Attorney Grievance Commission v. Woolery

McDonald, J. No one who has practiced law for any appreciable time can claim to have never made a mistake in that practice. A mistake in the practice of law is not necessarily professional misconduct. However, once aware of a mistake that harms another and given the opportunity to mitigate it, a lawyer who decides to do nothing may be guilty of misconduct. Respondent Benjamin Woolery was appointed as personal representative for an estate that had a single asset—real property that had served as the decedent’s home.

There were five heirs—adult children of the decedent—with different ideas as to how to dispose of that property. In handling this difficult estate, Mr. Woolery made a mistake. In preparing the property for sale, he came upon a tractor that had been stored there by one of the adult children. Without determining the tractor’s ownership or value, he impulsively sold it to an individual who happened to be present for what turned out to be a small fraction of the tractor’s actual value.

Shortly thereafter, Mr. Woolery became aware of his mistake. Mr. Woolery was promptly informed of the ownership and value of the tractor. Given the opportunity to remedy the situation, Mr. Woolery chose not to do so, apparently out of personal animus toward its owner. We hold that the choice that Mr. Woolery made was misconduct that merits a reprimand.

I Background A. Procedural Context On June 24, 2016, the Attorney Grievance Commission (“Commission”) through Bar Counsel filed a Petition for Disciplinary or Remedial Action with this Court against Mr. Wool-ery. The Commission charged Mr. Woolery with violations of the following Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”): 1.1 (Competence); 1.3 (Diligence); 1.7 (Conflict of Interest); 3.3 (Candor toward the Tribunal); and 8.4(a)-(d) (Misconduct). 1 On August 10, 2016, Mr. Woolery filed an answer to the petition in which he admitted most of the factual allegations, qualified his agreement with a few of them, and denied the conclusion of the petition that those facts constituted professional misconduct. In accordance with Maryland Rule 19—722(a), we designated Judge Hassan A. El-Amin of the Circuit Court for Prince George’s County to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law. 2 The hearing took place over three days on December 7-8, 2016 and January 13, 2017. At the hearing, the parties submitted a detailed stipulation of facts and introduced in evidence various documentary exhibits, including much of the record of Orphans’ Court and District Court proceedings related to the charges against Mr. Woolery.

Several witnesses, including Mr. Woolery, testified. On March 20, 2017, the hearing judge issued a memorandum opinion in which he made detailed findings of fact and recommended conclusions of law. In his recommended conclusions of law, the hearing judge concluded that Mr. Woolery violated MLRPC 8.4(d). The hearing judge found that the Commission failed to prove by clear and convincing evidence that Mr. Woolery violated MLRPC 1.7, 3.3, and 8.4(a), (b), and (c).

He also found in Mr. Woolery’s favor for the most part with respect to the alleged violations of MLRPC 1.1 and 1.3. Neither party filed exceptions to the hearing judge’s findings of fact. Mr. Woolery filed exceptions to the hearing judge’s conclusions of law to the extent that the hearing judge found violations of the MLRPC. This Court held oral argument on September 6, 2017.

B. Facts Neither party contests the hearing judge’s findings of fact and, accordingly, we treat those findings as established. Maryland Rule 19-741(b)(2)(A). We summarize those findings, along with the parties’ stipulations and admissions, and other matters uncontested in the record. Mr. Woolery ⅛ Law Practice Mr. Woolery has been a member of the Maryland Bar since December 1988.

During the period pertinent to this case, Mr. Woolery was a junior partner in the firm of McGill and Woolery in Upper Marlboro. Mr. Woolery has had substantial experience in the field of estates and trusts law. The Roy Chambers Estate On July 3, 2006, Roy L. Chambers, Jr., a resident of Prince George’s County, passed away. His wife having predeceased him, Mr. Chambers was survived by five adult children: Carolyn Bowman, Mary Nicodemus, David Lee Chambers, Kenneth J. Chambers, and Thomas Chambers.

Mr. Chambers had executed a will on January 23, 1986. According to Mr. Chambers’ will, his five surviving children were to receive equal shares of his residuary estate. A few days after Mr. Chambers’ death, the Register of Wills for Prince George’s County opened the Estate of Roy L. Chambers, Jr., Estate No. 00000007907. Mr. Woolery becomes Personal Representative of the Estate The estate had a succession of personal representatives, including two stints by Mr. Woolery.

Initially, one of Mr. Chambers’ daughters—Carolyn Bowman—was appointed personal representative of the estate pursuant to the terms of the will. Mr. Woolery was appointed as a successor personal representative on December 13, 2007, until he was replaced by another attorney on April 28, 2008. 3 He was later reappointed as personal representative of the estate on March 18, 2010, and served until his final accounting in late 2016. The Property of the Estate When Mr. Woolery became personal representative of the estate for the second time, it had one asset—a parcel of real property that Mr. Chambers had owned free of any encumbrances at the time of his death. The property was located at 7301 Webster Lane, Fort Washington, Maryland 20744 (“the Webster Lane property”).

The Webster Lane property consisted of 1.95 acres which was improved by a house, a garage with a residential apartment, and a large shed, Mr. Chambers and his wife had once resided in the house. Other than the Webster Lane property, the estate had no other assets. 4 The Family Dispute A rift among the surviving children hindered the efforts of Mr. Woolery and the prior personal representatives to dispose of the Webster Lane property and close the estate. The heirs had split into two groups. One group, which the hearing judge referred to as the “Bowman Camp,” included Carolyn Bowman, Kenneth J. Chambers (who both lived in Michigan), and David Lee Chambers (who lived in Virginia).

The Bowman Camp wanted to sell the property and split the proceeds of the property among all five children. The other group, referred to as the “Nicodemus Camp,” included Mary Nicodemus and Thomas Chambers, who lived in Prince George’s County and Charles County, respectively. The Nicodemus Camp contended that the Webster Lane property should be conveyed to Mary Nicodemus and Thomas Chambers because members of the Bowman Camp had already received the benefit of Mr. Chambers’ brokerage accounts by operation of law outside of the estate. Over the years after Mr. Chambers’ death, the Nicodemus Camp made various efforts to procure the Webster Lane property, including suing the estate to force conveyance of the property, requesting dismissal of personal representatives, and objecting to accountings.

Those efforts made it difficult for any of the personal representatives to resolve the estate. Mr. Woolery’s Effort to Sell the Webster Lane Property When he became personal representative for the estate the second time in March 2010, Mr. Woolery intended to sell the Webster Lane property. He encountered several problems in this effort. In addition to the family discord over whether to sell the property at all, the estate had no other assets to finance the expense of preparing and advertising the property for sale.

Mr. Woolery’s effort to obtain a bank loan was rejected and he was unwilling to advance money to the estate himself. 5 Thus, for any professional services related to the property, Mr. Woolery would have to hire those professionals on a contingency basis. Moreover, by the time Mr. Woolery became personal representative for the estate the second time, Thomas Chambers had begun renting one or more of the buildings on the property to various tenants. While Thomas Chambers and the tenants thus helped maintain the property, their presence became an obstacle to Mr. Woolery’s effort to dispose of it. Initially, Mr. Woolery pursued the possibility of subdividing the property but ultimately dropped that idea.

In September 2011, he obtained permission from the Orphans’ Court to sell the Webster Lane property “as is” with a 10% commission. Over the next two and a half years, Mr. Woolery made a few visits to the property and entered into discussions with a realtor. At the hearing of this case, Mr. Woolery testified that, in light of the ongoing dispute among Mr. Chambers’ adult children concerning disposition of the property, he had decided to “lay low in the grass.” As the hearing judge noted, Mr. Woolery adopted a “go slow, stealth-like, indirect, and non-confrontational approach.” Mr. Woolery felt that this approach was best, having developed some concern, based on statements of David Chambers and Carolyn Bowman, that Thomas Chambers might resort to violence, and therefore wished to avoid contact with Thomas Chambers. Mr. Woolery Visits the Property in April 201⅛ to Take Control In April 2014, Mr. Woolery decided to proceed with selling the Webster Lane property.

The property had remained under the control of Thomas Chambers. A tenant named Earl-mont Bell was then living in the garage apartment on the property. On April 25, 2014, Mr. Woolery visited the Webster Lane property to secure possession of the property by changing the locks and posting “no trespassing” signs. He spoke with Mr. Bell that day and agreed to let him remain on the property for three months while a sale was accomplished.

Mr. Woolery had invited a locksmith to the property that day to change the locks. He also hoped to sell surveying equipment that had belonged to the decedent and that he believed might still be on the property. To that end, Mr. Woolery had invited an acquaintance, Andrew Duley, a surveyor who Mr. Woolery thought might be interested in purchasing that equipment. Mr. Duley invited another surveyor, Stephen Wilson, to accompany him.

Mr. Woolery met Mr. Wilson for the first time that day. Mr. Woolery Discovers and Sells a Tractor and Backhoe for $500 While at the Webster Lane property that day, Mr. Woolery found a Kubota tractor with an attached backhoe stored inside the large shed. Mr. Woolery had not seen the tractor and backhoe on the property before and did not know who owned it or how much it was worth. He asked Mr. Duley and Mr. Wilson if they were interested in purchasing the tractor and backhoe.

Mr. Duley was not interested, but Mr. Wilson was. Mr. Woolery sold the tractor and backhoe to Mr. Wilson for $500 cash; Mr. Wilson arranged for a tow truck to remove it from the property. 6 Mr. Woolery did not create any documentation of the sale. Asked at the hearing why he had sold the tractor and backhoe in that manner, Mr. Woolery testified: “There [was] no real thought process at all. It [was] an automatic now let’s get rid of that thing.” After selling the tractor and backhoe, Mr. Woolery used cash from the sale to pay the locksmith for changing the locks on the Webster Lane property and to reimburse himself for the purchase of the “no trespassing” signs.

Unbeknownst to Mr. Woolery at the time, the tractor and backhoe actually belonged to Thomas Chambers, and not the estate. Thomas Chambers had purchased it in January 2004 for $15,200.00 and was temporarily storing it at the Webster Lane property while fixing a sinkhole there. Mr. Woolery is Informed of the Value and Owner of the Tractor Within a few days, Thomas Chambers learned that Mr. Woolery had sold his tractor and backhoe. Thomas Chambers promptly contacted Mr. Woolery concerning his desire for its return.

In addition, on May 7, 2014, Thomas Chambers sent Mr. Woolery a copy of his purchase invoice for the tractor and backhoe, documenting his ownership and the price he had paid. Mr. Woolery took no action to recover the tractor and backhoe or to contact Mr. Wilson, either directly or through Mr. Duley. Mr. Woolery explained to Thomas Chambers that he would not attempt to obtain return of the tractor and backhoe, but that Thomas Chambers could file a claim in the Orphans’ Court against the estate. At the hearing of this case, Mr. Woolery testified that he believed that, because Thomas Chambers had been renting the Webster Lane property—an asset of the estate—and presumably collecting rent from the tenants, Thomas Chambers owed the estate money.

Mr. Woolery’s rationale for refusing to try to recover the tractor and backhoe was that any loss Thomas Chambers suffered from its sale was offset by the rent money he had collected with respect to the Webster Lane property which, in Mr. Woolery’s view, rightfully belonged to the estate. Mr. Woolery Sells the Webster Lane Property In late summer 2014, Mr. Woolery sold the Webster Lane property to an entity called Wholesale Portfolio Partnership. The deed transferring the property was dated August 30, 2014 and showed a sale price of $166,000. Thomas Chambers sues Mr. Woolery In the meantime, Thomas Chambers had sued Mr. Woolery individually, in the District Court of Maryland for Prince George’s County, to recover the value of the tractor and backhoe.

Thomas Chambers v. Benjamin Woolery, Case No. 05-02-0010748-2014. The case went to trial in the District Court on October 21, 2014. At that trial, Mr. Woolery testified about how he had sold the tractor and backhoe. Mr. Woolery stated that he had “auctioned” it off to the “group of surveyors who were invited to the premises.” On cross-examination, Mr. Woolery reiterated his description of an “auction” before a group of surveyors and suggested that their identities were unknown to him.

He testified as follows: Counsel: And once,—oh, who did you sell the tractor to? Mr. Woolery: I don’t know. It was group of surveyors who were invited to the premises and I was looking for cash dollars to meet the estate’s obligations. I wasn’t looking— Counsel: You don’t know the person’s— Mr. Woolery: —to take names and numbers.

Counsel: You don’t know the person’s name? Mr. Woolery: No, sir. Counsel: Don’t know the person’s phone number? Mr. Woolery: No, sir.

As Mr. Woolery later admitted during Bar Counsel’s investigation, he remembered Mr. Wilson’s first name at some point and, at the very least, could have located him through Mr. Duley. The District Court entered judgment in favor of Thomas Chambers in the amount of $9,700.00—based on the court’s estimate of the value of the tractor and backhoe when Mr. Woolery sold it. At the trial, Mr. Woolery repeatedly told the District Court that he had sold the tractor in his capacity “as a fiduciary,” and insisted that any judgment be entered against him only in his capacity as personal representative of the estate. The District Court acceded to his request, effectively making it a judgment against the estate.

Mr. Woolery Makes a Final Accounting In his final accounting as personal representative of the estate, Mr. Woolery referred to the presumed rental income received by Thomas Chambers, which he characterized “waste and defalcation,” to completely offset Thomas Chambers’ share of the estate as well as the judgment awarded to Thomas Chambers in the District Court action. In that accounting, Mr. Woolery requested—and was later awarded— approximately $25,000 in fees against the estate. II Violations of MLRPC The hearing judge explicitly concluded that Mr. Woolery violated MLRPC 8.4(d), and also indicated, somewhat less explicitly, that Mr. Woolery’s conduct failed to meet the standards of competence and diligence required by MLRPC 1.1 and 1.3 in a certain respect. Before us, Mr. Woolery argues that the hearing judge did not find a violation of MLRPC 1.1 or 1.3 and excepts to the hearing judge’s conclusion that he violated MLRPC 8.4(d). 7 In an attorney discipline proceeding, we review the hearing judge’s conclusions of law without deference.

Attorney Grievance Comm’n v. McDowell, 439 Md. 26, 36 , 93 A.3d 711 (2014). For the following reasons, we overrule Mr. Woolery’s exception and conclude that he violated MLRPC 1.1, 1.3, 8.4(a), as well as 8.4(d). MLRPC 1.1 and 1.3 The hearing judge’s conclusions as to the alleged violations of MLRPC 1.1 and 1.3 are somewhat ambiguous. The hearing judge indicated that Mr. Woolery’s conduct “in the main” did not violate MLRPC 1.1 or