atty. Grievance Com’n v. McLaughlin, 372 Md. at 499 , 813 A.2d 1145 the Court determined that an attorney charged an unreasonable fee when little or no work was performed for the client. In the case at bar, the Respondent entered into a retainer agreement for $3,000.00 for twenty (20) hours at an hourly rate of $150.00. (Plain.Ex. 1, ¶ 1).

Although not unreasonable on its face, the Respondent did little work to resolve his client’s interests. The Green case was dismissed twice for lack of service, and the Respondent opened the estate of Ms. Parker in the wrong jurisdiction, which was subsequently transferred to Montgomery County, and only through the efforts of other ²¹³ counsel, later retained, was the issue opened in the proper jurisdiction. (Plain.Ex.l, ¶ 40-44). The Respondent received fees, but failed to take necessary steps on the client’s behalf, thereby hindering and impeding a timely resolution of the client’s issues. “Declining: or Termination Representation “This Court finds that the Petitioner failed to prove by clear and convincing evidence that Respondent violated Rule 1.16(d).

In McLaughlin, 372 Md. at 507 , 813 A.2d 1145 , an attorney was found in violation for not returning unearned fees, the court stated that an attorney has a duty to return the entirety of unearned fees under this rule. Unlike McLaughlin , the Respondent indicated that he returned the retainer fee and is paying an additional $7,000 for a malpractice settlement to Ms. Brashears. The Respondent has made six (6) $850.00 monthly installments to satisfy the settlement agreement, totaling $5,100.00. However, the Respondent indicated, at the hearing, that he has not made additional payments between April 2006 and the hearing date.

The Respondent has returned $3,000.00 to the client representing the entire advance