Attorney Grievance Commission v. Williams

KARWACKI, Judge. On August 5, 1993, Joseph Emannuel Williams (“Respondent”), a member of the Maryland Bar since 1985, was charged by the Attorney Grievance Commission, acting through Bar Counsel, with multiple counts of professional misconduct as defined by Rule BV1 k and Rule 1230 of the Maryland Rules of Procedure. The petition alleged that Respondent had violated Rules 1.1, 1.3, 1.4,1.15, 3.3 and 8.4 of the Maryland Rules of Professional Conduct. 1 The petition also alleged that Respondent violated Maryland Code (1989), ⁴⁶¹ § 10-306 of the Business Occupations and Professions Article and Rule BU9 of the Maryland Rules of Procedure. 2 We referred the matter, pursuant to Maryland Rule BV9 b, to Judge Leonard S. Jacobson of the Circuit Court for Baltimore County for a hearing on these charges and for his findings of fact and conclusions of law as to them. On January 31, 1994, after several days of evidentiary hearings, Judge Jacobson filed a memorandum opinion, setting forth his findings of fact and conclusions of law.

His findings of fact were as follows: ⁴⁶² “This action arises out of four separate complaints made to the Commission regarding the conduct of the Respondent. The decision of this Court is based upon consideration of the testimony, exhibits, stipulations and transcripts of the administrative hearing, regarding all four complaints, produced at the hearing before this Court on January 4, 6, 7 & 18, 1994. The underlying facts were not highly contested and are found to be true by clear and convincing evidence. COMPLAINT OF WILLIAM H. WILLIAMS JR.

Docket No. 92-72-3-7 The Complainant Mr. William H. Williams retained the Respondent to represent him in a divorce action in April, 1990. A Complaint for Absolute Divorce was filed in the Circuit Court for Baltimore City on May 18, 1990. ('Williams v. Williams, No. 90138001/CE113806). On October 17, 1990, Mrs. Williams’ attorney filed Interrogatories which were not answered until February 13, 1991, despite several requests for production.

Due to the incomplete nature of the Answers filed by respondent, Mrs. Williams filed a Motion to Compel Discovery and Request for Sanctions on April 30, 1991 which was later granted on June 20, 1991. On April 3, 1991, Mrs. Williams filed additional discovery in the form of a Request for Production of Documents. The requested documents were not furnished and a second Motion to Compel was filed and granted on July 12, 1991. Because of the delay in discovery, Mrs. Williams requested a postponement to adequately prepare for trial.

The case was reset for April 17, 1991. A second postponement was later obtained by the Respondent because [of] the death of a fraternity brother, however, the Respondent never told Mr. Williams. Mr. Williams learned of the postponement when he appeared for trial. The case was rescheduled for August 14,1991 at 2:00 p.m.

It was later learned that the Respondent was also scheduled to appear before the Circuit Court for Montgomery County ⁴⁶³ for a calendar call on behalf of Anthony J. Corbin, Sr. 3 (Corbin v. Thompson, No.: 61135). Although the Respondent knew of the scheduling conflict, he did not request a postponement until August 13, 1991. During the August 13th postponement hearing before Judge Kathleen O. Friedman, Respondent knowingly misrepresented to the court that he was scheduled to begin trial in Corbin v. Thompson, when the case was only set for a calendar call. Counsel for Mrs. Williams informed the court of the correct nature of the Montgomery County hearing.

Upon the information provided by Mrs. Williams’ attorney, Judge Friedman denied Respondent’s request. On August 14,1991, Respondent failed to appear either in Mr. Williams’ case or Mr. Corbin’s case. As a result of the Respondent’s failure to appear, Mr. Williams was forced to proceed pro se before Judge Mabel House Hubbard. On October 11, 1991, a hearing was conducted by Judge Hubbard for Respondent to show cause why he should not be held in contempt of court for his unexcused absence.

During the show cause hearing, Respondent stated that he was ill at home with his child; that he could not contact the court because his phone was disconnected; and that he could not get to a pay phone since he did not want to take his child out in the heat. After finding Respondent in contempt, Judge Hubbard held that he could purge the contempt by returning half of the fee paid by Mr. Williams. Respondent provided a check to Mr. Williams for $350.00 which was dishonored upon presentment for insufficient funds. The check was later honored after a second attempt at deposit.

COMPLAINT OF ANTHONY J. CORBIN, SR. Docket No. 92-121-3-7 The Complainant Anthony J. Corbin, Sr. retained the Respondent to represent him in two matters regarding his ⁴⁶⁴ son: establishing a visitation schedule and an injunction action. Respondent filed a Petition for Visitation Rights in the Circuit Court for Howard County on June 18, 1990. (Corbin v. Corbin, No. 90-CA-13569).

On June 27, 1991, a consent order was prepared and forwarded to Mr. Corbin for review. After reviewing the document, Mr. Corbin returned it to the Respondent and requested that several changes be made. Despite several attempts, Mr. Corbin did not hear from the Respondent and the case was later dismissed by the Court on March 6, 1992 for lack of prosecution, pursuant to Maryland Rule 2-507(c). With regard to the injunction action, a Complaint was filed in the Circuit Court for Montgomery County to keep Mr. Corbin’s father from seeing the minor child.

(Corbin v. Thompson, No. 61135). On August 24, 1990 the court scheduled the case for a calendar call on August 14, 1991 at 1:30 p.m. 4 Despite several attempts, Mr. Corbin did not hear from Respondent until August 10, 1991 when he left a message stating that Mr. Corbin need not appear for the hearing. The Respondent failed to appear for the calendar call on August 14, 1991 and the case was dismissed by the Court. A Motion to Strike the Dismissal was filed by the Respondent which was denied by the court after noting that a hearing notice had been mailed to Respondent on August 24, 1990.

COMPLAINT OF MICHELLE C. DIAL Docket No. 92-151-3-7 The Complainant Ms. Michelle C. Dial was named personal representative in the Last Will and Testament of Mr. Bernett Dyson. Mr. Dyson’s Will, was drafted by the Respondent. In the Will, the Respondent was named substitute personal representative in case Ms. Dial was unable ⁴⁶⁵ or declined to serve as personal representative. Ms. Dial was also the sole legatee.

After the death of Mr. Dyson, Ms. Dial declined to serve as personal representative and Respondent opened a small estate and was appointed personal representative on October 3,1990. In addition to Mr. Dyson’s estate, Ms. Dial also gained joint possession of the Dyson residence with her son. In September, 1990, insurance paid $3,408.00 for Mr. Dyson’s funeral leaving an unpaid balance of $50.00. Ms. Dial personally paid the balance and was never reimbursed from the estate as required under Maryland law.

Ms. Dial received $10,061.71 from Mr. Dyson’s other life insurance policies and subsequently endorsed the reward check to the Respondent. Respondent deposited $10,061.71 into his client funds account on November 6, 1990, but returned $5,095.20 to Ms. Dial on November 30, 1990. The remaining $4,966.40 was retained by the Respondent in his client funds account for the purpose of paying inheritance taxes from the transfer of the Dyson residence. A written assignment agreement was entered into between the Respondent and Ms. Dial that authorized Respondent to advance estate expenses but not pay any of Mr. Dyson’s outstanding debts.

Respondent did not retain the $4,966.40 in his client funds account and did not use the funds to [pay] expenses arising out of the estate of Mr. Dyson. Respondent withdrew large sums of money from his client funds account by checks made payable to himself and cash. These misappropriations of funds eause[d] the balance in his Client Funds Account to dip way below the $4,966.40 held on behalf of Ms. Dial. In addition to the life insurance policies, Mr. Dyson had a savings account with a balance of $625.02 5 and a checking account with a balance of $352.20.

Respondent failed to ⁴⁶⁶ close the checking account allowing the $6.00 per month service charge to diminish the balance. Respondent published the Notice of Appointment, Notice to Creditors and Notice to Unknown Heirs on June 21,1991. Respondent, however, failed to open an estate account, transfer title of Mr. Dyson’s automobile, and pay the expenses, taxes or debts of the estate. On September 23, 1991, the Register of Wills sent Respondent a Delinquent Notice because the time for him to file a Certificate of Compliance expired.

Respondent filed the Certificate on February 27, 1992 and filed duplicate letters of administration. Respondent did not file supplemental Certificates of Compliance. On February 27, 1992, the Respondent was directed to, but failed to, close Mr. Dyson’s estate by the Register of Wills. On or about November 21, 1991, Ms. Dial filed a complaint with the Commission claiming that the Respondent misused her funds and did not properly manage the estates of Mr. and Ms. Dyson.

Even after receipt of Ms. Dial’s complaint, the Respondent failed to return or account for Ms. Dial’s funds. In addition, Respondent continued to manage the estate and pay various expenses after Ms. Dial’s demand for return. To this day, Respondent has failed to produce statements of how the estate money was disbursed. COMPLAINT OF ALVIN McARTHUR Docket No. 92-286-3-7 The Complainant Alvin McArthur retained the Respondent to take over the representation of McArthur & McArthur, Inc. and himself in an action to foreclose the rights of redemption on several properties purchased at a Baltimore City Tax Sale in 1987.

Respondent was referred to Mr. McArthur by original counsel, Emerson L. Dorsey, Jr., due to a conflict of interest problem. On October 10, 1989, the Respondent received Mr. Dorsey’s file in McArthur & McArthur, Inc. v. Staples, No. 89129059/CE97135. Contained within the file was a list of ⁴⁶⁷ tasks that needed to be completed. Specifically, the list stated that Respondent needed to file an Amended Complaint and an Order of Publication, request that summonses be issued, and enter his appearance in the case.

Respondent did not complete any of the tasks listed. On May 15, 1990, Mr. Dorsey received a Notice of Contemplated Dismissal for Lack of Prosecution since the Respondent had not yet entered his appearance. Mr. Dorsey contacted Respondent who subsequently entered his appearance and filed a Motion to Defer Dismissal and an Amended Complaint. The court granted Respondent’s motion and deferred dismissal until April 15, 1991.

Due to the lack of any further action in the case, the court dismissed the case on April 25, 1991. As a result of the Dismissal, two properties were not redeemed and Mr. McArthur was forced to forfeit the purchase price of the tax certificates on the properties. In addition, Mr. McArthur was unable to contact the Respondent throughout Respondent’s representation.” Respondent filed many exceptions to Judge Jacobson’s factual findings, which we address seriatim: A. Complaint of William H. Williams, Jr. Respondent excepts to Judge Jacobson’s finding that Respondent provided incomplete and untimely responses to discovery, blaming instead his client for failing to provide the information to him. The evidence does not support this contention.

The Complainant testified that he provided all information Respondent requested in order to respond to the discovery requests. As Respondent points to no evidence to the contrary, Judge Jacobson’s finding is obviously supported by clear and convincing evidence. Nevertheless, even a delay by Complainant in providing the necessary information would not explain the four month delay in answering the bulk of the interrogatories for which Respondent presumably did have the necessary information, nor does it explain Respondent’s failure ⁴⁶⁸ to respond to opposing counsel’s letters and telephone calls concerning the delay. Respondent also excepts to the implication in the findings of fact that because of Respondent’s delay in providing discovery, a postponement of the trial was ordered.

Although a postponement was later granted, the first request by Mrs. Williams’ counsel, Ms. Rebecca Bryant, was denied. We therefore sustain Respondent’s exception on this point. Respondent also asserts in this exception that the reason that he did not inform Complainant of the later postponement was because Complainant had moved during this period. Complainant testified, however, that he notified Respondent of his new address one week after he moved.

He also spoke with Respondent approximately three times during the month preceding the scheduled trial date. Respondent’s exception on this point is therefore overruled. Respondent next excepts to Judge Jacobson’s finding that although Respondent knew of his August 14, 1991 scheduling conflict, he did not request a postponement until August 13, 1991. Respondent asserts that on a number of occasions he tried to contact Ms. Bryant to have her appear with him at a postponement hearing, but that she was uncooperative.

The evidence presented does not support this contention. Furthermore, in looking at the whole record in this case, this contention is inconsistent with Respondent’s general dilatory and negligent modus operandi Judge Jacobson’s finding was supported by clear and convincing evidence. In any event, the bottom line is that Ms. Bryant did appear at the August 13th postponement hearing, unlike Respondent who did not appear at an earlier postponement hearing where Ms. Bryant requested a postponement. Respondent next excepts to Judge Jacobson’s finding that at the August 13th postponement hearing Respondent knowingly misrepresented to the court that he was scheduled to begin trial in Corbin v. Thompson, when the case was only set for a calendar call.

The record is not clear as to whether Respondent told the trial judge that he was scheduled for a “trial” or ⁴⁶⁹ a “hearing” in Montgomery County. It is clear, however, that Respondent was not completely candid when he failed to describe a calendar call as the true nature of his engagement in Montgomery County. It is common knowledge to any trial lawyer that a calendar call is of far less magnitude than either a trial or a hearing, and postponing or continuing a calendar call is generally less burdensome and inconvenient to all