Attorney Grievance v. McCarthy

Attorney Grievance Commission of Maryland v. Thomas McCarthy, Jr., Misc. Docket AG No. 72, September Term, 2019 ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Court of Appeals disbarred attorney who, among other things, failed to file opening brief, appendix, or motion to extend time on behalf of company that attorney represented, resulting in dismissal of appeal, failed to inform owner of company of missed filing deadlines and dismissal of appeal, knowingly and intentionally misrepresented to owner of company that he was working on reinstating appeal, and failed to provide timely and complete responses to Bar Counsel’s requests for information and documentation. Such conduct violated Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 1.3 (Diligence), 1.4(a)(2) (Keeping Client Reasonably Informed), 1.4(a)(4) (Consulting with Client About Limitation on Attorney’s Conduct), 1.4(b) (Explaining Matter to Client), 1.16(a)(1) (Terminating Representation), 5.5(a) (Unauthorized Practice of Law), 5.5(b)(2) (Misrepresenting that Attorney is Admitted), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MARPC). Circuit Court for Anne Arundel County Case No. C-02-CV-20-000745 Argued: April 9, 2021 IN THE COURT OF APPEALS OF MARYLAND Misc.

Docket AG No. 72 September Term, 2019 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. THOMAS MCCARTHY, JR. ______________________________________ Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. ______________________________________ Opinion by Watts, J. ______________________________________ Filed: May 27, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2021-05-27 10:55-04:00 Suzanne C. Johnson, Clerk This attorney discipline proceeding involves an attorney who, among other instances of misconduct, failed to file an opening brief, an appendix, or a motion to extend time on behalf of a company in an appeal, resulting in the appeal being dismissed, and made a knowing and intentional misrepresentation to the owner of the company that he was working to have the appeal reinstated. Thomas McCarthy, Jr., Respondent, a member of the Bar of Maryland, was retained by Jonathan B. Radding to represent his company, View Point Medical Systems, LLC (“View Point”), which was the appellant in an appeal before the United States Court of Appeals for the Fourth Circuit. The underlying case began as a breach of contract action in the Circuit Court for Baltimore City in which View Point was the plaintiff and the defendant in the lawsuit had the case removed to the United States District Court for the District of Maryland. On appeal, McCarthy failed to file an opening brief, an appendix, or a motion to extend time on View Point’s behalf, resulting in dismissal of the appeal.

McCarthy knowingly and intentionally misrepresented to Radding that he was working on reinstating the appeal and briefing schedule. In actuality, McCarthy never drafted or filed a motion to reinstate the appeal or took any other steps to protect View Point’s claim. Radding caused a complaint against McCarthy to be filed with Bar Counsel.1 Bar Counsel made numerous requests for information and documentation, to which McCarthy knowingly and intentionally failed to provide timely and complete responses. 1 Radding, a person who had suffered a brain injury, requested from Bar Counsel assistance in completing the complaint form. An investigator for Bar Counsel telephoned Radding and transcribed the complaint.

On February 24, 2020, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” charging McCarthy with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)2 1.3 (Diligence), 1.4(a)(1) (Informing Client Regarding Informed Consent), 1.4(a)(2) (Keeping Client Reasonably Informed), 1.4(a)(4) (Consulting with Client About Limitation on Attorney’s Conduct), 1.4(b) (Explaining Matter to Client), 1.16(a)(1) (Terminating Representation), 5.5(a) (Unauthorized Practice of Law), 5.5(b)(2) (Misrepresenting that Attorney is Admitted), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MLRPC or MARPC). On March 4, 2019, this Court designated the Honorable Glenn L. Klavans (“the hearing judge”) of the Circuit Court for Anne Arundel County to hear the attorney discipline proceeding. On August 7, 2020, in this disciplinary proceeding, Bar Counsel filed a Notice of Service of Discovery Material, stating that, on August 1, 2020, through a process server, Bar Counsel had served on McCarthy interrogatories, a request for production of documents, and a request for admission of facts and genuineness of documents. Under the 2 Effective July 1, 2016, the MLRPC were renamed the MARPC and relocated to Title 19 of the Maryland Rules, without substantive change.

The misconduct at issue occurred both before and after this change. In this case, after identifying the MLRPC and MARPC that Bar Counsel charged McCarthy with violating, we will refer only to the MARPC. -2- Maryland Rules, responses to the discovery requests were due on August 31, 2020, thirty days after the service of the discovery requests.3 In the request for admissions, Bar Counsel asked McCarthy to admit the genuineness of twenty-eight attached exhibits4 and to admit the following facts: 1. You were admitted to the Bar of the State of Maryland on June 14, 1989. 2. At all times relevant herein, you maintained an office for the practice of law in Anne Arundel County, Maryland.

Representation of Jonathan B. Radding and View Point Medical Systems, LLC 3. In January 2014, Jonathan B. Radding suffered a brain injury. 4. Mr. Radding’s injury causes him to experience overstimulation of brain function, affects his short-term memory and affects his ability to converse for lengthy periods of time. 5. Beginning in or about 2002, Mr. Radding owned View Point Medical Systems, LLC (“View Point”).

View Point was a healthcare technology company. 6. In 2009 View Point began generating sales leads for Athena Health, Inc. (“Athena”). 3 Responses to interrogatories, requests for production, and requests for admission are due “within 30 days after service of the” interrogatories or requests “or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later.” Md. R. 2-421(b) (governing responses to interrogatories), 2-422(c) (governing responses to requests for production), 2-424(b) (governing responses to requests for admissions). Here, thirty days after the service of the discovery requests was August 31, 2020, which was later than fifteen days after the answer to the Petition for Disciplinary or Remedial Action was due on May 5, 2020. 4 The twenty-eight attached exhibits included documents such as the docket entries from the United States District Court for the District of Maryland and the United States Court of Appeals for the Fourth Circuit for View Point’s case, text message exchanges between McCarthy and Radding, and letters from Bar Counsel to McCarthy concerning Radding’s complaint and requesting that McCarthy provide information. -3- 7. On February 25, 2013, View Point filed a lawsuit against Athena in the Circuit Court for Baltimore City alleging breach of contract. 8.

On May 2, 2013, Athena removed the matter to the U.S. District Court for the District Court of Maryland. 9. At the time the matter was removed to the U.S. District Court, View Point was represented by Stephen Snyder, Esquire, Julia R. Arfaa, Esquire and Gary A. Wais, Esquire. 10. On December 2, 2014, Mr. Radding retained your brother, Brennan C. McCarthy, Esquire of Brennan McCarthy and Associates to represent View Point. 11. On December 4, 2014, Brennan McCarthy, entered his appearance in the U.S. District Court as successor counsel for View Point. 12.

In early January 2015, you began assisting in the representation of View Point and served as the main point of contact for Mr. Radding. 13. On February 18, 2016, Judge J. Frederick Motz granted Athena’s Motion for Summary Judgment. 14. On March 1, 2016, Brennan McCarthy terminated his attorney-client relationship with View Point and Mr. Radding. 15. On March 17, 2016, Brennan McCarthy filed a Notice of Appeal to the U.S. Court of Appeals for the Fourth Circuit to protect View Point’s interests. 16.

On March 18, 2016, the court entered a Briefing Order directing View Point to file its opening brief and appendix by April 27, 2016. 17. On or about February 20, 2016, View Point retained you to represent it in the Fourth Circuit. 18. On April 15, 2016, you entered your appearance and filed the required Disclosure of Corporate Affiliations and Docketing Statement. 19. On May 2, 2016, the court entered an Order extending the briefing schedule and directing View Point to file its opening brief and appendix by June 2, 2016. 20.

On June 2, 2016, you emailed counsel for Athena about requesting a -4- mutual 8-day extension to the briefing schedule. You suggested extending View Point’s filing deadline to June 9, 2016. 21. Opposing counsel agreed to an extension of the briefing schedule. 22. On June 7, 2016, you again emailed Athena’s counsel about extending the briefing schedule and suggested moving View Point’s filing deadline to June 13, 2016. 23.

On June 8, 2016, with the consent of Athena’s counsel, you sent an emailed the Chief Circuit Mediator to request assistance in seeking to modify the briefing schedule. You explained that View Point’s brief was due on June 2, 2016, but “that it requires additional time to complete and file its brief” and sought an extension until June 13, 2016. 24. On June 8, 2016, a Rule 45 Notice was sent to you. The Notice stated that the court had not received the required opening brief and appendix, and that the case would be dismissed for failure to prosecute if the brief and a motion to extend the filing time were not filed by June 23, 2016. 25.

On June 22, 2016, you and Mr. Radding exchanged the following text messages: [Mr. Radding]: Whatever is going on in the court of appeals you can update me with two sentences about the whole thing. I would like to know what is going on so could you please give me an update thank you[.] [You]: Jon for God’s sake I am drafting and filing the brief and record extract. I will send you copy’s [sic] once filed. There is no further update possible. 26.

On June 23, 2016, Mr. Radding texted you: “Tom are we alive because I thought today was the very last day. When you get the strength to type back please get in touch and let me know how it went thank you[.]” 27. On June 24 and 25, 2016, you replied to Mr. Radding with the same message: “Sorry, I can’t talk right now.” 28. At some time prior to June 24, 2016, you, without Mr. Radding’s knowledge, determined that Mr. Radding was not competent to participate in the litigation, and you made the decision to not file the brief.

Mr. Radding was scheduled to have surgery around this time, and you believed that following the surgery, Mr. Radding would then be competent to participate -5- in on-going litigation. 29. You failed to file an opening brief or request an extension of time and on June 24, 2016, the Fourth Circuit dismissed the appeal for failure to prosecute pursuant to Local Rule 45. 30. You failed to advise Mr. Radding of the July 24, 2016 order. 31. On July 27, 2016, Mr. Radding sent a text message to you: “Is the case against athenahealth [sic] still in the court of appeals?” 32.

On June 28, 2016, you replied to Mr. Radding stating: “Sorry, I can’t talk right now.” 33. On August 4, 2016, Mr. Radding sent you a series of text messages inquiring about the status of the appeal and the dismissal for failure to file a brief. 34. You replied to Mr. Radding stating: “I can call you in about half hour [sic] – working on reinstating the case and modified briefing schedule[.]” 35. You knowingly and intentionally misrepresented to Mr. Radding that you were “working on reinstating” the appeal. 36.

You failed to draft or file any motion to reinstate the appeal or take any steps to protect View Point’s claim. Radding Foreclosure Matter 37. Beginning in March 2015, Mr. Radding’s home was the subject of a foreclosure action in the Circuit Court for Anne Arundel County. Mr. Radding retained Dallas Houston, Esquire to represent him in the matter. 38.

On June 2, 2015, via email, Mr. Radding authorized Ms. Houston to contact you as his personal attorney with any and all information regarding the foreclosure. 39. You were included on emails between Mr. Radding and Ms. Houston, and on occasion you would communicate directly with Ms. Houston regarding the matter. 40. On or about September 5, 2015, Mr. Radding terminated his attorney- client relationship with Ms. Houston. -6- 41. On February 17, 2016, Brennan McCarthy filed a Chapter 13 Bankruptcy Petition on behalf of Mr. Radding to stay the foreclosure case. 42.

On March 10, 2016, the bankruptcy case was dismissed. 43. On July 1, 2016, the mortgage holder filed a Motion to Re-Open the foreclosure proceeding. 44. On March 24, 2016, the Court of Appeals of Maryland temporarily suspended you from the practice of law in Maryland for non-payment of the annual assessment of the Client Protection Fund. You remained temporarily suspended until February 16, 2017. 45.

Between July 2016 and January 2017, you provided Mr. Radding with legal advice and guidance in his foreclosure matter, including reviewing the Motion to Re-Open, speaking to a representative of the mortgage serving company and providing guidance on completing and filing a loss mitigation package to delay the foreclosure. Bar Counsel Investigation 46. In October 2017, Mr. Radding contacted the Office of Bar Counsel about filing a complaint. Mr. Radding explained that due to his disability, he required assistance with completing the complaint form.

An investigator from Bar Counsel’s Office, Marc Fiedler, contacted Mr. Radding by telephone and transcribed the complaint. Mr. Radding provided Investigator Fiedler with links to his Google Drive that included copious documents and communications in connection with his complaint. 47. On July 25, 2018, Bar Counsel wrote to you, provided you with specific questions about your representation of Mr. Radding, and requested a written response by August 15, 2018. 48. You failed to provide a timely response to Bar Counsel’s July 25, 2018 letter. 49.

On September 5, 2018, you requested an extension of the time to submit your written response. 50. Bar Counsel granted your extension request and directed you to provide your written response by September 19, 2018. -7- 51. You failed to provide Bar Counsel with a response by the September 19, 2018 deadline. 52. On October 4, 2018, Bar Counsel wrote to you and requested a written response to specific questions about the representation of Mr. Radding. 53.

You failed to respond to Bar Counsel’s October 4, 2018 letter. 54. On November 29, 2018, Bar Counsel notified you that the matter had been docketed for further investigation and requested information be provided by December 10, 2018. 55. The Respondent failed to respond to Bar Counsel’s November 29, 2018 letter. 56. On December 21, 2018, Bar Counsel Investigator Cheryl Trivelli interviewed you at Bar Counsel’s office. 57.

On January 8, 2019, you provided a partial response to Bar Counsel’s correspondence but failed to provide responses to all of Bar Counsel’s specific questions regarding the matter. 58. On March 6, 2019, Bar Counsel wrote to you and enclosed a subpoena to appear for a statement under oath on March 21, 2019 at 11:00 a.m. The March 21 date had been cleared with you in advance. 59. On March 21, 2019 at 10:33 a.m., you contacted Bar Counsel by telephone and email and requested the statement under oath be postponed to allow you to retain counsel. 60.

The statement under oath was rescheduled for April 4, 2019 at 11:00 a.m. with your consent. 61. On the morning of April 4, 2019, at 11:11 a.m. you emailed Bar Counsel a document entitled, “Chronology of Representation of Viewpoint Medical Systems, LLC and Jonathan B. Radding.” 62. You appeared the morning of April 4, 2019, without counsel, for the statement under oath. 63. During the statement under oath, you admitted that you had not provided a complete response to Bar Counsel and stated: “But I have some hope that in the next couple of days I’ll have the full response to you, to accompany -8- the-and I sent to you today, the chronology, because that’s sort of the big background.” 64.

You failed to provide any further response to Bar Counsel. 65. On May 3, 2019, Bar Counsel wrote to you again and requested a response by May 10, 2019. Bar Counsel sent the letter by mail and email. 66. On May 3, 2019, you confirmed receipt of Bar Counsel’s emailed correspondence. 67.

You failed to respond to Bar Counsel’s May 3, 2019 letter. 68. You have never provided Bar Counsel with a complete written response to Bar Counsel’s specific questions concerning your representation of Mr. Radding. 69. The factual averments contained in the attached Exhibit 21 are true and correct.[5] (Alterations other than footnote in original). On September 4, 2020—four days after responses to the discovery requests were due—Bar Counsel e-mailed McCarthy, stating that responses to the discovery requests had not been received and asking when McCarthy would provide them.

McCarthy did not respond to Bar Counsel’s e-mail. In a letter dated September 22, 2020, Bar Counsel advised McCarthy that unless he provided responses to the discovery requests by September 30, 2020, sanctions would be requested. On September 30, 2020, McCarthy e- mailed Bar Counsel, stating that he would try to have the responses completed within the “next several days[.]” On October 1, 2020, Bar Counsel e-mailed McCarthy, stating that Bar Counsel would move for sanctions because responses to the discovery requests were 5 Exhibit 21 was a memorandum in which Trivelli summarized her December 21, 2018 interview of McCarthy. -9- more than thirty days past due and would consider withdrawing the motion for sanctions if and when McCarthy provided responses to the discovery requests. On October 5, 2020, McCarthy provided Bar Counsel with a response to the interrogatories and a response to the request for production.

In each response, under the heading “General Objection[,]” McCarthy alleged that Bar Counsel had failed to comply with service under Maryland Rule 1-321(a), which governs service of papers filed after the original pleading, and that his response was provided without waiving the objection. Specifically, McCarthy stated that Bar Counsel “sought to provide the Respondent with its discovery requests as electronic files on an external media drive, requiring Respondent to safely access the files through an independent computer, and to then create his own copies of the requests[.]” McCarthy contended that service of discovery requests via an “external media drive” failed to comply with Maryland Rule 1-321(a). In response to the request for production of documents, McCarthy noted that Bar Counsel had requested that responsive documents be produced for inspection and copying at the Attorney Grievance Commission’s office within thirty days. McCarthy stated “that a very large volume of documents responsive to the Requests exist in electronic form, on Google Drive and similar storage platforms, and either are not amenable to production at Petitioner’s office, or only at unnecessary and unreasonable expense.” McCarthy proposed that the parties agree to a “reasonable and appropriate method” to permit Bar Counsel’s access to the electronically stored information to be produced in discovery.

In the answer to an interrogatory asking McCarthy to “[i]dentify each person, other than a person intended to be called as an expert witness at trial, having discoverable information that - 10 - tends to support a position that [McCarthy] ha[d] taken or intend[ed] to take in this action and state the subject matter of the information possessed by that person[,]” McCarthy responded: “Brennan McCarthy, Wendy Hartman, Thomas Ryan McCarthy, Catherine C[.] McCarthy, Patrick McCarthy, and Mr. Radding’s health care providers.” On October 22, 2020, Bar Counsel e-mailed McCarthy and asked that he provide the information necessary to view on Google Drive the electronic documents that he mentioned in the response to the request for production of documents. Bar Counsel also asked McCarthy to state the subject matter of the information possessed by the individuals whom McCarthy listed in the answer to the interrogatory regarding people with discoverable information other than expert witnesses and to identify the healthcare providers referred to in the answer. Bar Counsel noted that McCarthy still had not provided a response to the request for admissions and stated that Bar Counsel would move for sanctions and move to shorten time to respond unless McCarthy responded by October 26, 2020. On November 4, 2020, Bar Counsel filed with the hearing judge a motion for sanctions and a motion to shorten the time in which McCarthy could respond to the motion for sanctions to within five days of an order granting the motion to shorten time.

In the motion for sanctions, Bar Counsel advised that McCarthy had failed to provide any of the discovery materials requested in Bar Counsel’s October 22, 2020 e-mail. Bar Counsel requested that the hearing judge impose sanctions in the form of not allowing McCarthy to present any documents at the disciplinary hearing, not allowing him to testify except as to mitigation, and otherwise precluding him from calling witnesses. Alternatively, Bar - 11 - Counsel requested that if the hearing judge declined to impose sanctions, the hearing judge issue an order compelling McCarthy to provide the requested discovery materials within five days of the order. In addition, Bar Counsel requested that the hearing judge order that the facts and genuineness of the documents referred to in the request for admissions be deemed admitted pursuant to Maryland Rule 2-424.

McCarthy failed to file a response or opposition to the motion for sanctions. On November 6, 2020, McCarthy provided Bar Counsel with a response to the request for admissions. On November 24, 2020, the hearing judge issued a memorandum opinion and order granting the motion for sanctions. The hearing judge found that McCarthy “failed, after proper service, to timely or properly respond to discovery requests[.]” The hearing judge determined that McCarthy “engaged in a continuing pattern of delay and avoidance in complying with his discovery obligations” and stated that McCarthy’s actions were similar to the misconduct in which he had allegedly engaged.

The hearing judge found that McCarthy’s “discovery failures [were] purposeful and willful, designed to prejudice the Petitioner and hinder the Court in the orderly progress of this matter.” The hearing judge ordered that the facts and genuineness of the documents referred to in the request for admission were deemed admitted. The hearing judge precluded McCarthy from presenting any evidence that contradicted the facts or the documents referred to in the request for admissions or that contradicted the averments in the Petition for Disciplinary or Remedial - 12 - Action.6 The hearing judge allowed McCarthy to testify only about mitigation and precluded him from calling witnesses except as to mitigation. On November 30, 2020—the date on which the disciplinary hearing was scheduled to occur—before 8:00 a.m., McCarthy filed with the hearing judge “Respondent’s Verified Motion to Reconsider and to Vacate Order of November 24 2020 Imposing Sanctions” and “Respondent’s Verified Motion to Strike Petitioner’s Notice of Discovery Materials[.]” In both motions, McCarthy contended that service of the discovery requests via a “zip drive” or “thumb drive” failed to comply with Maryland Rule 1-321(a), which he argued requires service of paper copies. In the motion for reconsideration, McCarthy argued that, because Bar Counsel failed to properly serve the request for admissions, the hearing judge was not permitted to order that the facts and genuineness of the documents referred to in the request for admissions were deemed admitted.

With respect to the interrogatories and request for production of documents, in addition to raising the issue concerning service, McCarthy argued that, under Maryland Rule 2-432(a), which governs motions for sanctions, Bar Counsel was not entitled to seek sanctions because the hearing judge had not issued an order to compel and he had responded to the interrogatories and the request for production. 6 Although Bar Counsel requested in the motion for sanctions that the hearing judge strike the answer to the Petition for Disciplinary or Remedial Action and order that the averments in the petition were deemed admitted, the hearing judge did not do so. Under Maryland Rules 19-724(c), 2-613, and 2-323(e), the averments in a petition for disciplinary or remedial action are deemed admitted where a hearing judge issues an order of default on the ground that the attorney has failed to timely file an answer to the petition. See Attorney Grievance Comm’n v. Milton, 467 Md. 433 , 437 n.2, 225 A.3d 415 , 418 n.2 (2020). In this case, the hearing judge did not issue an order of default or order that the averments in the Petition for Disciplinary or Remedial Action be deemed admitted but ordered that McCarthy could not present evidence that contradicted the averments. - 13 - Later that morning, when the hearing began, McCarthy requested that the hearing judge address the motion for reconsideration.

The hearing judge asked McCarthy why he should reconsider the grant of the motion for sanctions when McCarthy had failed to file a response or opposition to the motion. McCarthy stated that, in light of the responses to the discovery requests, he did not think that a response to the motion for sanctions was necessary. When answering additional questions by the hearing judge, McCarthy stated that he was only able to access the discovery requests on the thumb drive at “a computer shop” and that the files were Microsoft Word documents. Bar Counsel stated that the files were actually PDFs, that McCarthy had not indicated that accessing the discovery requests on the thumb drive would be a problem, and that, if he had encountered any trouble with the thumb drive, he could have contacted Bar Counsel, who “would have provided some alternate method.” McCarthy reiterated that Maryland Rule 1-321(a) requires that paper copies be served and stated that he expended time and money printing the discovery requests.

The hearing judge denied the motion for reconsideration, stating: Mr. McCarthy, this is what I’m trying to understand is you’re talking about a thumb drive which universally fits into almost every laptop or desktop computer made that that the U in the U[SB] connection is universal in one of two formats, either Word or PDF which are also ubiquitous which are commonly accessible instantly. And it should have taken minimal, if any, delay for you to access that drive. And you raise this issue post-motion for the first time today. I’m going to deny your motion.

I believe proper and substantial compliance with the rules were undertaken and you were properly served. - 14 - So your motion for reconsideration is denied.[7] After the hearing judge denied the motion for reconsideration, the disciplinary hearing proceeded. Bar Counsel’s case consisted of offering into evidence a document that was approximately 900 pages long, and that was comprised of the request for admissions and the twenty-eight attached exhibits. Over McCarthy’s objection, the hearing judge admitted the document into evidence. The only witness at the evidentiary hearing was McCarthy, who testified about mitigation.

On January 20, 2021, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, determining that McCarthy had violated MARPC 1.3, 1.4(a), 1.4(b), 1.16(a)(1), 5.5(a), 5.5(b)(2), 8.1(b), 8.4(b), 8.4(c), 8.4(d), and 8.4(a). On February 9, 2021, in this Court, McCarthy filed “Respondent’s Exceptions to Circuit Court’s Findings of Fact and Conclusion[s] of Law[.]” In his exceptions, McCarthy states that he excepts to the hearing judge’s findings and conclusions because he was denied the opportunity to present a defense. McCarthy requests that we designate a new hearing judge and order a new evidentiary hearing, at which he would be permitted to present evidence in defense of Bar Counsel’s allegations. McCarthy contends that, under Maryland Rule 2-432(a), the hearing judge erred in granting the motion for sanctions because Bar Counsel did not file a motion to compel and because he had already responded to the interrogatories and request for production.

McCarthy argues that the hearing judge 7 In his opinion, the hearing judge indicated that both the motion for reconsideration and the motion to strike had been denied on November 30, 2020. A review of the transcript of the disciplinary hearing, however, reveals that the hearing judge did not rule on the motion to strike. - 15 - erred in ordering that the facts and genuineness of the documents referred to in the request for admissions were deemed admitted and in granting the motion for sanctions because Bar Counsel failed to provide service with paper copies of the discovery requests, which he contends is required by Maryland Rule 1-321(a). On April 9, 2021, we heard oral argument. Upon a careful review of the record and the applicable Maryland Rules, we deny McCarthy’s request for a new evidentiary hearing.

McCarthy’s contention that the hearing judge erred in granting the motion for sanctions in the absence of Bar Counsel having first filed a motion to compel does not warrant a new evidentiary hearing because McCarthy waived or forfeited the contention and because the hearing judge’s grant of the motion for sanctions did not result in prejudice. As to waiver or forfeiture, McCarthy failed to file a response or opposition to the motion for sanctions at any time—whether by the due date for filing a response or before the hearing judge granted the motion for sanctions on November 24, 2020. Moreover, McCarthy did not raise with the hearing judge the necessity of a motion to compel until he filed the motion for reconsideration on November 30, 2020, the day of the disciplinary hearing. In addition to waiver or forfeiture, the hearing judge’s grant of the motion for sanctions did not result in prejudice to McCarthy, given that, as discussed below, the facts and genuineness of the documents referred to in the request for admissions were automatically deemed admitted pursuant to Maryland Rule 2-424(b) once McCarthy missed the deadline for responding to the request.

Any evidence that McCarthy would have presented at the disciplinary hearing but for the hearing judge’s grant of the motion - 16 - for sanctions would not have negated the facts set forth in the request for admissions that were deemed admitted by operation of Maryland Rule 2-424(b). For example, at oral argument in this Court, after being asked whether he could provide a proffer or summary of the evidence that he would have presented at the disciplinary hearing but for the hearing judge’s grant of the motion for sanctions, McCarthy stated that he would have presented evidence of his communications with Radding that would have proven that he did not make a misrepresentation to Radding. McCarthy also stated that he would have presented evidence of Radding’s emotional and mental condition, which allegedly precluded him (McCarthy) from filing an opening brief on View Point’s behalf. The proffered evidence of communications with Radding would not have voided a finding that McCarthy made a knowing and intentional misrepresentation to Radding by telling him that he was working on reinstating the appeal, as that was a fact that was deemed to have been admitted.

Similarly, the proffered evidence of Radding’s emotional and mental condition would have been of no impact because McCarthy was deemed to have admitted that, without Radding’s knowledge, he determined that Radding was not competent to participate in the litigation and decided on his own not to file an opening brief on View Point’s behalf. In addition, it was already deemed admitted that McCarthy failed to file an opening brief or request an extension of time to do so and that, on June 24, 2016, the appeal was dismissed and McCarthy failed to advise Radding of the dismissal. We are aware that Maryland Rule 2-432(a), which governs motions for sanctions, states in pertinent part: A discovering party may move for sanctions under Rule 2-433(a), without - 17 - first obtaining an order compelling discovery under section (b) of this Rule, if a party or any officer, director, or managing agent of a party or a person designated under Rule 2-412 (d) to testify on behalf of a party, fails to appear before the officer who is to take that person’s deposition, after proper notice, or if a party fails to serve a response to interrogatories under Rule 2-421 or to a request for production or inspection under Rule 2-422, after proper service. In other words, under Maryland Rule 2-432(a), “[a] discovering party may move for sanctions” in two scenarios—where there is an order compelling discovery or where there is a complete failure to appear for a deposition or to respond to interrogatories or a request for production or inspection.

Here, although Bar Counsel requested, as an alternative form of relief in the motion for sanctions, an order compelling McCarthy to provide the requested discovery materials, the hearing judge never issued an order compelling discovery. And, when Bar Counsel filed the motion for sanctions, there had not been a complete failure to respond to the interrogatories and request for production. To be sure, before Bar Counsel filed the motion for sanctions, McCarthy responded to the interrogatories and the request for production, as Bar Counsel readily acknowledged in the motion for sanctions. In this case, though, McCarthy waived or forfeited any issue as to the propriety of the hearing judge’s grant of the motion for sanctions by failing to file a response or opposition to the request for sanctions.

Similarly, McCarthy is not entitled to a new evidentiary hearing based on his contention that the hearing judge erred in ordering that the matters referred to in the request for admissions were deemed admitted and in granting the motion for sanctions because Bar Counsel failed to effect service as required by Maryland Rule 1-321(a), i.e., Bar Counsel - 18 - provided service with a thumb drive instead of paper copies of the request for admissions and other discovery requests. As with the argument regarding the need for a motion to compel, McCarthy waived or forfeited this assertion by failing to timely raise it before the hearing judge. McCarthy failed to file a motion challenging the sufficiency of the service of the request for admissions or the discovery requests8 for that matter at any time in the thirty days between service on August 1, 2020 and the deadline for responding to the request for admissions and other discovery requests. As such, the facts and genuineness of the documents referred to in the request for admissions were automatically deemed admitted by operation of Maryland Rule 2-424(b) after McCarthy’s failure to timely respond on August 31, 2020.

Maryland Rule 2-424(b) provides in pertinent part: 8 For example, McCarthy could have filed a motion to strike service or a motion for a protective order. McCarthy knew that the thumb drive served upon him contained discovery requests and a request for admissions because Bar Counsel attached a document to the thumb drive stating so. In a motion to strike service, McCarthy could have argued that strict compliance with Maryland Rule 1-321(a) was required. As to a motion for a protective order, Maryland Rule 2-403(a)(3) provides in pertinent part: On motion of a party, a person from whom discovery is sought, . . . for good cause shown, the court may enter any order that justice requires to protect a party or person from . . . undue burden or expense, including one or more of the following: . . . that the discovery may be had only on specified terms and conditions, including an allocation of the expenses[.] In a motion for a protective order, McCarthy could have advised the hearing judge that he believed he was entitled to paper copies of the discovery requests, contended that printing them himself was an “undue burden or expense,” and requested an order that discovery occur with the condition that Bar Counsel provide him with paper copies of the discovery requests.

Md. R. 2-403(a)(3). McCarthy, however, failed to file a motion to strike service, a motion for a protective order, or to otherwise timely bring the matter to the hearing judge’s attention in any way. - 19 - Each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later, the party to whom the request is directed serves a response signed by the party or the party’s attorney. Under the plain language of Maryland Rule 2-424(b), each matter referred to in a request for admissions is automatically deemed admitted where the party to whom the request is directed misses or ignores the deadline for responding to the request. There is no need for the other party to seek, or for the trial court to issue, an order that the matters referred to in a request for admissions are deemed admitted.

Maryland Rule 2-432, which governs motions to compel and motions for sanctions, and Maryland Rule 2-433, which governs sanctions themselves, do not mention admissions, because no motion for sanctions or court order is necessary for matters referred to in a request for admissions to be deemed admitted. Like the plain language of Maryland Rule 2-424(b), our attorney discipline case law confirms as much. As we stated in Attorney Grievance Comm’n v. Barton, 442 Md. 91, 120-21 , 110 A.3d 668, 685 (2015), “Maryland Rule 2-424(b) provides that any matter for which an admission is requested is deemed admitted if a party fails to respond to the request within 30 days.” (Footnote omitted). In other words, “one may make an admission by timely filing a response to the request; however, by its terms, see Rule 2-424(b), that same result occurs by default whenever the request for admissions is not timely responded to.” Attorney Grievance Comm’n v. Robertson, 400 Md. 618, 635 , 929 A.2d 576, 586 (2007).

By way of illustration, in Attorney Grievance Comm’n v. Kapoor, 391 Md. 505, 530 , 894 A.2d 502, 517 (2006), this Court stated that, “[b]ecause Respondent did not respond to Petitioner’s Request for Admission of Facts and Genuineness of Documents, each matter - 20 - of which an admission was requested was deemed admitted and conclusively established as a matter of law.” (Citing Md. R. 2-424). In this case, as a practical matter, McCarthy had the opportunity to view the request for admissions as soon as the thumb drive was served on him on August 1, 2020. To be sure, in the responses to the interrogatories and the request for production, in the motions for reconsideration and to strike, and at oral argument, McCarthy indicated that he was unwilling to plug the thumb drive into his computer. McCarthy, however, always had the option of doing so, which would have allowed him to immediately view the request for admissions.

As the hearing judge pointed out when addressing the motion for reconsideration at the beginning of the disciplinary hearing, McCarthy could have plugged the thumb drive into nearly any computer, and it should have taken him minimal time to view the contents of the thumb drive. Indeed, McCarthy responded to the request for admissions on November 6, 2020, which demonstrates that he was plainly able to access the request for admissions in the form in which Bar Counsel provided it. That said, McCarthy is correct that Maryland Rule 1-321(a) generally contemplates that a party will serve paper copies of discovery requests. Maryland Rule 1-321(a) governs service of papers filed after the original pleading and states: Except as otherwise provided in these rules or by order of court, every pleading and other paper filed after the original pleading shall be served upon each of the parties.

If service is required or permitted to be made upon a party represented by an attorney, service shall be made upon the attorney unless service upon the party is ordered by the court. Service upon the attorney or upon a party shall be made by delivery of a copy or by mailing it to the address most recently stated in a pleading or paper filed by the attorney or party, or if not stated, to the last known address. Delivery of a copy within this Rule means: handing it to the attorney or to the party; or leaving it at the - 21 - office of the person to be served with an individual in charge; or, if there is no one in charge, leaving it in a conspicuous place in the office; or, if the office is closed or the person to be served has no office, leaving it at the dwelling house or usual place of abode of that person with some individual of suitable age and discretion who is residing there. Service by mail is complete upon mailing.

The use of the phrase “delivery of a copy” in Maryland Rule 1-321(a) suggests that delivery of a physical copy—i.e., a paper copy—is anticipated. This Court adopted Maryland Rule 1-321 in 1984, before electronic documents were as ubiquitous as they are today. Despite the growth in use of electronic documents and media in the decades since then, this Court has not amended Maryland Rule 1-321 to indicate that delivery of a copy may include electronic documents or copies. In this case, though, McCarthy failed to timely bring to the hearing judge’s attention any contention that service of the request for admissions via a thumb drive did not strictly comply with Maryland Rule 1-321(a).

Instead, McCarthy belatedly responded (over two months after the response was due) to the request for admissions, which he had access to from the day Bar Counsel served the request on him, and on the day of the disciplinary hearing filed a motion to strike notice of service. Plainly, McCarthy waived or forfeited any issue as to service of the request for admissions (as well as the service of the other discovery requests), and the facts and genuineness of the documents referred to in the request for admissions were automatically deemed admitted by operation of Maryland Rule 2-424(b). Simply put, with regard to both of the preliminary issues that he raises, i.e., the need for a motion to compel and sufficiency of service, McCarthy sat on his hands. Before the hearing judge, he failed to take any timely action whatsoever as to either matter.

As - 22 - such, there is no basis for determining an abuse of discretion on the hearing judge’s part in denying the motion for reconsideration. We now turn to the merits of the attorney discipline proceedings. For the below reasons, we disbar McCarthy. BACKGROUND The hearing judge found the following facts, which we summarize.

On June 14, 1989, this Court admitted McCarthy to the Bar of Maryland. At all relevant times, McCarthy maintained an office for the practice of law in Anne Arundel County. McCarthy’s Representation of View Point in Breach of Contract Case In or about 2002, Radding established View Point, a healthcare technology company. On February 25, 2013, in the Circuit Court for Baltimore City, View Point sued Athena Health, Inc. (“Athena”) for breach of contract.

On May 2, 2013, Athena removed the case to the United States District Court for the District of Maryland. Eventually,