251 A.3d 1131
Md.2021Background
- McCarthy represented View Point Medical Systems in a federal appeal; he failed to file the opening brief, appendix, or a motion to extend time, and the Fourth Circuit dismissed the appeal for failure to prosecute.
- McCarthy knowingly told his client, Jonathan Radding, that he was working to reinstate the appeal, but never drafted or filed a motion to reinstate.
- McCarthy was temporarily suspended from practice for nonpayment of the Client Protection Fund assessment; while suspended he continued to advise and act for Radding in a foreclosure matter.
- Radding filed a complaint with Bar Counsel; McCarthy repeatedly failed to provide timely or complete responses to Bar Counsel’s requests and discovery, prompting Bar Counsel to move for sanctions.
- The hearing judge imposed discovery sanctions, deemed the matters in the request for admissions admitted, and limited McCarthy’s ability to present evidence; the judge found multiple MARPC violations.
- The Court of Appeals affirmed the findings and, applying precedent on intentional dishonesty and related aggravating factors, disbarred McCarthy.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McCarthy violated duties of diligence and communication (MARPC 1.3, 1.4) by missing appellate deadlines and misleading client | McCarthy missed multiple deadlines, failed to inform client, and intentionally misled client about reinstatement efforts | McCarthy blamed client’s impairment and personal stress as causes for missed work; contested ability to present evidence after sanctions | Court held clear and convincing evidence McCarthy violated MARPC 1.3 and 1.4 (including intentional misrepresentation) |
| Whether McCarthy unlawfully practiced while suspended and thus violated MARPC 1.16, 5.5 and 8.4(b) | Bar Counsel: McCarthy continued to act as attorney for Radding while suspended, constituting unauthorized practice and a statutory misdemeanor | McCarthy did not successfully dispute notice/service of suspension or argue lack of intent | Court held McCarthy violated MARPC 1.16(a)(1), 5.5(a), 5.5(b)(2), and 8.4(b) for practicing during suspension |
| Whether Bar Counsel’s discovery service via thumb/USB drive was deficient and whether sanctions were improper | Bar Counsel argued service was effective, McCarthy failed to timely respond, and admissions were deemed admitted under Rule 2-424(b) | McCarthy argued service via electronic media violated Md. Rule 1-321(a) and that Rule 2-432 required a motion to compel before sanctions | Court held McCarthy forfeited timely objections; regardless, requests for admission were deemed admitted by operation of Md. Rule 2-424(b) once responses were late |
| Whether McCarthy’s failure to respond to Bar Counsel violated MARPC 8.1(b) and whether sanction (disbarment) was appropriate | Bar Counsel: willful failure to answer lawful demands, pattern of obstruction, and intentional dishonesty warranted disbarment | McCarthy sought a suspension and contended he was entitled to present a defense and mitigation | Court held McCarthy violated MARPC 8.1(b) and, considering aggravating/mitigating factors and precedent, imposed disbarment |
Key Cases Cited
- Attorney Grievance Comm’n v. Barton, [citation="110 A.3d 668"] (2015) (Rule 2-424(b) deems matters admitted if responses are untimely)
- Attorney Grievance Comm’n v. Robertson, [citation="929 A.2d 576"] (2007) (failure to respond to requests for admission conclusively establishes matters)
- Attorney Grievance Comm’n v. Kapoor, [citation="894 A.2d 502"] (2006) (requests for admission not answered are deemed admitted)
- Slate v. Attorney Grievance Comm’n, [citation="180 A.3d 134"] (2018) (framework for sanctions and factors considered in disciplinary sanctions)
- Attorney Grievance Comm’n v. Davenport, [citation="244 A.3d 1032"] (2021) (disbarment appropriate for abandonment, failure to respond to Bar Counsel, and multiple MARPC violations)
- Attorney Grievance Comm’n v. Miller, [citation="223 A.3d 976"] (2020) (disbarment for intentional dishonesty, false statements, and pattern of violations)
- Vanderlinde, [citation="773 A.2d 463"] (2001) (disbarment generally appropriate for intentional dishonesty absent compelling extenuation)