72 A.3d 174
Md.2013Background
- Respondent Melissa D. Gray represented Magdalene Foard (divorce/QDRO) and Hillary Figinski (Corso v. Figinski escrow distribution). Bar Counsel alleged multiple Rule violations in both matters and for failing to cooperate with Bar Counsel.
- Foard: QDRO preparation and transmission were delayed (dispute over when QDRO was submitted/signed); client complained about lack of direct contact; opposing counsel repeatedly urged completion. Hearing judge found no clear and convincing evidence of lack of diligence or communication but found Gray failed to respond to Bar Counsel (Rule 8.1(b)).
- Figinski/Corso: Funds from sale were held in a joint escrow at Bay National Bank; opposing counsel (Carney) repeatedly notified Gray that client funds remained unclaimed; Gray did not timely distribute or properly communicate, checks were issued in 2008 and again in 2012 and may never have been cashed. Hearing judge found violations of diligence and communication but not competence, Rule 1.15(e), or 1.16; Gray admitted she failed to respond to Bar Counsel (Rule 8.1(b)).
- Bar Counsel excepted only to the hearing judge’s conclusion that Rule 1.15(e) did not apply; the Court sustained that exception, holding Rule 1.15 applies to jointly created escrow/trust accounts and each attorney sharing fiduciary responsibility must ensure proper management.
- Procedural posture: evidentiary hearing before a circuit judge; findings adopted as prima facie correct; no exceptions by respondent; this Court independently reviewed law and imposed sanction: 60-day suspension (to start 30 days after the order) and taxed costs against Gray.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Gray breached duties of diligence and communication (Rules 1.3, 1.4) in Foard matter | Bar Counsel: delays and limited client contact showed lack of diligence/communication | Gray: QDRO was prepared and represented as on judge’s desk; communications were adequate; judge’s findings supported no clear violation | Court affirmed hearing judge: no clear and convincing evidence of 1.3 or 1.4 violations in Foard |
| Whether Gray breached duties (competence, diligence, safekeeping, termination, misrepresentation) in Figinski/Corso matter (Rules 1.1, 1.3, 1.4, 1.15, 1.16, 8.4(c)) | Bar Counsel: failed to distribute escrowed client funds, failed to communicate, possible misrepresentations and mishandling of trust funds | Gray: disputed some facts; argued compliance with order and that funds were handled by bank or opposing counsel; contested applicability of Rule 1.15 to the jointly created escrow | Court: found clear and convincing evidence of failures of diligence and communication (1.3, 1.4) but no clear evidence of 1.1, 1.16, or 8.4(c); initially found 1.15(e) did not apply but Court reversed on exception and held Rule 1.15 applies to jointly-created trust accounts |
| Whether Gray violated Rule 8.1(b) by failing to cooperate with Bar Counsel | Bar Counsel: Gray repeatedly failed to respond to lawful demands for information in both matters | Gray: acknowledged some non-responses (medical leave, etc.) and contested scope | Court: by Gray’s own admission there was clear and convincing evidence she violated Rule 8.1(b) in both matters |
| Appropriate sanction given violations, prior discipline, and precedent | Bar Counsel: recommends indefinite suspension; cites seriousness and prior reprimand | Gray: requested reprimand based on mitigation and prior facts | Held: Court imposed 60-day suspension (commencing 30 days after order), taxed costs against Gray — sanction calibrated to pattern, prior discipline, failures to cooperate, and comparable cases |
Key Cases Cited
- Attorney Grievance Comm’n v. Chapman, 430 Md. 238 (2013) (indefinite suspension with limited right to reapply for serious, multiple violations and deceitful conduct)
- Attorney Grievance Comm’n v. Walker-Turner, 428 Md. 214 (2012) (sixty-day suspension for failure to appear and repeated discipline history)
- Attorney Grievance Comm’n v. Brown, 415 Md. 269 (2010) (ninety-day suspension for repeated deliberate deceit to client and Bar Counsel)
- Attorney Grievance Comm’n v. Gordon, 413 Md. 46 (2010) (forty-five day suspension for filing misleading documents and later disclosure)
- Attorney Grievance Comm’n v. Tanko, Jr., 408 Md. 404 (2009) (sixty-day suspension where misleading filings and mitigating factors existed)
- Attorney Grievance Comm’n v. Floyd, 400 Md. 236 (2007) (ninety-day suspension for intentional deceit in employment application)
- Attorney Grievance Comm’n v. Hill, 398 Md. 95 (2007) (thirty-day suspension for failing to file EDRO, poor client notice, and failures to cooperate)
- Attorney Grievance Comm’n v. Obi, 393 Md. 643 (2006) (thirty-day suspension for commingling trust funds and failing to cooperate)
- Attorney Grievance Comm’n v. McClain, 373 Md. 196 (2003) (thirty-day suspension for mishandling escrow and naming of trust account)
- Attorney Grievance Comm’n v. Fezell, 361 Md. 234 (2000) (sixty-day suspension primarily for failure to cooperate with Bar Counsel and related rule violations)