Attorney Grievance v. Hensley

Attorney Grievance Commission of Maryland v. Samuel Edward Hensley, Misc. Docket AG No. 65, September Term 2018. Opinion by Raker, J. (Senior Judge, Specially Assigned) ATTORNEY MISCONDUCT – DISCIPLINE – DISBARMENT – Respondent Samuel Edward Hensley violated the Maryland Attorneys’ Rules of Professional Conduct 19- 301.1, 19-301.3, 19-301.4, 19-301.5(a), 19-301.15(a) and (d), 19-301.16(d), 19-308.1(b), and 19-308.4(a), (c), and (d), and Section 10-306 of the Maryland Business Occupations and Professions Article.

These violations arose from respondent’s misconduct in two separate client matters, in which respondent failed to appear at a meeting with a client and at the client’s court hearing; failed to inform the client about his absences; failed to respond to the two clients’ numerous attempts to contact him; failed to return his collected fee to a client after performing no legal service; failed to deposit a client’s retainer fee into an attorney trust account; failed to notify a client’s medical provider about settlement funds received and to distribute its portion; abandoned a client’s case without notice and without returning unearned fees; failed to respond to the Bar Counsel’s requests for information and documentation; and misrepresented to a client that he was licensed to practice law in a state where he was not. The proper sanction for these violations is disbarment. Circuit Court for Prince George’s County Case No. CAE19-07923 Argued: February 6, 2020 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 65 September Term, 2018 ______________________________________ ATTORNEY GRIEVANCE COMMISION OF MARYLAND v. SAMUEL EDWARD HENSLEY ______________________________________ McDonald, Watts, Hotten, Getty, Booth, Biran, Raker, Irma S.

(Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Raker, J. ______________________________________ Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document Filed: March 27, 2020 is authentic. Suzanne Johnson 2020-03-27 13:14-04:00 Suzanne C. Johnson, Clerk On February 21, 2019, the Attorney Grievance Commission, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action against respondent Samuel Edward Hensley. On February 6, 2020, we held oral argument in this matter and disbarred respondent by per curiam order dated that day. In this opinion, we explain the reasons for that Order.

The Commission charged respondent with violating the Maryland Business Occupations and Professions Article, Section 10-306 (Trust Money Restrictions) and the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 19-301.1 (Competence), 19-301.3 (Diligence), 19-301.4 (Communication), 19-301.5(a) and (b) (Fees),1 19- 301.15(a) and (d) (Safekeeping Property), 19-301.16(d) (Declining or Terminating Representation), 19-308.1(b) (Bar Admission and Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct). On March 6, 2019, pursuant to Md. Rule 19-727, we referred the matter to Judge Cathy H. Serrette in the Circuit Court for Prince George’s County to make findings of fact and proposed conclusions of law. Respondent failed to participate in the proceedings in any manner.2 On September 6, 2019, Judge Serrette held an 1 The Commission subsequently withdrew its 19-301.5(b) charge. 2 On May 2, 2019, pursuant to Md. Rule 19-723(b), respondent was served with the Writ of Summons by the Circuit Court for Prince George’s County, Order of the Court of Appeals, Petition for Disciplinary or Remedial Action, Petitioner’s Interrogatories, Petitioner’s Request for Production of Documents, and Petitioner’s Request for Admissions of Facts and Genuineness of Documents. On June 10, 2019, after receiving nothing from respondent, the Commission filed a Motion for Order of Default.

By Order entered on July 8, 2019, Judge Serrette granted the Commission’s motion and set an evidentiary hearing date for September 6, 2019. Pursuant to Md. Rule 2-613, the court entered a notice of default, to which respondent did not respond. evidentiary hearing, which respondent failed to attend,3 and found that respondent had violated MARPC 19-301.1, 19-301.3, 19-301.4, 19-301.5(a), 19-301.15(a) and (d), 19- 301.16(d), 19-308.1(b), and 19-308.4(a), (c), and (d), and Section 10-306 of the Maryland Business Occupations and Professions Article.4 On February 6, 2020, this Court held oral argument in this matter, which respondent again failed to attend, and disbarred respondent by per curiam order. I. Judge Serrette made the following findings of fact and conclusions of law: “FINDINGS OF FACT[5] “The Respondent was admitted to the Bar of the State of Maryland on December 17, 2014. At all times relevant 3 Pursuant to Md. Rule 2-424(b), Judge Serrette admitted and received as evidence each matter for which an admission was requested in Petitioner’s Request for Admissions of Facts and Genuineness of Documents. 4 Judge Serrette found that respondent violated MARPC 19-301.2 (Scope of Representation).

The Commission, however, had not brought this charge in its Petition for Disciplinary or Remedial Action, despite later including it in its Proposed Findings of Fact and Conclusions of Law. 5 “October 20, 2017, was the last contact with Respondent noted in the Request for Admissions of Facts and Genuineness of Documents. Respondent was served through the Client Protection Fund when he could not be located otherwise. These findings presume, in part, that Respondent is alive and was able to respond to Bar Counsel and the Request for Admissions of Fact and Genuineness of Documents.” 2 hereto, he maintained an office for the practice of law in Prince George’s County . . . and another . . . [in] Baltimore, Maryland. The Yemane Behere Matter “On July 14, 2016, Yemane Behere, a resident of Maryland, was involved in a motor vehicle accident in Oklahoma in which he sustained injuries.

Upon his return to Maryland, Mr. Behere retained the Respondent to represent him in the matter. Mr. Behere and the Respondent agreed to a contingency fee whereby the Respondent would receive one third of any funds recovered. The Respondent is not now, nor has he ever been, admitted to the bar of the state of Oklahoma. The Respondent misrepresented to Mr. Behere that he was licensed to practice law in Oklahoma. “During the pendency of the matter, Mr. Behere received medical treatment from several different healthcare providers, including Omni Healthcare (“Omni”).

Mr. Behere and the Respondent signed a lien agreement to ‘deduct immediately from the proceeds of any settlement and/or judgment, any and all amounts due to and owing to OMNI[.]’ On or about September 1, 2017, the Respondent, on behalf of Mr. Behere, settled the matter and received a settlement check 3 in the amount of $200,000. In September 2017, Mr. Behere met with the Respondent and signed a settlement statement. The settlement statement provided that the Respondent would receive $56,636 for attorney’s fees, $73,364 would be paid to medical providers, and $70,000 remained for Mr. Behere. “On or about October 20, 2017, the Respondent provided Mr. Behere with a check in the amount of $70,000. The Respondent failed to advise Omni or any of the other healthcare providers that he was in receipt of the settlement funds.

The Respondent failed to disburse any funds to any healthcare providers. Beginning in the fall of 2017, the healthcare providers began contacting the Respondent for payment of the outstanding debts. Beginning in the fall of 2017, Mr. Behere made several unsuccessful attempts to contact the Respondent. Omni attempted to contact the Respondent several times but was unsuccessful.

The Respondent misappropriated the funds owed to Omni. Representation of John Mbawe “On March 5, 2017, John Mbawe was arrested and charged with second degree assault in the District Court of Maryland for Prince George’s County, State v. Mbawe, Case 4 No. 3E00600337. The victim of the alleged assault also filed a petition in the District Court for a peace order against Mr. Mbawe. A final peace order hearing was scheduled for March 13, 2017. “On March 9, 2017, Mr. Mbawe retained the Respondent to represent him in both the criminal case and the peace order hearing.

Mr. Mbawe executed a retainer agreement and paid the Respondent $1,000 toward the $2,500 retainer fee. The retainer agreement provided that the remainder of the fee was to be paid on or before April 7, 2017. The Respondent failed to deposit and maintain Mr. Mbawe’s funds in an attorney trust account until earned. “Mr. Mbawe and the Respondent agreed to meet at the Respondent’s office in Upper Marlboro on March 12, 2017, to prepare for the peace order hearing. On March 12, 2017, Mr. Mbawe arrived at the Respondent’s office at the designated time but the Respondent failed to appear for the meeting.

On March 12, 2017, Mr. Mbawe attempted to contact the Respondent, leaving several voicemail messages and text messages. The Respondent failed to respond to Mr. Mbawe in any manner. 5 “On March 13, 2017, Mr. Mbawe appeared pro se in the District Court for the peace order hearing. The Respondent failed to appear at the hearing. The Respondent failed to advise Mr. Mbawe of his whereabouts on March 13, 2017.

At the conclusion of the hearing, the court issued a final peace order against Mr. Mbawe. “After the hearing, Mr. Mbawe made several attempts to contact the Respondent to request a refund of the retainer fee. The Respondent failed to respond to Mr. Mbawe’s phone calls and text messages and failed to provide Mr. Mbawe a refund. On April 11, 2017, Mr. Mbawe retained successor counsel to represent him in the pending criminal case. Bar Counsel Investigation “On November 7, 2017, Rich Resigno filed a complaint with Bar Counsel on behalf of Omni Healthcare.

On November 17, 2017, Bar Counsel sent a letter to the Respondent’s Prince George’s County office with a copy of Mr. Resigno’s complaint and requested a written response no later than December 11, 2017. The November 17, 2017 letter was returned to Bar Counsel as undelivered on December 1, 2017. 6 “On December 14, 2017, Bar Counsel sent a letter to the Respondent’s Baltimore City address with a copy of Mr. Resigno’s complaint and requested a written response no later than January 8, 2018. The Respondent failed to respond to Bar Counsel’s December 14, 2017 letter. “On December 11, 2017, Mr. Behere filed a complaint with Bar Counsel. On January 2, 2018, Bar Counsel sent letters to the Respondent’s Prince George’s County and Baltimore City addresses with copies of Mr. Behere’s complaint and requested a written response no later than January 24, 2018.

Both January 2, 2018 letters were returned to Bar Counsel. “On May 31, 2018, Mr. Mbawe filed a complaint with Bar Counsel. On July 17, 2018, Investigator Jason Bogue attempted to make contact with the Respondent at his Baltimore City address, but no one answered the door. On July 17, 2018, Investigator Bogue left a note at the Respondent’s Baltimore City office requesting that the Respondent contact Bar Counsel. That same day, Investigator Bogue also called the telephone number that the Respondent has listed with the Client Protection Fund and left a voicemail message asking the 7 Respondent to contact him.

The Respondent failed to respond to Bar Counsel. Mitigating Factors “No mitigating factors were presented. Aggravating Factors “The Court of Appeals has recognized the following aggravating factors: ‘(1) Prior disciplinary offenses; (2) A dishonest or selfish motive; (3) A pattern of misconduct; (4) Multiple offenses; (5) Bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (6) Submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (7) Refusal to acknowledge the wrongful nature of conduct; (8) Vulnerability of victim; (9) Substantial experience in the practice of law; and (10) Whether he or she displayed indifference to making restitution.’ See Att’y Griev. Comm’n v. Sperling, 434 Md. 658 , 676–77, 76 A.3d 1172, 1183 (2013) (citing Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions). 8 “The Petitioner established the following aggravating factors: (2) dishonest or selfish motive; (3) pattern of misconduct; (4) multiple offenses; (5) bad faith obstruction of the disciplinary process; and (10) indifference to making restitution. “The Respondent demonstrated a dishonest or selfish motive when he misappropriated settlement funds in the Behere matter.

Having violated multiple Rules in both the Behere and Mbawe matters, Respondent has demonstrated a pattern of misconduct. Throughout the investigation of this disciplinary matter, the Respondent failed to comply with Bar Counsel’s numerous requests for information. Respondent has also shown an indifference to making restitution to Mr. Mbawe and the healthcare providers in the Behere matter. CONCLUSIONS OF LAW “Petitioner established, by clear and convincing evidence, that the Respondent violated the following Maryland Attorneys’ Rules of Professional Conduct: MARPC Rule 1.1.

Competence [MARPC 19-301.1] “Rule 1.1 provides: 9 ‘An attorney shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.’ “The Respondent violated Rule 1.1 when he failed to attend the March 12, 2017 meeting with Mr. Mbawe and then failed to attend the March 13, 2017 peace order hearing. *** MARPC Rule 1.3. Diligence [MARPC 19-301.3] “Rule 1.3 provides: ‘An attorney shall act with reasonable diligence and promptness in representing a client.’ “Respondent violated Rule 1.3 for the same reasons discussed in relation to Rules 1.1 and 1.4. MARPC Rule 1.4.

Communication [MARPC 19-301.4] “Rule 1.4 provides, in part: ‘(a) An attorney shall: (1) promptly inform the client of any decision or circumstance with respect to which the client’s informed consent, as defined in Rule 1.0(f), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; 10 (3) promptly comply with reasonable requests for information; and (4) consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows that the client expects assistance not permitted by the Maryland Attorneys’ Rules of Professional Conduct or other law. (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.’ “Respondent violated Rule 1.4(a) and (b) when he (1) failed to attend the March