Attorney Grievance Commission v. Weiers

GREENE, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to Maryland Rule 16—751(a), filed a “Petition for Disciplinary or Remedial Action” against Daun Robert Weiers (“Respondent” or “Weiers”) on April 15, 2013. Petitioner charged Respondent—admitted to the Bar of this Court on December 14, 1973—with violations of Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 1.1 (Competence), 1 1.15(a) and (c) (Safekeeping Property), 2 1.5(a) (Fees), 3 8.1(b) (Bar Admission and Disciplinary Matters), 4 and ²⁹⁶ 8.4(d) (Misconduct), 5 and Maryland Rules 16-606.1 (Attorney Trust Account Record-Keeping) 6 and 16-607 (Commingling of ²⁹⁷ Funds). 7 The alleged violations stem from Mr. Weiers’s (1) admitted failure to keep time records, (2) payment to himself ²⁹⁸ from the Crescendo Realty, LLC retainer without obtaining the consent of his client, Mr. Hulamm, (3) typographical error on his trust ledger, (4) failure to withdraw the earned remainder of his retainer within a reasonable amount of time, and (5) reluctant, begrudging cooperation with Bar Counsel’s lawful requests during the course of his investigation. I. Findings of Fact and Conclusions of Law This Court referred the matter to Judge Cathy H. Serrette of the Circuit Court for Prince George’s County for an evidentiary hearing and to issue findings of fact and conclusions of law pursuant to Md. Rule 16-757. Following a hearing on September 17, 2013, Judge Serrette issued Findings of Fact and Conclusions of Law, in which she determined that Mr. Weiers had violated MLRPC 1.15(a) and 8.1(b), as well as Maryland Rule 16-607.

In reaching this determination, Judge Serrette made the following findings: Findings of Fact Respondent attended Carnegie Mellon University for his undergraduate studies and the University of Maryland ²⁹⁹ School of Law to study law. He was admitted to practice in Maryland in 1973 and maintains a sole practice in Leonard-town, Maryland. In 2009, his main areas of practice included general civil law, criminal law, and domestic relations. Currently, he is practicing on a limited basis.

On or about January 7, 2009, Van Hulamm hired Respondent on behalf of Crescendo Realty, LLC, Mr. Hulamm’s company, to provide legal services related to the removal of a fence on neighboring property, which blocked access to a parking lot used by businesses renting space from Crescendo Realty, LLC. Respondent and Mr. Hulamm orally agreed that Crescendo Realty, LLC, would pay a nonrefundable retainer fee of $1,000.00, with excess work to be billed at the rate of $150.00 per hour, plus $30.00 per letter and telephone call. Respondent immediately deposited the retainer fee into his client trust account. The level of communication between Respondent and the client during the course of the representation was disputed.

Mr. Hulamm averred that he did not hear from or again meet with Respondent until 2010, when he alerted Respondent to the fact that the fence had been removed by a third party. Respondent testified that Mr. Hulamm frequently called and visited the office throughout 2009, sometimes casually and sometimes to discuss legal matters. Respondent also produced a September 8, 2009 e-mail from Mr. Hulamm seeking legal advice regarding a complaint that Mr. Hulamm had filed with the Circuit Court. Respondent’s recitation of the contact between Mr. Hulamm and Respondent is credited.

On or about January 27, 2009, Respondent wrote a check to himself for $300.00 from his attorney trust account. The memo of the check read: “Earned Fee—Tighe/Crescendo.” On or about March 13, 2009, Respondent wrote a check to himself for $300.00 from the trust account, with the check memo reading: “Earned Fee—Crescendo/Perrone.” On March 18, 2010, Respondent withdrew $700.00 from the trust account. The check memo read: “Fee—Crescendo Realty.” ³⁰⁰ Petitioner mistakenly alleged that Respondent paid himself $1,300.00 when he had only deposited $1,000.00 on behalf of Hulamm/Crescendo Realty, LLC. Petitioner’s confusion arose from the fact that, as indicated on the memos, the January 27, 2009, and March 13, 2009 checks covered payments from more than one client.

Pursuant to the retainer agreement, Respondent researched various options for removal of the fence obstructing access to Hulamm/Crescendo Realty’s parking lot. None of the options researched proved favorable to Mr. Hulamm’s case. In early 2010, the fence was removed. Mr. Hulamm advised Respondent and asked for a refund of the retainer.

On November 17 and 21, 2011, Mr. Hulamm left notes for Respondent seeking a refund. Mr. Hulamm next reached out to Mr. Slade, a mutual friend who had introduced Mr. Hulamm to Respondent. Mr. Slade spoke with Respondent, who agreed to return $500.00 of the retainer fee, as an alternative to “having [Mr. Hulamm] pestering me and bad mouthing me all over town.” Mr. Hulamm sent an email to Respondent on or about January 11, 2012, confirming the agreement. He added that should the $500.00 not be received by January 17, 2012, Mr. Hulamm would expect a full $1,000.00 refund.

Mr. Hulamm did not receive the money by January 17, 2012, and he filed a grievance with the Attorney Grievance Commission the next day. On January 22, 2012, Mr. Hulamm received a $500.00 check from Respondent. On January 27, 2012, the Commission sent Respondent a letter enclosing Mr. Hulamm’s complaint and requesting a response within fifteen (15) days. A follow-up letter was sent on February 24, 2012.

Respondent responded on March 8, 2012. On April 12, 2012, the Commission wrote a letter seeking a copy of the retainer agreement with Mr. Hulamm and the billing invoice. A follow-up letter was sent on May 3, 2012. Respondent answered on May 11, 2012, explaining that he did not have a written retainer agreement or time records.

On June 12, 2012, the Commission ³⁰¹ wrote a letter to Respondent asking for documentation that the client’s fee had been maintained in trust until earned. A follow-up letter was sent July 6, 2012. On July 25, 2012, Respondent replied that he was unaware of the specific misconduct for which he was being investigated. The Commission sent a letter on September 4, 2012, suggesting that Respondent may be in violation of MLRPC 1.15(a) and (c), and Maryland Rule 16-606.1.

Respondent replied on September 10, 2012. On October 5, 2012, the Commission’s investigator, Edwin Karr, Jr., attempted to call Respondent, but the number had been temporarily disconnected. Mr. Karr checked with the Maryland State Bar directory and an internal database, both of which listed the number he had called. On October 15, 2012, Mr. Karr visited Respondent’s office and left his business card.

Respondent called him later that day, but refused to set up an interview with the investigator without first being advised of the charges against him. The Petition for Disciplinary of Remedial Action was filed April 15, 2013. Judge Serrette further entered conclusions of law, determining that Mr. Weiers had violated MLRPC 1.15(a) and 8.1(b), and Md. Rule 16-607. She explained: CONCLUSIONS OF LAW Maryland Rules of Professional Conduct 1.15(a) and (c).

Safekeeping Property Respondent admitted that he did not keep time records, did not bill Mr. Hulamm, and did not advise Mr. Hulamm when he would be paying himself from the “nonrefundable” retainer for services rendered. Additionally, Respondent admitted that he did not take the $700.00 payment for some time after he had completed the work for which he had been retained. ³⁰² Respondent credibly testified that the retainer had “probably” been exhausted by March, 2009, but that Mr. Hulamm continued to come to his office on a variety of matters. Only when Respondent had not heard from Mr. Hulamm for about two months and determined that the attorney-client privilege had ended did Respondent withdraw the balance of the retainer on March 18, 2010. Respondent performed the services for which he was retained, earned the fee taken, and communicated with Mr. Hulamm on a somewhat regular basis about the action at issue in this case as well as other matters.

Further, he maintained the requisite trust account records, with only the above-noted four-day mistake having been established. To some extent, Respondent appeared to be the victim of the old adage, “no good deeds go unpunished.” He repeatedly provided free legal advice to Mr. Hulamm, who in turn appeared to believe that Respondent should provide him free services. Respondent was not faultless, however. As in Attorney Grievance Commission v. Tun, 428 Md. 235 , 51 A.3d 565 (2012), in which inadequate time records led to questions about entitlement to compensation which counsel had earned, Respondent Weiers’[s] failure to keep time sheets and to bill accordingly led to Mr. Hulamm’s insistence that he was due a refund although Respondent had earned his fee.

Further, Respondent’s failure to timely pay himself for services rendered to Crescendo Realty, LLC, resulted in the commingling of earned and unearned funds in Respondent’s trust account for approximately one year. See Attorney Grievance Commission v. Zuckerman, 386 Md. 341, 370-73 , 872 A.2d 693 (2005) (in which counsel failed to timely withdraw funds to which he was entitled). Accordingly, while a violation of Rule 1.15(c) was not established, Petitioner established by clear and convincing evidence that Respondent violated Rule 1.15(a) by failure to timely withdraw earned fees. ³⁰³ Maryland Rules of Professional Conduct 8.1(b). Bar Admission and Disciplinary Matters Petitioner argued that Respondent violated Rule 8.1(b) by: 1) failing to timely respond to letters from the Attorney Grievance Commission; and 2) refusing to meet with the Commission’s investigator.

The Commission cited two cases in support [of] the charge: Attorney Grievance Comm’n v. Oswinkle, 364 Md. 182 , 772 A.2d 267 (2001), and Attorney Grievance Comm’n v. Nelson, 425 Md. 344 , 40 A.3d 1039 (2012). In Oswinkle , Bar Counsel sent six letters and attempted three telephone calls to the attorney respondent between August 1998 and April 1999. 364 Md. at 185—86, 772 A.2d [at] 269. Said respondent responded for the first time in late April, 1999 and represented that he would file a response the following week. 364 Md. at 186 , 772 A.2d [at] 269. He did not.

Id. Respondent’s conduct was held to be a violation of Rule 8.1(b), which “places an obligation on an attorney to respond to a lawful demand from Bar Counsel.” 364 Md. at 189 , 772 A.2d [at] 270. In Van Nelson, the respondent attorney, who had failed to respond to two letters from the Attorney Grievance Commission, refused to meet with the Bar Counsel investigator, failed to participate in the judicial hearing and whose whereabouts where unknown, was likewise found to have violated Rule 8.1(b) for knowingly failing to respond to a lawful demand for information from a disciplinary authority. 425 Md. at 353, 362 , 40 A.3d [at] 1044, 1049. The instant case is unlike those cited by Petitioner.

Respondent grudgingly responded to Petitioner, answering their questions, while contending throughout that he had not been informed of how he was alleged to have violated the Rules. On three occasions, Respondent failed to initially respond to inquiries, but in each case, he responded quickly to follow-up letters. The longest delay between an initial inquiry and a response was 43 days. Respondent’s behavior was dilatory, rather than obstructionist.

Respon ³⁰⁴ dent refused to meet with the investigator, but ultimately responded to Petitioner’s letters, appeared at deposition, and actively participated in this action. Nonetheless, “Rule 8.1 places an obligation on an attorney to respond to a lawful demand from Bar Counsel. The rule does not distinguish between attorneys who fail to respond to lawful demands due to dilatoriness, on the one hand, and those on the other hand, who intentionally fail to respond. Moreover, the ultimate resolution of the complaint does not affect the determination of whether the rule has been violated.

An attorney’s obligation to respond to lawful demands of Bar Counsel applies when the attorney upon whom the demand is made is the focus of the investigation or when the investigation relates to the conduct of another attorney.” Oswinkle, 364 Md. at 189 , 772 A.2d at 270-71 . Respondent cannot be said to have “failed” to respond to the Attorney Grievance Commission, but his failure to readily cooperate constituted a violation of Rule 8.1(b). Maryland Rules, Rule 16-607. Commingling of Funds Rule 16-607(b)(2) provides, in pertinent part, that fees earned by counsel “shall be withdrawn promptly when the attorney or law firm becomes entitled to the funds.” As discussed above, Respondent waited approximately one year to withdraw the $700.00 to which he was entitled as a result of legal services provided for Hulamm/Crescendo Realty, LLC.

Accordingly, he is in violation of Rule 16-607. As to Respondent’s alleged violations of MLRPC 1.1, 1.15(c), 1.5(a), 8.4(d), and Md. Rule 16-606.1, the hearing judge determined that the charges were not established by clear and convincing evidence.

II

Discussion In attorney discipline proceedings, “this Court has original and complete jurisdiction and conducts an indepen ³⁰⁵ dent review of the record ... [T]he hearing judge’s findings of fact generally will be accepted unless they are clearly erroneous.” Attorney Grievance Comm’n v. Cherry-Mahoi, 388 Md. 124, 152 , 879 A.2d 58, 76 (2005) (citations omitted). Pursuant to Maryland Rule 16-759(b)(2)(A), “[i]f no exceptions are filed, the Court may treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.” In other words, we deem the hearing judge’s findings of fact “correct if (1) they are not clearly erroneous, or (2), at th[is] Court’s option, if neither party filed exceptions to them.” Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334 , 68 A.3d 862, 868 (2013) (citations omitted). Neither Petitioner nor Respondent filed exceptions to the hearing judge’s findings of fact and conclusions of law. 8 Accordingly, as discussed supra, this Court accepts Judge Serrette’s findings of fact as established for the purpose of determining the appropriate sanction. The hearing judge’s proposed conclusions of law are reviewed for legal correctness.

Attorney Grievance Comm’n v. West, 378 Md. 395, 410 , 836 A.2d 588, 596 (2003). “In other words, the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court.” Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 552 , 16 A.3d 181, 192 (2011) (citation omitted). Having reviewed Judge Serrette’s conclusions of law, we agree that Respondent violated MLRPC 1.15(a) and 8.1(b), as well as Md. Rule 16-607, finding these conclusions of law supported by the factual record. A. MLRPC 1.15(a) and Md. Rule 16-607 This Court has made clear that an attorney’s failure to withdraw earned fees from his or her trust account in a timely manner results in an impermissible commingling of funds violative of MLRPC 1.15(a) and Maryland Rule 16-607. See Attorney Grievance Comm’n v. Thomas, 409 Md. 121, 150 , 973 ³⁰⁶ A.2d 185, 202 (2009) (holding that the attorney’s practice of leaving unearned fees in his trust account for an indeterminate amount of time violated both MLRPC 1.15(a) and Md. Rule 16-607); Attorney Grievance Comm’n v. Zuckerman, 386 Md. 341, 370-71 , 872 A.2d 693, 710-11 (2005) (determining that the attorney violated both Rule 1.15(a) and 16-607 by failing, on multiple occasions, to remove earned fees held in trust for periods of one year or more); Attorney Grievance Comm’n v. Sliffman, 330 Md. 515, 525-26 , 625 A.2d 314, 319 (1993); cf. Attorney Grievance Comm’n v. Webster, 348 Md. 662, 677 , 705 A.2d 1135, 1142 (1998) (“The purpose of the anti-commingling rules is to protect client funds from the claims of creditors of the attorney.”).

In the instant case, the hearing judge found that Mr. Weiers withdrew the remaining balance of the Crescendo Realty, LLC retainer in March of 2010, despite having admittedly completed the work for which he was retained by March, 2009. This one-year delay resulted in a violation of MLRPC 1.15(a) and Md. Rule 16-607. B. MLRPC 8.1(b) Respondent’s failure to cooperate readily and fully with Bar Counsel constitutes a violation of MLRPC 8.1(b). As we have previously explained, This Court has a long history of holding that an attorney violates Rule 8.1(b) by failing to respond to letters from disciplinary authorities requesting information----The pro- cess of investigating complaints depends to a great extent upon an individual attorney’s cooperation.

Without that cooperation, the [disciplinary authority] is deprived of information necessary to determine whether the lawyer should continue to be certified to the public as fit. Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 249, 255 , 760 A.2d 1108, 1116, 1119 (2000) (internal citations and quotations omitted); see also Attorney Grievance Comm’n v. Jarosinski, 411 Md. 432, 454 , 983 A.2d 477, 490 (2009) (holding that “Respondent’s failure to respond timely to Bar Counsel’s inquiries and to cooperate fully ... was a failure ‘to respond to a lawful demand for information from [a] ... disciplinary ³⁰⁷ authority’ and thereby violated M[L]RPC 8.1(b)”) (citations omitted). In the instant case, the hearing judge found that Mr. Weiers “grudgingly responded to Petitioner, answering their questions, while contending throughout that he had not been informed of how he was alleged to have violated the Rules,” evincing “dilatory, rather than obstructionist” behavior. Importantly, Respondent failed to respond initially to Bar Counsel’s requests on several occasions—although ultimately responding to follow-up letters sent by Petitioner—and refused to meet with an investigator.

Despite ultimately participating in this action, Mr. Weiers’s conduct is indicative of his antipathy towards Bar Counsel and its responsibilities, as well as the legitimacy of the attorney disciplinary process. This is reflected in Respondent’s inflammatory letters to Bar Counsel stating, for instance: I do not know what misconduct you are investigating and I don’t think you do either. Your latest