Attorney Grievance v. Daley

Attorney Grievance Commission of Maryland v. Thereen Dian Daley, Misc. Docket AG No. 69, September Term, 2019. Opinion by Getty, C.J. ATTORNEY DISCIPLINE — SANCTION — INDEFINITE SUSPENSION Respondent, Thereen Dian Daley, violated several provisions of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) when she made intentional misrepresentations to opposing counsel during her representation of her client, communicated directly with an opposing party whom she knew to be represented by counsel, failed to cooperate with Bar Counsel during its investigatory process, and made intentional misrepresentations to Bar Counsel. Ms. Daley’s conduct violated the following rules of professional conduct: 4.1 (Truthfulness in Statements to Others); 4.2 (Communications with Persons Represented by an Attorney); 8.1 (Bar Admission and Disciplinary Matters); and 8.4 (Misconduct).

These violations warrant an indefinite suspension. Circuit Court for Howard County Case No. C-13-CV-20-000208 Argued: September 14, 2021 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 69 September Term, 2019 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. THEREEN DIAN DALEY Getty, C.J. McDonald, Watts, Hotten, Booth, Biran, Adkins, (Senior Judge, Specially Assigned) JJ. Opinion by Getty, C.J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

Filed: October 22, 2021 2021-10-22 13:20-04:00 Suzanne C. Johnson, Clerk Invariably, this Court has emphasized the importance of an attorney’s timely answer to a Petition for Disciplinary or Remedial Action and active participation with Bar Counsel during the discovery process in an attorney discipline proceeding. See, e.g., Attorney Grievance Comm’n v. Dailey, 474 Md. 679, 690 (2021) (highlighting the attorney’s failure to comply with Bar Counsel’s investigation and the discovery process and stating, “[h]ad [the attorney] been responsive, she may have avoided the most significant rule violations” the Court found); Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 550 (2014) (demonstrating an attorney’s failure to respond to a Petition for Disciplinary or Remedial Action resulted in a default judgment against the attorney, allowing this Court to treat the averments therein as admitted); Attorney Grievance Comm’n v. Young, 473 Md. 94 , 107– 08 (2021). Failure to timely answer a Petition for Disciplinary or Remedial Action may result in an order of default against the attorney. Additionally, without active participation with Bar Counsel during the discovery process, for example by failing to respond to a request for admissions and failing to attend the hearing before the hearing judge, an attorney may be disadvantaged when he or she comes before this Court.

This disadvantage is highlighted in this attorney discipline case that involves an attorney, Thereen Dian Daley, who represented her husband in a dispute with his condominium association. During the course of her representation, Ms. Daley made knowingly false statements to opposing counsel and communicated directly with the opposing party without the consent of that party’s counsel. Ms. Daley failed to timely file an answer to the Petition for Disciplinary or Remedial Action, respond to Bar Counsel’s request for admissions, and attend the disciplinary hearing. Ms. Daley submitted false information and made knowingly false statements in her communications with Bar Counsel.

Based upon these violations found by the hearing judge, which are supported by clear and convincing evidence in the record, indefinite suspension from the practice of law in Maryland is the appropriate sanction for Ms. Daley. BACKGROUND A. Procedural Context On February 21, 2020, the Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) in this Court alleging that Ms. Daley violated the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)1. The Petition alleged that Ms. Daley violated the following Rules: 19-304.1 (Truthfulness in Statements to Others); 19-304.2 (Communications with Persons Represented by an Attorney); 19-304.4 (Respect for Rights 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) were renamed the Maryland Attorneys’ Rules of Professional Conduct and recodified without substantive changes in Title 19 of the Maryland Rules. Because Ms. Daley’s misconduct occurred both before and after the recodification of the MLRPC, she committed violations of the same rules of professional conduct under both the MLRPC and the MARPC.

For simplicity, and because there is no substantive difference in the two codifications of the rules, we shall use the shorter designations of the MLRPC, e.g., “Rule 1.1.” 2 of Third Persons);2 19-308.1 (Bar Admission and Disciplinary Matters); and 19-308.4 (Misconduct). By Order dated February 25, 2020, Ms. Daley’s matter was transmitted to the Circuit Court for Howard County, pursuant to Maryland Rule 19-722(a) for a hearing before Judge Timothy J. McCrone (the “hearing judge”) to make findings of fact and conclusions of law. Ms. Daley was served with the Petition, Writ of Summons issued by the circuit court on May 18, 2020, and this Court’s Order dated February 25, 2020. Ms. Daley submitted a Motion to Postpone her matter, which the hearing judge denied on August 12, 2020.

Ms. Daley was then served with Bar Counsel’s First Request for Admission of Facts and Genuineness of Documents on August 19, 2020. Ms. Daley did not file an answer to Bar Counsel’s request. On September 8, 2020, with no answer to the Petition having been filed, Bar Counsel filed a Motion for Order of Default, to which Ms. Daley did not file an opposition. The hearing judge entered an Order of Default against Ms. Daley on September 18, 2020, and she was issued a notice of the order the same day.

Through counsel, Ms. Daley filed an answer to the Petition on September 21, 2020, but she did not file a motion to vacate the Order of Default within the thirty-day period allowed under Rule 2-613(d). Bar Counsel filed a request for a hearing in the circuit court. Ms. Daley filed an opposition to Bar Counsel’s request and moved to dismiss the claims and default judgment against her. The hearing judge granted Bar Counsel’s request on January 19, 2021 and 2 Bar Counsel withdrew its allegation that Ms. Daley violated MARPC 19-304.4. 3 scheduled a hearing for March 3, 2021.

Bar Counsel opposed Ms. Daley’s motion to dismiss and to vacate default judgment, and Ms. Daley filed a reply to Bar Counsel’s opposition. Ms. Daley also filed a “Supplemental (Merit) Opposition to AGC’s ‘Petition for Disciplinary or Remedial Action’” on February 27, 2021. On March 3, 2021, the hearing judge heard arguments from Ms. Daley’s attorney regarding her motion to dismiss and to vacate the default judgment. The hearing judge denied the motion and continued with the hearing as scheduled.

Ms. Daley did not attend the hearing or present mitigating evidence. Under Rule 2-424(b), the matters for which Bar Counsel’s requested admissions were deemed admitted, and those admissions were received into evidence. On March 4, 2021, Ms. Daley filed a motion for reconsideration regarding the hearing judge’s March 3, 2021 decisions, and Bar Counsel filed an opposition on March 18. On March 19, the hearing judge denied Ms. Daley’s motion.

Bar Counsel filed Proposed Findings of Fact and Conclusions of Law on March 25, and the hearing judge issued a judgment adopting those findings of fact and conclusions of law on March 30. On April 8, Ms. Daley, through counsel, filed exceptions to the hearing judge’s findings of fact and conclusions of law. This Court heard oral argument in this matter on September 14, 2021. 4 B. Factual Findings We summarize the hearing judge’s factual findings below.3 Ms. Daley was admitted to the Maryland Bar on December 17, 2002. At all times relevant to this matter, Ms. Daley maintained a post office box address in Howard County that she used in connection with her law practice. 1.

Waterford Landing In 2008, Austin Valentine purchased a condominium located in Waterford Landing Condominium, Inc. (“Waterford Landing”), a condominium community located in Essex, Maryland. Ms. Daley lived with Mr. Valentine in his condominium from 2011 until 2014. The pair married in 2014.4 Waterford Landing has a governing body called the Council of Unit Owners of Waterford Landing (the “Council”). Wallace H. Campbell & Company, Inc. (“Campbell”), a property management company, served as managing agent for Waterford Landing at all times relevant to this case.

Susan G. Saltsman, Management Supervisor for Campbell, oversaw the management of Waterford Landing. The law firm 3 The hearing judge adopted Bar Counsel’s document titled “Petitioner’s Proposed Findings of Fact and Conclusions of Law” in its entirety. Thus, the findings of fact and conclusions of law discussed in this opinion are presented from that source. 4 Bar Counsel’s pleadings state Ms. Daley and Mr. Valentine were married in 2014 but are unclear regarding where Ms. Daley and Mr. Valentine resided after 2014. 5 of Oliveri & Associates, LLC, and attorneys John Oliveri and Timothy Larsen, represented both the Council and Campbell. The Council elects a Board of Directors (the “Board”) to implement Waterford Landing’s declaration, bylaws, and rules and regulations (collectively, the “governing documents”).

Waterford Landing’s leasing policy required owners who leased their units to pay a $500.00 move-in fee and provide Campbell with (1) proof of a criminal background check, (2) proof of the tenant’s liability insurance, (3) a copy of the lease agreement, and (4) an addendum to the lease agreement showing the tenant read and understood Waterford Landing’s rules and regulations. The bylaws permit the Board to impose charges and fines for late payment of the assessments and for violations of the governing documents. A unit owner may be assessed a $50.00 fine for an initial violation of the governing documents, a $100.00 fine for a repeated violation, and a $20.00 per day fine until the unit owner cures the violation. 2. Mr. Valentine’s Violations In December 2015, the Board discovered Mr. Valentine did not comply with the leasing policy before allowing tenants to occupy his unit, and his neighbors filed several noise complaints against his unit.

Ms. Saltsman, on behalf of the Council, wrote to Mr. Valentine on three occasions between December 29, 2015 and February 23, 2016 concerning complaints about Mr. Valentine’s tenants and his failure to comply with 6 Waterford Landing’s leasing policy. Mr. Valentine did not address his violations within the timeframe provided in Ms. Saltsman’s correspondence. The Board then scheduled a hearing for May 25, 2016 to determine whether Mr. Valentine violated the governing documents. Mr. Valentine received written notice of the hearing on March 22, 2016 and April 26, 2016.

Mr. Valentine did not attend the hearing. In his absence, the Board found he violated provisions of the governing documents and directed him to address the noise complaints and comply with the leasing policy within ten days. For the noise violation, he was charged a $50.00 fee and a $20.00 per day fee for ongoing violations. For the failure to comply with the leasing policy, he received an additional fine of $10.00 per day for the ongoing violations.

The Board noted that the fines would stop accruing upon confirmation that Mr. Valentine cured the violations. Mr. Valentine failed to remedy the violations, and on July 19, 2016, Campbell informed Mr. Valentine in writing that his fines were delinquent in the amount of $420.00. Campbell further advised that, if the amount was not paid within fifteen days, Mr. Valentine’s account would be referred to an attorney for collection. In August 2016, Waterford Landing referred Mr. Valentine’s account to Oliveri & Associates for collection of the unpaid amounts.

On September 1, 2016, Mr. Oliveri wrote to Mr. Valentine to inform him that Oliveri & Associates would represent Waterford Landing in connection with Mr. Valentine’s delinquent account. Mr. Oliveri stated that Mr. Valentine should contact him to make payment arrangements. At this time, Mr. Valentine owed $1,295.00 in fines, fees, and costs. Mr. Oliveri also mentioned that the Council intended to record a lien against Mr. 7 Valentine’s property if the past due amounts were not paid within fifteen days or disputed within thirty days.

Mr. Valentine did not pay or dispute the fees, and on September 20, 2016, Mr. Larsen served Mr. Valentine with the Council’s Notice of Intent to Create a Lien. Again, Mr. Valentine failed to take steps toward resolving his debt, and a lien was recorded in the land records for Baltimore County on October 28, 2016. Pursuant to Waterford Landing’s bylaws, Oliveri & Associates mailed a notice of the lien to Mr. Valentine’s mortgage holder, Rosedale Federal Savings and Loan Association (“Rosedale Federal”). Rosedale Federal contacted Mr. Larsen to inquire about Mr. Valentine’s balance on November 2, 2016 and November 9, 2016.

Mr. Larsen informed Rosedale Federal on November 8, 2016 that Mr. Valentine’s balance was $4,498.06 and provided a breakdown of the amount. The same day, Rosedale Federal paid the balance in full by withdrawing funds from an escrow account Mr. Valentine held there in connection with his mortgage. 3. Ms. Daley’s Involvement On October 31, 2016, Ms. Daley called Mr. Larsen and advised that she represented Mr. Valentine in connection with his dispute. On November 9, 2016, Mr. Larsen wrote to Ms. Daley and provided the balance statement for Mr. Valentine’s account and enclosed various documents that Ms. Daley requested during the October 31 telephone call.

Ms. Daley sent several emails to Mr. Larsen in which she requested the balance owed and advised that the tenants living with Mr. Valentine were his daughter and his daughter’s mother, but Ms. Daley refused to provide their names. Ms. Daley wrote to Mr. Larsen on December 20, 2016 to ask why Mr. Valentine’s monthly condominium charges were returned to him for “the past several months.” Mr. 8 Larsen replied the next day and stated he contacted Campbell to get additional information and asked that all payments thereafter be sent to his office. Again, on January 5, 2017, Ms. Daley contacted Mr. Larsen to inquire why the Council’s bank would not accept Mr. Valentine’s payments. Ms. Daley stated that she contacted the Consumer Protection Division of the Maryland Office of the Attorney General regarding this issue.

Ms. Daley wrote to Mr. Larsen on January 18, 2017 and requested additional information relating to Mr. Valentine’s account. Mr. Larsen responded on January 27 and provided a breakdown of Mr. Valentine’s balance owed, requested that Mr. Valentine reveal the names of the unauthorized tenants living in his unit, and explained that the Council does not accept monthly assessment payments from unit owners who are in collection proceedings and that all payments should be directed to Oliveri & Associates. In February 2017, the Council stopped imposing fees on Mr. Valentine when it learned that the unauthorized tenants vacated the premises. However, in April 2017, Mr. Valentine leased his property to a new tenant without following Waterford Landing’s leasing policy.

On April 19, 2017, Ms. Daley attended the Council’s open meeting. During the meeting, which did not relate to Mr. Valentine’s violations, Ms. Daley accused Ms. Saltsman of intentionally causing her to trip and fall on the stairs outside of Mr. Valentine’s unit on September 18, 2016. Ms. Saltsman stated that she believed Ms. Daley submitted a false insurance claim against the Council’s insurance company regarding the September 2016 incident. Ms. Daley did not cooperate with the insurance company’s request for information, the claim was closed, and Ms. Daley did not take additional steps in connection with the claim. 9 Ms. Daley filed suit against Ms. Saltsman and Campbell on May 15, 2017 in the District Court of Maryland for Baltimore County.

She alleged defamation based on Ms. Saltsman’s statements at the meeting on April 19, 2017. On August 18, 2017, Mr. Larsen appeared on behalf of Ms. Saltsman and Campbell for trial. Before trial, Mr. Larsen attempted to settle with Ms. Daley, but she stated she would dismiss her lawsuit only if Ms. Saltsman was terminated from her position at Campbell. Mr. Larsen did not agree to Ms. Daley’s offer.

When the case was called, Ms. Daley requested a postponement because she was taking medication for a toothache. The trial was rescheduled for September 15, 2017. On September 15, 2017, Mr. Larsen appeared, as did Ms. Daley with her counsel for the case, Joseph A. Scalia, II. The parties ultimately settled prior to trial.

Ms. Saltsman agreed to privately apologize to Ms. Daley if the apology was subject to a confidentiality agreement signed by Ms. Daley. Trial was postponed again until September 29, 2017 to finalize the settlement agreement and dismiss the case. Before Ms. Saltsman could apologize, Mr. Scalia advised Mr. Larsen that Ms. Daley wished to dismiss the case. Ms. Saltsman never apologized to Ms. Daley, and Mr. Larsen never prepared a confidentiality agreement for Ms. Daley to sign.

Ms. Daley dismissed her complaint with prejudice on September 28, 2017. During September 2017, the Council was still addressing Mr. Valentine’s violations of the leasing policy regarding the new unauthorized tenant. The Board scheduled a hearing for November 6, 2017 to determine whether Mr. Valentine violated the governing documents and whether any fines should be imposed. Ms. Saltsman advised Mr. Valentine 10 of the hearing by letter dated October 19, 2017.

On October 26, Ms. Daley responded in writing on behalf of Mr. Valentine to inform the Council that Mr. Valentine could not attend the hearing due to a death in his family. The Board rescheduled the hearing for November 30, 2017. On October 19, 2017, Ms. Daley wrote to Rosedale Federal regarding Mr. Valentine’s dispute with Ms. Saltsman and Campbell. She stated in the letter that Waterford Landing engaged in fraud, that the lien was invalid, and that Rosedale Federal should not have paid Oliveri & Associates or Waterford Landing.

Ms. Daley also accused the Council of filing a lien because Ms. Saltsman was upset that Ms. Daley filed an insurance claim related to her fall on September 2016 outside of Mr. Valentine’s unit. In the letter, Ms. Daley claimed that she dropped her defamation claim against Ms. Saltsman and Campbell after Ms. Saltsman admitted in writing to lying when she accused Ms. Daley of filing a fraudulent insurance claim. On October 27, 2017, Rosedale Federal, through counsel, contacted Mr. Larsen regarding the allegations stated in Ms. Daley’s October 19 letter. Mr. Larsen determined that the matter should be litigated based on Ms. Daley’s allegations of fraud and sent a letter to Rosedale Federal on November 2 returning the funds received in connection with Mr. Valentine’s account.

The night before the Board’s November 30, 2017 hearing was to take place, Ms. Daley emailed Mr. Larsen to inform him that Mr. Valentine would not attend the hearing the following day. On November 30, the Board conducted the hearing without Mr. Valentine and determined he was in violation of the leasing requirements and imposed a 11 fine of $20.00 per day until Mr. Valentine cured the violations. On December 7, Mr. Larsen advised Ms. Daley of the Board’s determination and stated that the Board would waive any new fines if Mr. Valentine complied with the leasing requirements by December 22. Mr. Valentine complied with the leasing requirements, and the Board waived the new fines.

In late December 2017, Ms. Daley and Mr. Larsen exchanged a series of emails. Ms. Daley claimed she spoke with Gilbert Allen and his supervisor in the Maryland Office of the Attorney General regarding Mr. Valentine’s inability to pay his monthly dues through the system operated by the Council’s bank. Ms. Daley also asserted that she contacted Brian E. Frosh, the Attorney General of Maryland, regarding the issue. In an email dated December 21, 2017, Ms. Daley stated she would contact Mr. Allen in the Attorney General’s office no later than noon the next day if she did not receive confirmation of Mr. Valentine’s payments being approved.

Ms. Daley sent another email the next day stating she spoke with Mr. Allen’s supervisor, and she instructed Mr. Larsen to contact them. Mr. Larsen called Mr. Allen who confirmed he had not spoken with Ms. Daley about the dispute involving Mr. Valentine. Then, Mr. Larsen responded to Ms. Daley via email to convey the substance of his conversation with Mr. Allen. In February 2018, Ms. Daley began contacting Ms. Saltsman directly and stated she would no longer communicate with Ms. Saltsman through her attorney at Oliveri & Associates.

Mr. Larsen repeatedly requested Ms. Daley communicate through him, but Ms. Daley continued to contact Ms. Saltsman directly. After receiving an email from Mr. Larsen detailing why Mr. Valentine could not pay his monthly dues through the online system, Ms. Daley replied by email dated February 14, 2018 that “I do not represent Mr. 12 Valentine, I represent my family’s interest. Those are two different things.” Mr. Larsen responded by email the next day and stated that there was no reason for him to contact Ms. Daley about Mr. Valentine’s issues if she did not represent him. That same day, she replied, “Mr. Valentine is my family and I represent my family.” On July 1, 2019, Rosedale Federal filed a foreclosure action against Mr. Valentine.

In the foreclosure action, a suggestion of bankruptcy was filed, and the matter was stayed on November 11, 2019. 4. Bar Counsel’s Investigation In April 2018, Bar Counsel initiated an investigation of Ms. Daley’s conduct related to her representation of Mr. Valentine. Bar Counsel wrote to Ms. Daley on April 11 and attached copies of her email correspondence with Mr. Larsen. Bar Counsel requested that Ms. Daley respond in writing by May 2, 2018 addressing her communications in light of the MARPC.

On June 13, 2018, Ms. Daley faxed Bar Counsel a letter, dated the day before, that stated she dropped her defamation case against Ms. Saltsman in 2017 after Ms. Saltsman provided a written statement acknowledging she lied about Ms. Daley. On June 20, Ms. Daley further responded to Bar Counsel by stating Campbell had not raised another issue or filed