Attorney Grievance v. Wescott

Attorney Grievance Commission of Maryland v. Sherwood R. Wescott, AG No. 2, September Term, 2022. ATTORNEY DISCIPLINE — SANCTION — SUSPENSION The Court suspended for 60 days an attorney who (1) failed to prepare for hearings and to communicate with or provide meaningful legal services to a client during the course of representation; and (2) charged an unreasonable fee, the unearned portion of which he failed to keep in a separate trust account during the representation and failed to return upon termination of the representation. The attorney’s conduct violated Maryland Attorneys’ Rules of Professional Conduct 1.1 (Competence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), and 8.4 (Misconduct). Circuit Court for Wicomico County Case No. C-22-CV-22-000085 Argued: December 6, 2022 IN THE SUPREME COURT OF MARYLAND* AG No. 2 September Term, 2022 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. SHERWOOD R. WESCOTT ______________________________________ Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. ______________________________________ Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this Opinion by Fader, C.J. document is authentic. ______________________________________ 2023-02-28 09:32-05:00 Filed: February 28, 2023 Gregory Hilton, Clerk * At the November 8, 2022 general election, the voters of Maryland ratified a constitutional amendment changing the name of the Court of Appeals of Maryland to the Supreme Court of Maryland.

The name change took effect on December 14, 2022. The Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Sherwood R. Wescott, a member of the Bar of this State, arising out of his representation of Antrell L. Johnson. Mr. Johnson’s mother, Cynthia Johnson, retained Mr. Wescott to represent her son and paid Mr. Wescott’s fees. The Commission alleged that Mr. Wescott violated the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) as a result of his: (1) failure to keep Mr. Johnson reasonably informed about the status of his case, prepare Mr. Johnson for his hearings, and perform meaningful legal services in furtherance of Mr. Johnson’s defense; (2) improper collection of a nonrefundable flat fee; (3) failure to deposit fees in an attorney trust account; and (4) failure to return unearned fees upon the termination of the representation.

The Commission asserted that Mr. Wescott’s conduct violated MARPC 1.1 (Competence) (Rule 19-301.1), MARPC 1.4 (Communication) (Rule 19-301.4), MARPC 1.5 (Fees) (Rule 19-301.5), MARPC 1.15 (Safekeeping Property) (Rule 19-301.15), MARPC 1.16 (Declining or Terminating Representation) (Rule 19-301.16), and MARPC 8.4 (Misconduct) (Rule 19-308.4).1 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct, which employed the numbering format of the American Bar Association Model Rules, were renamed the MARPC and recodified without substantive modification in Title 19, Chapter 300 of the Maryland Rules. For ease of reference and comparison with our prior opinions and those of other courts, we will refer to the MARPC rules using the numbering of the model rules, as permitted by Rule 19-300.1(22) and as identified in the paragraph to which this footnote is appended. The hearing judge assigned to this matter found by clear and convincing evidence that Mr. Wescott had committed all the violations alleged by the Commission. The hearing judge also determined the existence of six aggravating and two mitigating factors.

Neither party filed exceptions. Bar Counsel recommended the sanction of a 60-day suspension from the practice of law. We will adopt the hearing judge’s findings of fact, concur with the hearing judge’s conclusions of law in all respects but one, and agree with Bar Counsel’s sanction recommendation. BACKGROUND When no exceptions are filed, this Court may accept a hearing judge’s factual findings as established.

Rule 19-740(b)(2)(A). We choose to do so here. Accordingly, we treat as established the following facts, which the hearing judge found to have been proved by clear and convincing evidence. Mr. Wescott’s Representation of Antrell L. Johnson Mr. Johnson was charged with kidnapping and related crimes in the District Court of Maryland for Wicomico County on March 14, 2020.

On April 15, Ms. Johnson retained Mr. Wescott to represent her son. The retainer agreement Mr. Westcott provided to Ms. Johnson called for a flat fee of $15,000 to be paid in installments of $3,500 every 90 days. The agreement further provided that: (1) the entire fee would be considered earned in full when Mr. Wescott entered his “formal appearance” in the case; (2) the flat fee was “immediately payable to [Mr. Wescott] no matter the amount of installment payments and/or fee paid”; (3) the “fees are non-refundable and considered as immediate work 2 performed and not subject to hourly charges”; and (4) the “fees are not subject to attorney client-trust accounts and can be collected by the attorney immediately.” Mr. Wescott did not explain the retainer agreement, including its fees provisions, to either Ms. or Mr. Johnson. Ms. Johnson signed the retainer agreement and ultimately paid Mr. Wescott a total of $7,000 between April and September 2020.

Mr. Wescott did not deposit any of those funds in an attorney trust account at any time. On April 15, 2020, Mr. Wescott entered his appearance on behalf of Mr. Johnson. Without informing Mr. Johnson, Mr. Wescott then arranged for another attorney, Purcell S. Luke, to assist with Mr. Johnson’s representation. On April 16, Mr. Luke filed a motion requesting a bond review hearing, which took place remotely on April 20.

Neither Mr. Wescott nor Mr. Luke prepared Mr. Johnson in advance of the hearing, which was attended by Messrs. Luke and Johnson but not Mr. Wescott. The court ordered that Mr. Johnson continue to be held without bond. On June 18, the court held a remote preliminary hearing.

Although Mr. Wescott attended that hearing with Mr. Johnson, he failed to prepare Mr. Johnson for it. At the conclusion of the hearing, the court found probable cause and continued Mr. Johnson’s detention without bond. On July 17, the Wicomico County State’s Attorney’s Office filed a criminal information transferring Mr. Johnson’s case to the Circuit Court for Wicomico County. In lieu of attending the initial appearance hearing scheduled for August 7, Mr. Wescott filed a line entering his appearance.

On August 10, Mr. Wescott filed preliminary papers, 3 including a standard request for discovery; a motion asserting standard, mandatory defenses; and a request for a jury trial. Throughout the representation, Mr. Wescott visited Mr. Johnson in the detention center only once, for approximately 15 to 20 minutes. During that meeting, Mr. Wescott briefly discussed the charges with Mr. Johnson but did not discuss other aspects of the case. Apart from that visit, Mr. Wescott spoke to Mr. Johnson only one other time, while on a three-way call with Ms. Johnson.

Mr. Wescott failed to answer or return subsequent calls. On or about October 20, a dissatisfied Mr. Johnson terminated Mr. Wescott’s representation. Mr. Wescott promptly filed a motion to strike his appearance, which the court granted following a hearing. The Office of the Public Defender entered its appearance on behalf of Mr. Johnson on December 14.

At a bond review hearing on January 29, 2021, the court ordered Mr. Johnson to be released from detention on pretrial supervision. On July 8, 2021, the State entered a nolle prosequi on all counts. Mr. Wescott did not return any portion of the fee he had collected to either Ms. or Mr. Johnson. Procedural History Ms. Johnson filed a complaint with the Commission on December 14, 2020.

After an investigation, the Commission, through Bar Counsel, filed a petition for disciplinary or remedial action on March 16, 2022. The hearing judge assigned by this Court conducted a hearing at which Ms. and Mr. Johnson and Mr. Wescott testified. The hearing judge then 4 issued a written opinion making findings of fact, which are consistent with the recitation above, and conclusions of law, including that Mr. Wescott violated: • MARPC 1.1 (Competence), when he failed to prepare Mr. Johnson for two hearings and failed to deposit and maintain unearned fees in his attorney trust account. • MARPC 1.4 (Communication), “when he: (1) failed to properly explain the retainer agreement to Mr. Johnson; (2) failed to inform Mr. Johnson that Mr. Luke would be assisting him with the representation and would be appearing in his place at the bond review hearing; and (3) failed to keep Mr. Johnson reasonably informed about the status of his case.” • MARPC 1.5 (Fees), when he: (1) charged a fee that, though it may have been reasonable at the start of representation, became unreasonable because “[m]ost of the legal services [he] claims to have performed on behalf of Mr. Johnson were either completely unsubstantiated or provided absolutely no value to Mr. Johnson’s defense” and (2) “charg[ed] an improper nonrefundable flat fee.” • MARPC 1.15 (Safekeeping Property), when he failed to: (1) deposit fees in his attorney trust account until they were earned; (2) obtain informed consent in writing to deposit the fees elsewhere; and (3) explain the risks of, or alternatives to, not placing fees in his attorney trust account. • MARPC 1.16 (Declining or Terminating Representation), “when he failed to provide Ms. Johnson and Mr. Johnson with a refund of the unearned portion of the fee.” • MARPC 8.4(a) and (d) (Misconduct), when he “failed to perform any meaningful legal services in furtherance of Mr. Johnson’s defense” and violated other rules of professional conduct. Neither party filed exceptions to any aspect of the hearing judge’s findings of facts or conclusions of law. 5 DISCUSSION I. THE HEARING JUDGE’S CONCLUSIONS OF LAW ARE SUPPORTED BY CLEAR AND CONVINCING EVIDENCE.

As noted, when there are no exceptions filed, we may treat the hearing judge’s factual findings as established. See Attorney Grievance Comm’n v. Maiden, 480 Md. 1, 6 (2022); see also Rule 19-740(b)(2)(A). However, we review the hearing judge’s conclusions of law without deference, Rule 19-740(b)(1), and independently determine whether Bar Counsel established a violation of the rules by clear and convincing evidence, see Attorney Grievance Comm’n v. Silbiger, 478 Md. 607, 617 (2022). Based upon our independent review of the record, we agree that the Commission established multiple violations of the MARPC by clear and convincing evidence.

Mr. Wescott’s conduct underlying those violations generally falls into two categories: (1) failures in his representation of Mr. Johnson; and (2) violations relating to the fee he charged and partially collected. We address each category in turn. A. Mr. Wescott Violated Multiple Rules of Professional Conduct by Failing to Prepare and to Communicate with, or Provide Meaningful Legal Services to, Mr. Johnson. The hearing judge concluded that Mr. Wescott violated multiple rules of professional conduct by failing to: (1) prepare Mr. Johnson for hearings; (2) adequately explain the retainer agreement to Ms. or Mr. Johnson, communicate with Mr. Johnson about his case, or inform him that another attorney would be assisting in the case; and (3) generally perform meaningful legal services in furtherance of Mr. Johnson’s defense. 6 An attorney must provide a client with competent representation, which “requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” MARPC 1.1.

Representation is not competent if an attorney fails to “adequately prepare a client and communicate viable options to that client in advance of trial.” Attorney Grievance Comm’n v. Yi, 470 Md. 464, 491 (2020); see also Attorney Grievance Comm’n v. Ficker, 399 Md. 445, 450 (2007). Mr. Wescott failed to provide competent representation when he did not prepare Mr. Johnson for, or inform him about the nature and purpose of, the hearings on April 20 and June 18, 2020. In doing so, Mr. Wescott violated MARPC 1.1. MARPC 1.4 separately provides, in relevant part, that: (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 19-301.0 (f) (1.0), is required by these Rules; (2) keep the client reasonably informed about the status of the matter; [and] (3) promptly comply with reasonable requests for information[.] *** (b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.

When a client makes a reasonable request for information, an attorney must promptly respond or, if a prompt response is not feasible, “acknowledge receipt of the request and advise the client when a response may be expected.” MARPC 1.4 cmt. 4. “Client telephone calls should be promptly returned or acknowledged.” Id.; see also Attorney 7 Grievance Comm’n v. Proctor, 479 Md. 650, 683 (2022) (“MARPC 1.4 can be violated if a client has made several ‘reasonable requests for information, which may include a general status update or for documents pertaining to the case[,]’ to no avail.” (quoting Attorney Grievance Comm’n v. Planta, 467 Md. 319, 349 (2020))). Mr. Wescott failed to adequately communicate with Mr. Johnson throughout the representation. Specifically, Mr. Wescott did not: (1) properly explain the retainer agreement to Ms. or Mr. Johnson; (2) tell Mr. Johnson about Mr. Luke’s participation in the case, including his presence at the bond review hearing in place of Mr. Wescott; or (3) keep Mr. Johnson informed about the status of his case. Mr. Wescott met with Mr. Johnson in person only once for 15 to 20 minutes, near the beginning of the representation.

Mr. Wescott also spoke to Mr. Johnson on the telephone only once and did not return subsequent calls. Mr. Wescott’s conduct violated MARPC 1.4. In committing those violations of MARPC 1.1 and 1.4, Mr. Wescott also necessarily violated MARPC 8.4(a), which provides that it is misconduct to “violate or attempt to violate the Maryland Attorneys’ Rules of Professional Conduct[.]” See Attorney Grievance Comm’n v. Moawad, 475 Md. 424, 479 (2021) (“This Court has noted that when a respondent has violated multiple Rules of Professional Conduct, he or she has ‘necessarily violated M[A]RPC 8.4(a) as well[.]’” (quoting Attorney Grievance Comm’n v. Gallagher, 371 Md. 673, 710-11 (2002))). 8 B. Mr. Wescott Violated Multiple Rules of Professional Conduct by Charging an Unreasonable Fee, Failing to Keep Unearned Fees in a Separate Account, and Failing to Refund Unearned Fees upon Termination of Representation. The second category of violations the hearing judge found relates to the fees Mr. Wescott charged Ms. and Mr. Johnson.

Specifically, the hearing judge concluded, and we agree, that Mr. Wescott engaged in professional misconduct by: (1) charging an