*1
Alan HARRIS. (Subtitle AG) Term, Sept. Misc. No. Maryland. Appeals
Court 6, 2002. Nov.
5H *4 Hirshman, Grossman, Melvin Bar Counsel and Glenn M. Deputy Attorney Bar Counsel for the Grievance Commission Maryland, petitioner. for Baltimore,
Benjamin Lipsitz, respondent. for BELL, C.J., ELDRIDGE, RAKER, Argued and before WILNER, CATHELL, BATTAGLIA, HARRELL and JJ.
CATHELL, Judge. 24, 2001, September Attorney
On Grievance Commission Hirshman, Counsel, Maryland, petitioner, by Melvin Bar Grossman, Counsel, Deputy and Glenn M. Bar a petition filed1 Harris, disciplinary against for action Alan Edgar respondent, multiple Maryland violations of Rules Professional (MRPC). petition alleged respondent, Conduct representations Emily based on his Lewis and Preston 1.4(a) Henderson, 1.1, 1.3, had Lawrence violated MRPC and (b) 1.7(b) 1.8(a) 1.9(a) (b), 1.5(a), (c), (c), and (j), and and (c) (d).2 (b), 3.2, 8.4(a), petition initiating disciplinary pro- 1. filed a Petitioner this Court ceedings against Edgar pursuant Maryland Alan Harris Rule 16- 709(a), "[c]harges against attorney which states an shall be filed acting the Bar Counsel at the direction of the Review Board.” This processed grievance attorney case arose and was under the rules time, they effect at that as were stated in the 2001 edition of the Thus, Maryland they Rules. we refer to those relevant rules as existed July prior to provisions 2. The relevant of the MRPC state: .Competence, "Rule 1.1. lawyer provide competent representation A shall ato client. Com- skill, petent representation requires legal knowledge, thorough- preparation reasonably necessary representation. ness and for the Diligence. 'Rule 1.3. *5 lawyer diligence promptness A shall act with reasonable and in representing a client. "Rule 1.4. Communication. (a) lawyer keep reasonably A shall a client informed about the promptly comply requests status of a matter and with reasonable information. (b) lawyer explain reasonably A shall a matter to the extent neces- sary permit regarding to the client to make informed decisions the representation. "Rule 1.5. Fees. (a) lawyer's A fee shall be reasonable. The factors to be considered determining following: in the reasonableness of a fee include the (1) required, novelty difficulty the time and labor the of the involved, questions requisite perlorm legal and the skill to the service properly; (2) likelihood, client, apparent the if acceptance to the the particular employment preclude employment by the will other the lawyer; (3) customarily charged locality legal the fee in the for similar services; (4) obtained; the amount involved and the results client, (5) imposed by by the time limitations the or the circum- stances; (6) length professional relationship the nature and of the with the client; (7) experience, reputation, ability lawyer lawyers the of the or services; performing the (8) contingent. whether the fee is fixed or (b) client, lawyer regularly When represented the has not the client, basis or rate of preferably the fee shall be communicated to the writing, commencing before or within a reasonable time after representation. (c) may contingent A fee be on the outcome of the matter for which rendered, except the service is contingent in a matter in which a fee (d) prohibited by paragraph is or other law. The terms of a contin- gent agreement writing. fee shall be communicated to the client by
The communication shall state the method which the fee is to be determined, including percentage percentages or tha1 shall ac- settlement, lawyer appeal, litigation crue to the event of trial or expenses and other recovery, be from the deducted and whether expenses such contingent are to be deducted before or after the fee is matter, Upon contingent calculated. lawyer conclusion of fee provide shall stating the client with a written statement the outcome matter, and, recovery, showing if there ais the remittance the client and the method of its determination.... "Rule 1.7. Conflict of interest: General rule. (b) lawyer represent A shall representation a client if the of that may materially by client lawyer’s responsibilities be limited interests, person, lawyer’s another client or to a third or own
unless: 16-752,3 27, 2001, September pursuant Maryland Rule
On A. the matter Marcella Hol- this Court transmitted *6 (1) reasonably lawyer representation believes the will not be the affected; adversely and (2) the client after consultation. consents (b) (c) (a) by required paragraphs and shall in- The consultation representation explanation implications of clude of the the common resulting lawyer’s responsibilities any from the and another, limitations interests, lawyer’s advantages or from own as well as the and risks involved. "Rule 1.8. Conflict of interest: Prohibited transactions. business, (a) lawyer property a A shall not enter into financial or with client unless: transaction a client; (1) equitable fair and to the and transaction is (2) independent the client to seek the advice counsel is advised given opportunity a to do in the transaction and is reasonable so. lawyer acquire proprietary (j) A shall interest in the cause of not conducting subject litigation lawyer or is for a action matter client, except lawyer may: that the (1) acquire granted by lawyer’s law to fee a lien secure the or expenses; and (2) subject to 1.5 contract with a client for a reasonable contingent fee in a civil case. Former "Rule 1.9. Conflict of interest: client. formerly represented lawyer who in a matter A has a client shall thereafter: (a) substantially represent person in the same or a another related materially person’s in which interests adverse to matter are client unless the client consents after interests former former consultation; or (b) relating representation to the to the disadvan- use information tage except [confidentiality of of the former client as Rule 1.6 infor- permit respect would to a when the mation] client or informa- generally has become known. tion litigation. Expediting “Rule 3.2. litigation lawyer expedite efforts A shall make reasonable consis- with the tent interests of the client. 8.4. "Rule Misconduct. professional lawyer It is (a) for a misconduct to: Conduct, attempt violate or to violate Rules of Professional so, knowingly through assist to do or induce another or do so acts another; fraud, (c) engage involving dishonesty, misrep- in conduct deceit or ' resentation; (d) engage prejudicial that is the administration conduct justice____” [Alteration added.] states, Maryland Specifically, part: Rule 16-752 in relevant land City of the Circuit Court for Baltimore to conduct a hearing and findings to make of fact and conclusions of law.4 4, 2002, evidentiary hearing
On March and an was held 17, 2002, hearing judge. before the On Holland June Findings issued her Memorandum of of Fact and Conclusions Law and found clear and evidence 1.4(a) 1.1, 1.3, (b), respondent 3.2 violated MRPC and and 8.4(a) 1.8(a) 1.5, 1.7, (j), the Lewis matter and MRPC and 8.4(a) and hearing judge the Henderson matter. respondent further concluded that did not violate MRPC 8.4(d) in the Lewis matter and did not 1.9 violate MRPC 8.4(c) (d) in the Henderson matter. The record was then transferred from judge to our Court for oral argument. petitioner respondent, Both pursuant to for- *7 Maryland 16-711(b)(2),5 mer Rule excep- filed with this Court tions to hearing judge’s the Findings Memorandum of of Facts and Conclusions of Law.6 designating judge. "Rule 16-752. Order (a) Upon filing Order. Disciplinary the of a Petition for or Remedi- Action, Appeals may al the designating Court of enter an order
judge any of circuit court hear responsible the action and the clerk maintaining for designation require record. The order of shall judge, after attorney, consultation with Bar and the Counsel scheduling defining enter a discovery setting order the extent of and motions, completion discovery, filing dates for the of hearing.” and 16-711(a) Maryland 4. Former Rule stated that "[a] written statement of findings of fact and conclusions of law shall be filed in the record of proceedings copies parties.” and shall be to all sent 16-711(b)(2) "[wjithin Maryland 5. Former Rule days stated that filing after the Appeals, of the record in attorney the Court of or the may Bar Counsel file in Appeals exceptions the Court of findings to the may and respecting conclusions and make recommendations the disci- plinary imposed. sanction to be ...” Respondent’s 6. In "EXCEPTIONS TO HEARING JUDGE'S 'MEMO- RANDUM OF FINDINGS OF FACTS AND CONCLUSIONS OF ” LAW,’ "excepts we hearing judges note that he to the conclusions that he violated ... respect Rule[] 1.9 ... with to the Henderson matter.” Judge Holland respect found no violation 1.9 with to the by respondent Henderson matter inapplicability because of the rule’s petitioner the facts of this except case and does not to her conclusion of violation; therefore, no we shall Additionally, not discuss Rule 1.9. Facts
I. Maryland Bar of on June to the Respondent was admitted in his office located practice his of law and maintains Action Disciplinary filed City. The Petition in Baltimore No. 2000- complaints, BC Docket on two this case was based 2000- Docket No. 120-4-2, Emily Lewis BC Complaint 282-4-2, Henderson. of Preston Lawrence Complaint are as of Law7 of Fact and Conclusions Findings Holland’s follows: together with the at testimony offered
“The evi- by clear Exhibits received established to the Petition. following pertinent facts dence the FACTS BACKGROUND practice law the attorney licensed “Respondent is an practitioner with 1960. He is a solo Maryland since State Street, Paul Balti- at 110 Saint office located principal represented has be- more, Maryland clients in automobile twenty thousand tween fifteen negligence cases. for violation previously sanctioned
“Respondent Rules of Professional Conduct. Maryland January court on appeared before this previously has also Disciplinary Action 25, 2001, hearing on a Petition for for a As a result of Attorney Commission. by the Grievance filed Mary- to have violated Respondent was found hearing, *8 1.4(a), 1.4(b), 1.3, of Professional Conduct: land Rules 1.16(a)(2) and 3.2. 8.4(c) respect alleged respondent Rule petitioner also violated no violation of this matter. Holland found the Henderson respondent matter and neither 8.4 in this Henderson
provision of Rule no violation of except Judge Holland's conclusion of petitioner nor therefore, 8.4(c). 8.4(c); Rule we shall not discuss opinion quote provisions of the beginning pages we In the of this and, throughout opinion, in the present involved in the case MRPC provisions generally the MRPC brevity, we will discuss interest of involved, rewriting the MRPC. the text of instead of by Respondent “This Petition raises claims misconduct regarding clients, representation Emily of two former Respondent rep- Lewis and Preston Lawrence Henderson. Lewis, Emily resented Lewis in the case of et v. al. Mihialo- vici, al; et filed the District of Maryland Court for 7, 1992, City February Baltimore on case number 470592. Respondent represented Preston Henderson the case of Henderson, State Farm Mutual v. Preston in the filed Circuit for Maryland City Court on Baltimore November 27, 1996, case number 24-C-96-204052 and v. Henderson Inc., al., Lane Ashley Designs, et also filed the Circuit Maryland Court of for Baltimore on City January case number 24-C-99-000254. LEWIS,
FACTS RELEVANT TO et MIHIALOVICI, al. V. al. et (hereinafter Lewis, Lewis’), “Emily ‘Ms. retained damages injuries recover for by sustained son, (hereinafter, her minor ‘Michael’), Michael Lewis as a result his being struck Septem- a taxicab on or about 12,1989. date, ber Also on this signed Ms. Lewis a retainer agreement provided by Respondent. filed suit on against behalf of Michael the driver and the taxicab 7, 1992, on company February in the District Court Maryland Lewis, City, Mihialovici, Baltimore et. Al. v. at., et case number 470592.
“Respondent was initially unable to serve the taxicab or company driver, the driver. The John R. Mihialovici was process 4,1995. served with on or about March The taxicab company was never served. 18, 1993,
“In a letter dated June notified Ms. Lewis that trial in this case Septem- was scheduled for letter, ber 1993. Also in this Respondent explained that he had not served the defendant if he could not serve September 3, defendant before the trial would be re- Although scheduled. Ms. Lewis and Michael did Lewis appear in court on September Respondent did not.
520 20, April Respon- for 1995. trial
“The was rescheduled The trial was rescheduled day. on this appear dent did July Lewis[] the again July 1995. On neither for result, case As a the [family] Respondent appeared. nor Judge August R. On by Caplan. Gale was dismissed to the Respondent filed a Motion Vacate Order 15, 1995, was Motion denied August On Dismissal. to failed Alan M. Resnick because the Motion. sign 25, 1995, Respondent filed another September
“On and that Motion of Dismissal to Vacate the Order Motion 6, 1995. by Judge Caplan R. on October denied Gale was February 25,1997, against company the taxicab case On 3-507 lack of Maryland [for to pursuant dismissed was prosecution]. him discharged Lewis
“Respondent alleged Michael alleged that Lewis of 1995. He also Michael September that Michael suggested to him. Respondent sue threatened attorney. Respondent never withdrew another hire [family] Lewis[ to ] nor did he communicate appearance represent no them. longer willing was that he v. TO FARM MUTUAL STATE FACTS RELEVANT v. & HENDERSON PRESTON HENDERSON DESIGNS, et al. LAYNE INC. ASHLEY represented Mr. in connec- “The Henderson about bankruptcy case or Chapter with a tion Respondent has known Mr. Henderson members family thirty-five forty years. for of his 1996, Mr. lived at 2240 August or about Henderson “In City and while in Baltimore he resided Keyworth Avenue there, Respon- property subject foreclosure. at a property foreclosure sale purchased dent would allow him $17,000.00 and told Mr. that he Henderson property. at remain Mr. agreement between “There was no 'written Mr. re- Respondent regarding Henderson’s Henderson *10 agree- no also written There was property. of the purchase respect with obligations Mr. Henderson’s regarding ment property. to the rent, expenses related taxes or other in an automobile 1996, was involved Mr. Henderson “In rep- Respondent damages. The for and was sued accident State lawsuit, resulting i.e. in the Mr. Henderson resented in favor Henderson. judgment A Mutual v. Preston Farm $11,935.00 was approximately of Farm Mutual State 3, 1997. September on or about entered 1997, against Mr. 4, filed suit Respondent September “On for Baltimore Maryland of in the District Court Henderson 11, 1997, a default September On City seeking back rent. Respondent against Mr. Henderson. was entered judgment $7,200.00. On or amount of judgment was awarded a 1997, of 15, filed Writ Respondent September about were wages Wages and Mr. Henderson’s of Garnishment garnished. later Layne by Ashley employed while
“Sometime designer, Mr. Inc. as a window treatment Designs, concerning sexual advice sought Respondent’s Henderson Mr. Henderson place employment. at his harassment Layne Designs, Inc. Ashley employment continued his Mr. Henderson in March 1998. until sometime in connec- Respondent discharged at that time and retained compensation. He unemployment his claim for tion with him on his claims Respondent represent also retained against his former discharge harassment and abusive sexual employer. Ash- against filed suit January
“On and for Inc. for harassment ley Layne Designs, sexual City, Baltimore in the Circuit Court for discharge abusive nego- after April In number 24-C-99-000254. case agreement was reached. parties, an[ tiation between the ] general settlement and signed a confidential parties The settlement, Mr. Henderson was of the part release. As the entire $11,000.00. retained awarded Layne Designs $11,000 Ashley in the as his for his work fee case.
CONCLUSIONS OF LAW REGARDING
EMILY AND MICHAEL LEWIS respect Respondent’s “With representation the case Lewis, Mihialovici, al., et al. alleges V. et Petitioner Maryland violated the Rules of Professional Conduct, 1.1, 1.3, 1.4, including rules: 3.2 and 8.4. This finds by Court clear and evidence that the Re- Harris, spondent, Edgar Maryland Alan has violated the Conduct, specifically: Rules of Professional 1. 1.1 failing competently represent Rule the Lew- family. is by failing defendants, 1.3 all to serve *11 dates,
failing appear failing to for scheduled trial self-imposed to cure defects in the Lewis’ case. 1.4(a) by failing 3. keep family Rule to the Lewis reason- ably informed of the status of their case. 1.4(b) by
4. failing explain Emily to to Lewis the effect that an of order dismissal based on a failure to case; appear by would have on failing explain her the effect that an of pursuant order dismissal to Rule 3-507 would have on her case. by failing
5. Rule 3.2 all serve of the defendants and by failing to primary serve the defendant until March of 1995. 8.4(a) by violating
6. Rule Rules 1.3 and 3.2. 1.1 [Competence] Violation Rule “... alleged Respondent Petitioner by violated Rule 1.1 failing family to advise the changes Lewis of trial date as Lewis, failing well as to serve all of the in defendants et al. Mihialovici, v. et al.
“In following paragraphs, this Court finds that Re- spondent by failing violated Rule 1.3 to advise the Lewis family changes. of trial date also Respondent We find that by failing violated Rule 3.2 all of serve the defendants in Lewis, Mihialovici, 1.1, et. v. et al. respect With to Rule that Respondent’s Court finds violation of Rules 1.3 and significant preparation 3.2 shows a lack of and thorough- Therefore, by ness. we find clear and convincing evidence Respondent 1.1. violated Rule
Violation Rule 1.3 [Diligence] Respondent argues “. .. diligent represent- he was ing [family] because Lewis[ ] he filed their case before expired, the statutes of limitations informed them of trial advance, attempted dates process effect service of on the defendants. is correct in that did file Lewis, Mihialovici, the case et al. v. et al. before the expiration that, the statute limitations. It’s also true 18, in a Emily letter from Lewis dated June 1993, Respondent notified Mrs. Lewis that trial was sched- for September p.m. Respondent uled 1993 at 1:15 also explained that letter that he had been unable to serve the if perfect defendant and he could not September service 3, the trial would be rescheduled. September
“No trial was held on 1993. The Lewis[ ] [family] appeared but did not. The case had postponed been but Respondent failed to inform the Lewis’ of that September fact before 3. The trial was rescheduled for April Again, Respondent 1995. appear. did not again trial was for July Again, rescheduled Re- *12 spondent did not appear. appear The Lewis’ did not either and the case was dismissed for that reason. On each of occasions, Respondent these the did not appear for sched- occasions, trial uled dates. Also on Respon- these three the (or not) notify dent failed to they the Lewis’ that did did to appear. have Respondent
“The filed February the Lewis’ case in of Mihialovici, Mr. 1992. the driver of the cab that allegedly struck Michael Lewis was not served until March of 1995. driver, The taxicab company, employed who the was never Petition, served. At on Disciplinary the this Re- spondent testified that he reissued service for the driver five times, or always by private six process server.
“He company, also that the taxicab as well the testified as driver, February From 1992 to ‘ducking’ were service. 1995, Respondent years, of about three period March by any the attempted to serve defendants other never private process than server. means in July of of Lewis’ case of “As a result the dismissal the 1995, Respondent a Motion to Vacate the of filed Order 15, 1995, August August on 1995. On this dismissal Respondent sign Motion was denied because failed filed Motion to Vacate Respondent Motion. The another September of Dismissal on 1995. On October the Order 25,1997, 6.1995, February also denied. this Motion was On taxicab was against company Lewis’ case dismissed Maryland Respondent solely Rule 3-507.8 was pursuant July case in responsible Lewis’!] the dismissal had at primary The defendant been served least 3 1995. [family] prior ap- Lewis!] months the dismissal. The dates, in court trial peared previously for the two scheduled April 1993 and 1995. did September i.e. Finally, July on of these two dates. on not either appear 13.1995, Respondent appear notify nor did he again, did clients, Lewis’, they appear. that needed any Not fault of through Lewis’ case dismissed. their own, Respondent’s inability adequately but because of Therefore, court communicate with them. finds violated clear evidence 1.3. Rule 14(a)
Violation Rule [Communication] alleges “... failed to keep Petitioner [family] reasonably status of informed of the their ] Lewis! Respondent argues case. he notified the Lewis!] argues trial dates. [family] scheduled He also that he all calls from Ms. or regarding took Lewis Michael Lewis their case and never failed to return a call he missed. Maryland jurisdiction titled 3-507 is "Dismissal for lack or judice. prosecution.” prosecution Lack is in the case sub evident *13 above, Respondent “As noted it is correct that sent Ms. notifying Lewis a letter her the first scheduled trial date However, in the two trial case. there were other dates Respondent to inform Lewis[ ] scheduled failed [family] Respondent’s about. failure to inform his clients about these other two dates resulted in the dismissal of their case. The reason the dismissal was i.e., plaintiffs, [family] attorney, or Lewis[ ] their appear. Respondent failed to two Motions to later filed dismissal, first 1995 and August Vacate the on September second on 1995. Both motions denied. were [family] never in writing Lewis[ informed the ] that their case had been dismissed. denied,
“After second Motion to Respon- Vacate was correspondence dent had no further with Ms. or Lewis matter, Michael Lewis. At the on this testified that him in Septem- Michael Lewis called sometime conversation, During ber of 1995. Respondent testifies him. Respondent Michael threatened sue told Mi- longer represent chael he could no him and he advised attorney. Respondent Michael retain another also testi- agreement fied he did not have a retainer Michael Lews, mother, Ms. signed Lewis. Michael’s a retainer agreement September on testified eighteen that when years age Septem- Michael reached ber of he should have had sign Michael a retainer agreement but he never did so. respect Lewis,
“With to telephone contact with Ms. Re- spondent testified that he never avoided her calls and never message. failed to return a He testified that Ms. did Lewis answering not have an machine and therefore when she was to, not to speak available he could not a message. leave “Ms. Lewis acknowledged the fact that she did have However, an answering Respon- machine. she testified that dent failed to return her calls on several occasions. Ms. Lewis that on testified one occasion called Respondent she at his Respondent’s home. son took the call and informed *14 case, not his handling would her Lewis that he be
Ms. father. matter, Respondent testified
“Also at the on this had dismissed Lewis that the case been that he told Michael him in of 1995. It’s clear September called when Michael by Sep- Lewis agreement, signed Ms. from the retainer 1989, [respondent’s] was in fact client. [ ] of that she tember victim, was a was the actual he Although Michael Lewis could not of incident and therefore minor at the time to agreement. Respondent In order for sign the retainer mother, Lewis, Lewis, sign had to Michael his Ms. represent agreement. the retainer above, by finds facts this court light
“In stated evidence, that Petitioner violated clear 1.4(a) Lewis, client, by failing keep to Ms. his reason- Rule ably of the status of her case. informed l.](b) [Communication]
Violation Rule of 1.4(b) Respondent violated Rule alleges “... Petitioner to her happen to Ms. Lewis what would explaining of on the process if was unable to effect service case he explain did Respondent counters he defendants. failing to serve the consequences what the Ms. Lewis would be. defendants Lewis,
“In a from to Ms. dated June letter 1993, trial 18, Respondent informed Ms. Lewis that a date 3, p.m. 1993 at 1:15 Also September been scheduled for had letter, that he would now Respondent explained in this attempt upon service the defendants. effect accomplished ‘if by saying this was concluded letter scheduled, time, if not it go trial would on as but then get trial date.’ [ ] would another not inform Ms. or Michael Lewis “Respondent did Lewis 13,1995. July that their case was dismissed on argument of his presented support no evidence if no that their case would be dismissed informed clients appeared on their one behalf. August Caplan
“On Honorable Gale R. pursuant Maryland entered an Order Dismissal Rule 25,1997, prosecution. 3-507 for February lack On Caplan again pursuant entered an Order of Dismissal Maryland prosecution. Respondent 507 for lack of filed separate Motions Vacate these on two occa- orders sions, August i.e. 1995 and September 1995. Both motions hearing, Respondent were later denied. At the presented no evidence that he informed Ms. Lewis two Orders Dismissal. was also no presented by Respondent
“There evidence *15 that explained the effect of orders on these Ms. Lewis’ finds, by evidence, case. This court convincing clear and Respondent’s that the failure to to explain Ms. Lewis the effects of the of Orders Dismissal on her case a constituted 1.4(b). violation of Rule
Violation Rule 3.2 [Expediting Litigation] alleged Petitioner that Respondent by violated 3.2 Rule “... failing by to serve all of failing the defendants and to serve defendant, driver, primary i.e. the taxi until March of 1995. Respondent countered that he was unable serve company, the taxicab and unable to serve taxicab driver until they March evading because were service. Respondent “The filed the in February Lewis’ case Mihialovici, 1992. Mr. allegedly the driver of the cab that struck Michael Lewis served until March of 1995. company The taxicab employed who the driver was never Petition, served. At the on hearing Disciplinary this Re- spondent testified that he reissued service driver five times, or six always by private process server. also company
“He testified that the taxicab and the driver ‘ducking’ February were From service. 1992 March period years, Respondent about three never attempted by serve the defendants other means available Rules, under the such filing as a Motion for Publication. Respondent period allowed a of approximately years elapse attempting without process by any service of other finds, by court private process server. This
means than evidence, convincing that this constituted a viola- clear and tion of Rule 3.2. 84(d) 84(d) and [Misconduct] Rule
Violation of Lewis, that this court finds regards “... Ms. With 1.3,1.4 result, and As a violated Rules 3.2. evidence, finds, by convincing clear court also and 8.4(a). Rule Respondent violated no at the presented “... Petitioner evidence 8.4(d) regards Rule to Ms. Lewis’ violated cannot convinc- case, by this Court clear and and therefore 8.4(d). violated ing find that evidence CONCLUSIONS OF LAW REGARDING HENDERSON
PRESTON Respondent’s representation in the cases respect to “With Farm, Preston Henderson Mutual v. State al., Inc., et Designs, v. Lane Ashley Henderson Petitioner Maryland Rules respondent violated alleges 1.5, 1.7, Conduct, 1.8, including Rules: 1.9 Professional This Court finds clear evidence 8.4. *16 Harris, Mary- Edgar has violated the Respondent, Alan Conduct, specifically: of land Rules Professional Henderson, client, Mr. an by charging Rule 1.5 his 1. unreasonable fee. Henderson, client, 1.7 his Mr. by representing impermissible
despite of an conflict the existence interest. business, by impermissible 1.8 into an entering
3. Rule client, Mr. transaction with property financial or Henderson. 1.9 Mr. in the same by representing
4. Rule Henderson substantially matter in which his interests or related materially to the interests of a former were adverse former consultation and consent client without client.9 1.5, 1.7, 1.9. violating Rules
5. Rule 8.4 [Fees] Rule 1.5 Violation of his work alleged Respondent’s fee for “Petitioner i.e., v. Ashley Henderson sexual lawsuit harassment Inc., al, Respondent et was Designs, unreasonable. Layne Designs, Inc. attorney Ashley Layne for countered that the as his suggested Respondent take the entire settlement fee. Layne employed by Ashley while
“Sometime designer, Mr. Designs, Inc. as a window treatment concerning advice sexual sought Respondent’s Henderson place employment. harassment at his Mr. Henderson Inc. Ashley Layne Designs, employment continued his in March of 1998. Mr. Henderson was until sometime Respondent in connec- discharged at that time and retained compensation. He unemployment tion with his claim for him on his claims of represent also retained discharge against his former sexual harassment and abusive employer. against Ash- January filed suit
“On harassment and for ley Layne Designs, Inc. for sexual City, discharge in for Baltimore abusive the Circuit Court April nego- In case number 24-C-99-000254. after parties, agreement tiation an was reached. between general parties signed a confidential settlement settlement, As Mr. part release. Henderson $11,000.00. awarded party’s negotia- that as
“Respondent part testified tions, attor- 3-way he had a conversation included the (hereinafter, Eidelman’), ney Designs ‘Mr. Ashley Lane Henderson, alleged Mr. and himself. dur- *17 supra 9. See footnote conversation, $11,000 Mr.
ing proposed this Eidelman figure as a settlement award. Mr. Respondent
“In a conversation between later Henderson, Respondent explained to Mr. Henderson that he $11,000. pay on the Mr. Henderson would have to taxes pay on money indicated that he did not have the taxes point. ended at this settlement award. conversation had “Respondent then testified that he another conversa- This Mr. initiated tion with Mr. Eidelman. time Eidelman conversation, this Mr. Eidelman During the conversation. $11,000 Respondent that take the entire as his suggested suggested He also that this would allow Mr. fee. paying to avoid on settlement award. Henderson taxes Respondent agreed to this and the conversation ended. that
“Respondent later testified when the settlement Ashley Designs, gave from Lane Inc. he Mr. check arrived $3,000 day, that gift. respon- Henderson as a Later same $1,200 gave payment draperies Mr. Henderson as for dent Respondent Respondent’s that he made for son. testified agreed arrangement that Mr. Henderson made a from objections Respondent’s no until he received letter property would be from the located at wife he evicted Keyworth Avenue. “Respondent explained testified that he to Mr. Henderson Designs responsible in a was Ashley letter Lane However, respondent his in this did not paying fee case. produce any support this letter or other evidence to testimony. Respondent also testified he did tell expect Ashley Mr. what he could to recover until Henderson $11,000 Designs Lane made the offer. him
“Mr. Henderson testified that told $85,000 million expect could to receive from from $1.5 Ashley Designs. poten- Lane He had no discussion about in- Respondent prior tial settlement $11,000. forming Ashley Design’s him of Lane offer of Mr. him Henderson also testified that never told Ashley Designs responsible Lane for his fee. *18 “Mr. acknowledged Respondent Henderson that did dis- $11,000 consequences cuss the tax of the with him but not Respondent until at delivered the check to him his home. that Respondent
He confirmed he told that he could $11,000. pay afford to taxes on the Mr. Henderson then Respondent testified that pay stated that he would the taxes $11,000 $11,000 on put the entire towards the repurchase of Keyworth the house located at 2440 Avenue. $3,000
“Mr. Henderson’s account of how he received the was quite Respondent. different than that of the Mr. Henderson stated that he did draperies Respon- make dent’s son-in-law. Respondent’s He told son-in-law that the $1,100 $1,200. cost would be between After he finished job, Respondent provided Mr. Henderson with a ride ride, During Respondent gave home. Mr. Henderson $3,000 cash. Mr. Henderson did testified he not know $3,000. why Respondent gave him any He did not ask questions though this was even more than the cost of the draperies. testimony,
“Later his Mr. acknowledged Henderson signed agreement he the settlement pre- and release pared by Mr. Eidelman. He complained stated he $11,000 Respondent was much less than what him expect. told he could Mr. Henderson indicated that signed he agreement settlement and the despite complaint release Respon- because he trusted judgment lawyer. dent’s as a
“Mr. Henderson testified that did not he discuss whether pay $11,000 or not he had to on anyone taxes other Respondent. than He stated that didn’t he or know wasn’t $11,000 told that Respondent retaining the entire as his fee. Mr. also Henderson testified that no one else was present when told him could expect $85,000 from recover million. $1.5 “The of Respondent accounts and Mr. Henderson differ aside, substantially. That the uncontroverted fact is that $11,000 accepted the entire settlement award as to be considered factors that are Rule 1.5 lists 8 his fee. of a fee. reasonableness determining the novelty and (1): required, the and labor ‘the time Factor involved, requisite and the skill difficulty questions Respondent testi- properly.’ legal service perform Ashley Lane complaint in the filed the that he fied settlement court. He also filed the with the Designs case Mr. it himself. did not draft although he agreement, agreement release. the settlement drafted Eidelman *19 on a took this case that he also testified Respondent his records of keep did not time basis. He contingency attorneys required are not case because work this contingency cases. keep time records client, likelihood, that (2): if to the apparent Factor ‘the preclude will particular employment of the acceptance the was no testimo- by lawyer.’ There employment other matter at on this presented ny or evidence cases taking from other precluded was Respondent case. Mr. Henderson’s accepted he because (3): locality for customarily charged in the Factor ‘the fee that his Respondent testified services.’ legal similar this Apparently hour. per in 1998 was hourly rate $250 testify specifi- Respondent did general fee. was his harassment amount of his fee sexual cally as to the cases. ob- (4): and the results ‘the amount involved
Factor respect to conflicting testimony with was tained.’ There Respondent testified factor. Mr. Henderson $85,000 from expect could to recover $1.5 told him he testified Ashley Designs. Respondent Lane million from He did not tell Mr. Henderson this. did not tell he until Mr. expect could to recover what he Mr. Henderson $11,000 The amount figure. proposed Eidelman accepted was award that Mr. Henderson the settlement $11,000.00. Respondent amount that This was also the as his fee. retained (5): client or imposed limitations
Factor ‘the time testimony respect no There was the circumstances.’ However, to this factor. the docket entries from the case 20,1999 complaint January reflect that a was on filed a Stipulation of Dismissal was on March filed (6): Factor length professional ‘the nature relationship with the client.’ testified he represented had Mr. Henderson and members of his matters, family, on thirty years. various over also He testified that he considered Mr. Henderson friend family. (7):
Factor experience, reputation, ability ‘the lawyer lawyers performing or the services.’ practice is an attorney licensed law in the State of Maryland represented since 1960. He has fif- between and twenty negligence teen thousand clients in automobile testimony presented cases. No indicating many how sexual harassment claims has handled. (8): Factor contingent.’ ‘whether the fee is fixed or Re- spondent agreed testified that represent Mr. Henderson on sexual claim on harassment a contin- gency negotiate basis. He did not his fee with Mr. Henderson and did not discuss what his fee would be until $11,000 Mr. proposed Eidelman as a settlement of Mr. *20 Henderson’s claim.
“Respondent complaint drafted the in this case. He negotiated with attorney Ashley Designs, Lane Inc. to reach a settlement of Mr. Respon- Henderson’s claim. dent did not draft the agreement settlement and release. He did not indicate Mr. that representing Henderson him on this preclude matter would him representing from other Respondent’s clients. in 1998 per fee was hour. It’s $250 unclear how much Mr. Henderson’s claim potentially was $11,000. worth. The settlement award he received was Respondent $11,000 retained the entire as his Respon- fee. keep dent did not time records of his work in this matter but the docket entries in this case reflect a three-month span filing between complaint filing and Stipulation of Dismissal. Mr. Henderson was not a new client. represented Mr. Henderson and mem- them thirty years for over considered family of his bers law for family. practiced has of his friends were taken years. majority of those cases forty over contingency a basis. on facts, finds clear and this court light
“In of these evidence, in the case of Respondent’s fee Inc. et al Designs, Lane Ashley L. Henderson v. Preston in that Respondent performed The work was unreasonable. proportion to the amount significantly out of matter was work in kept for his If time records his fee. case, contrary could be perhaps argument an aside, made, percent That that is 100 but did not. fee he case, clearly crosses monetary recovery in a of the client’s the line. Generally] Interest Rule 1.7
Violation [Conflicts of alleges Respondent’s representation “Petitioner and the Farm Mutual case Mr. Henderson the State by Re- materially was limited Ashley Designs Lane case Respon- as Mr. landlord. spondent’s interest Henderson’s Mr. representation Henderson countered that dent fact that materially by the he cases was not limited these landlord. was also Mr. Henderson’s 1996, Mr. at 2440 August “In Henderson lived or about City and he resided Keyworth in Baltimore while Avenue there, Respon- property subject to foreclosure. at a foreclosure sale for purchased property dent would allow him to $17,000. Mr. Henderson that he He told it repurchase until could residing the house continue Respondent. from the Mr. agreement no written between
“There was *21 Respondent regarding Mr. Henderson’s re- Henderson and agree- There was also no written purchase property. rent, respect to obligations Mr. ment as to Henderson’s expenses property. or related the taxes other “In in Mr. Henderson was involved an automobile damages. Respondent rep- accident and was sued for case, resented Mr. Henderson in i.e. Farm Mutu- State al v. Preston Henderson. Mr. Henderson a tenant was still living Keyworth of at Respondent proper- the Avenue $11,935 ty. judgment A in approximate the amount of was September on about entered or 1997 in favor State Farm Mutual. 4, 1997, September Respondent against
“On filed suit Mr. in District of Maryland Henderson the Court for Baltimore 11, 1997, City seeking September back rent. a On default judgment against Respondent was entered Mr. Henderson. judgment $7,200.00. was awarded a in amount of On or 15, 1997, September Respondent about a filed Writ Wages Garnishment of wages and Mr. Henderson’s were garnished. later
“Mr. purpose Henderson testified that the of the suit for back by Respondent against rent filed him in the District Court was avoid paying the State Farm Mutual Judg- alleged ment. that Respondent explained He him that if judgment he was garnish awarded for back rent he could wages Mr. Henderson’s ahead State Farm Mutual. Mr. agreed Henderson arrangement testified he to this preferred because he that the mon- receive ey as opposed State Farm Mutual.
“Respondent’s representation of Mr. Henderson Farm materially State Mutual case was Respon- limited dent’s own Respondent clearly interest. has an interest Keyworth the property located at 2440 He was Avenue. purchased property owner this after he it at the foreclo- sure sale. paying testified that was taxes, mortgage, on the property utilities because Mr. pay Henderson refused to him anything. Judgment
“The Farm against the State Mutual case Mr. day Henderson entered the before filed suit for back rent in District There was no Court. presented evidence at indicate that Respon- representation dent ceased Mr. at Henderson time. *22 representation did
“Respondent not believe that Mr. State Farm Mutual case would be Henderson adversely Mr. Henderson was the uninsured de- affected. testimony to that produced suggest There was no fendant. not Respondent competently represent did Mr. Henderson in that case. also his representation did not believe that
“Respondent Ashley Designs would of Mr. in the Lane case Henderson $11,000 adversely Mr. was awarded be affected. Henderson Inc. as his claim. by Ashley Designs, Lane a settlement of counsel arrive at Respondent negotiated opposing $11,000 as his Respondent this retained the entire amount. fee. explain that not Respondent
“Mr. Henderson did testified negative serving as his potential to him the effect simultaneously po- could attorney landlord have. adversely representation affected was tential for the be was greater Respondent under the circumstances because pay a tenant who or other landlord to refused rent any under expenses Clearly, the house. landlord related money want owed these circumstances would that was position in a that he Respondent unique to them. was any access or award as Mr. would have settlement attorney. Henderson’s landlord potential not con- Respondent explain did “Because Henderson, Mr. flict of to Mr. he could not obtain interest Respondent consent to that conflict. testified Henderson’s indepen- could Mr. Henderson that he seek he advised counsel, that he independent dent but not should seek writing. put did not counsel. advice finds “This court clear and evidence Respondent violated Rule 1.7. 1.8 Interest-
Violation [Conflicts Prohibited Transactions] clearly property is transac- purchase a house “The above, Mr. purchased tion. noted As sale. Mr. Henderson at a foreclosure house Henderson’s pending case was Farm Mutual the State testified That means that of his house. foreclosure sale during the in an automo- Mr. Henderson representing purchased during same time that negligence case bile house. Mr. Henderson’s from Mr. purchase the house
“Respondent did *23 fact Henderson, That tends but at the foreclosure sale. 1.8(a) (1) inapplicable of Rule is that subsection indicate transaction, party not a to the was because Mr. Henderson sale. at the foreclosure purchase of the house i.e. the $17,000 Mr. for paid that he “Respondent testified had sale. He later at the foreclosure Henderson’s house at that it was valued assessed and indicated property years $60,000. that two or three Respondent then testified offered to allow Mr. Henderson after June he $80,000. never a for There was repurchase the house expenses respect to rent or other agreement written house, produced several Respondent to the but related requested that during [] [Mr. that letters for These letters pay per month rent. Henderson] $600 property Respondent paying also indicated that support Respon- utility bills. These facts tend taxes equitable. fair and that the transaction was dent’s claim in the representing Mr. Henderson “Respondent was also filed a suit for day Farm Mutual case the before he State Mr. in the District Court against back rent Henderson no evidence at the City. Respondent presented Baltimore representation of Mr. hearing to show that he ceased filing Farm Mutual case before Henderson the State judgment That suit in a favor suit for back rent. resulted Respondent judgment, To collect on that Respondent. wages. Mr. garnished Henderson’s Henderson, Petitioner, alleged that well as Mr. “The as might been for the sole the District Court suit have collecting back Mr. Henderson testified purpose rent. against him purpose that of the suit for back rent filed by Respondent paying District Court was to avoid Judgment. alleged Respondent
State Farm Mutual He that explained (Respondent) to him that if he was awarded a judgment garnish for back could Mr. rent he Henderson’s wages Farm Mutual. Mr. ahead State Henderson testi- agreed arrangement pre- that to this fied he because he Respondent money opposed ferred that the receive the as Farm State Mutual. (2) 1.8(a), regards Respon-
“With subsection presented no advised Mr. dent written evidence he ever independent Henderson to seek counsel. testi- fied that he advised Mr. could Henderson he seek counsel, independent but not that should do so. Mr. suggested Henderson denied that ever that he independent seek the advice of counsel. finds, evidence,
“This court clear and 1.8(a). Respondent violated Rule alleged “... Petitioner violated this rule 1.8(j) purchased when he Mr. Henderson’s house at [Rule ] him in a representing the foreclosure sale while also bank- ruptcy case.
“Respondent purpose bankruptcy testified that the action was to of Mr. forestall the foreclosure Henderson’s testimony, coupled house. That with the foreclosure sale itself, that Mr. indicates Henderson’s house was connected bankruptcy proceedings. with the finds, evidence, “This court clear and that Respondent 1.8(j). violated Rule 84(a), 84(c) 84(d) Violation Rules [Misconduct] Henderson, regards “... court finds With Preston 1.5,1.7 result, violated Rules and 1.8. As a this court also finds that violated Rule 8.4(a). Although presented
“... Respon- Petitioner evidence that may dent suit for purpose have filed back rent for the sole garnishing wages Mr. Henderson’s ahead of Farm State
539 Mutual, result, As a allegation could be sustained. 8.4(c). this court finds no violation of Rule [Respondent] requesting per “... sent a letter month $600 in rent three months before he the suit. Mr. filed pay any during did not to Respondent Henderson rent those legitimate three months. therefore has a rea- filing son for the suit for back rent. This finds court no 8.4(d).” violation of Rule [Alterations added.]
II.
Standard
Review
It is
original
well established
Court has
“[t]his
jurisdiction
attorney disciplinary proceedings.”
Attorney
over
Dunietz,
419, 427,
Grievance Comm’n v.
706,
368 Md.
795 A.2d
(2002) (citing
Attorney
Snyder,
Grievance Comm’n v.
710-711
242, 253,
515,
(2002));
Attorney Griev
368 Md.
793 A.2d
521
Harris,
ance
v.
376, 388,
516,
Comm’n
Md.
366
784
523
A-2d
Gavin,
(2001);
Attorney Grievance Comm’n v.
176,
350 Md.
189,
193,
(1998);
Attorney Grievance Comm’n v.
711 A.2d
200
Adams,
93,
86,
1080,
(1998);
Attorney
349 Md.
706 A.2d
1083
Glenn,
Grievance Comm’n v.
448, 470,
463,
341 Md.
A.2d
671
Kent,
(1996);
Attorney Grievance Comm’n v.
361,
473
337 Md.
371,
(1995);
Attorney Grievance Comm’n v.
653 A.2d
914
Powell,
276, 287,
(1992).
See also
328 Md.
614 A.2d
16-709(b) (stating
Md.
“[c]harges against
an attor
ney shall
[Attorney
be filed on behalf of the
Grievance]
Furthermore,
Appeals”).
Commission in the
Court
“[a]s
original
complete jurisdiction
the Court of
for attorney
disciplinary proceedings Maryland,
indepen
we conduct an
the record.” Attorney Grievance Comm’n v.
dent review
Garfield, 369 Md.
85, 97,
(2002)
797 A.2d
(quoting
Snyder,
Md. at
In our
hearing
review of the
judge’s
“[t]he
findings of fact will
accepted
be
unless we
that they
determine
Garfield,
clearly
97,
are
erroneous.”
omitted)).
Dunietz,
A.2d at
Md. at
795
also
368
See
(“The
findings
prima
of fact ‘are
hearing judge’s
711
faci[e]
”)
clearly
unless
erroneous.’
will not be disturbed
correct and
Zdravkovich, 362 Md.
v.
Attorney Grievance Comm’n
(quoting
(2000));
950,
21,
Attorney Grievance
1,
762 A.2d
960-61
(2002)
373,
92,100
388,
Md.
794 A.2d
Monfried,
v.
368
Comm’n
if
(“Factual
judge will not be disturbed
findings
hearing
of the
evidence.”). We
convincing
and
based on clear
they are
and
evi-
definition
clear
recently reiterated the
389,
Harris,
(quoting
III. Discussion exceptions filed four to Judge Holland’s Find- ings of Fact and Conclusions Law. Respondent’s first three evidentiary exceptions Judge relate to Holland’s allegedly improper findings regarding background her findings and the allegedly incomplete findings she made in respect to certain facts regarding both the Lewis and Henderson matters. In respondent’s fourth exception, excepts Judge Holland’s conclusions 1.1, that 1.3, 1.4, he violated MRPC 3.2 and 8.4 with respect to the Lewis 1.5,1.7, 1.8,1.910 matter and MRPC respect 8.4 with matter, to the Henderson claiming the hearing judge’s conclusions were not based on clear and find evidence. We exceptions these to be without merit and overrule hand, them. On the other petitioner excepts Judge Holland’s conclusion that respondent did not 8.4(d) violate MRPC in both the Lewis and Henderson mat- ters. petitioner’s We sustain exceptions. We address the exceptions below. Respondent’s
A. Exceptions Findings of Fact and Respondent’s Conclusions of Law Exception asserts that Holland erred in find ing, as part of her recitation of “Background Facts,” that supra 10. See footnote 6. MRPC was sanctioned for violation various
respondent disciplinary most provisions hearing in his before recent presided Respon- has as judge. court she where finding properly part is not alleges dent finding may her fact hearing judge’s function and have biased *27 law. and conclusions by noting his prejudiced Judge Holland violations
disciplinary past when she considered the MRPC his particularly by noting alleged judice, in this case sub her findings of her and beginning paragraphs in the past discipline complete and in- Judge very Holland issued conclusions. and, supported conclu- findings part, fully for the most depth sions, extensively in opinion. have this which we reiterated “made that the sanctioning purposes, For this Court has clear history, attorney’s grievance including whether there prior nature of miscon- prior disciplinary proceedings, were in well facts imposed, duct and sanction as as involved mitigation, be into account.” Attorney are to taken Grievance (2001). Jeter, 365 778 A.2d 396 Comm’n v. Md. Franz, 752, 736 v. 355 Md. Attorney See Grievance Comm’n Phoebus, (1999); v. 276 A.2d 339 State Bar Ass’n Maryland (1975). of, 556 nor has Md. 347 A.2d We are not aware attention, brought any to case law respondent prohibiting our noting attorney’s past disciplinary an hearing judge from history. likely such be made It is that information would an hearing judge regarding, known to the Bar Counsel attorney respon- been such as repeatedly disciplined, who has exception. this dent here. We overrule Respondent’s Exception Judge finding to that he Respondent excepts Holland’s [family] no did not “communicate to the that he was Lewis[ ] represent not clear longer willing to them” because there was support to this fact. Holland Judge evidence [during “[r]espondent alleged telephone that found that respondent he was conversation where Michael Lewis told unhappy way being case was Michael conducted] his discharged September him in of 1995 ... that [and] Lewis alleged Lewis to him.” Michael threatened sue suggested that that at time Michael hire another Nonetheless, ap- attorney. “[Respondent never withdrew his pearance nor [family] ] did he communicate the Lewis [ (alterations no longer willing he was them.” represent added). notes, reveals, emphasis and the record that Ms. Lewis testified that Michael Lewis told her in 1995 respondent longer had told him that he no would be lawyer, arguably corroborating respondent’s testimony and this supporting exception.
Nevertheless, evidentiary conflict insofar as the stage is concerned was for Holland resolve findings order for her to render conclusions the first “ It is hearing judge ‘may instance. well settled that a elect pick and ... rely upon’ choose which evidence ... assess credibility of [and the witnesses ... that his finding regard are appropriate Attorney to] entitled deference.” 342, 356, Grievance Comm’n v. Goldsborough, 330 Md. *28 503, (1993) (citations omitted) (alteration added). A.2d 509 respondent While claims that he did to the communicate that no longer willing them, Lewises he was to represent we hold that there clear was evidence to support Judge findings Holland’s and conclusions. Regarding the matter, Lewis Judge “[Respondent Holland stated that never his appearance” withdrew of the Lewises and the record that signed reveals Ms. agreement, Lewis the retainer which also made Ms. his judge Lewis client. The hearing impliedly respondent found to be on credible this matter. She found and concluded that even though respondent may have told Lewis longer Michael that he could no represent him and him advised to retain attorney, attempt another his to sever his representation of the by Lewises was undermined the fact respondent that no agreement had retainer with Michael by Lewis and his failure to or attempt withdraw to withdraw appearance respect Lewis, his to party Ms. who was a to agreement. the retainer We note that no respondent took affirmative steps, other than alleged phone this conversation Lewis, with Michael representation to his terminate and it was 544 sufficiently find to Holland to that he failed
proper longer willing that was no to communicate to the Lewises he exception. this We overrule represent them. Respondent’s Exception 3 stated excepts findings to the generally client, Henderson, in Mr. both the hearing judge regarding Ashley Layne Designs, Inc. matters. Farm Mutual and State exception in this Essentially, respondent submits findings ‘significantly incomplete are because hearing judge’s as matters of record herein which are they findings omit necessary fairly the facts relevant to the activities state Mr. heading [regarding Henderson].” Re- identified claims, previous exception, in his there spondent as did on the testimony hearing judge before the conflicting Henderson, with Mr. associated with his involvement facts findings those unusable as clear and convinc- which “render[s] disciplinary against action and hence as bases for ing evidence accepted by not be they] ... should respondent [and completion.” findings other their Court absent all essential review, discussing our standard of explained supra As we findings hearing judge factual a this Court reviews the determining In standard. whether clearly erroneous under standard, concept meet that we reiterate findings here ‘may pick and choose which evidence judge that “the elect ” 99, at A.2d 765 upon.’ Garfield, 369 Md. 797 at rely Hines, 277, v. Comm’n Md. (citing Attorney Grievance 656, (2001)) Grievance (quoting Attorney 783 A.2d Sheridan, 741 A.2d v. 357 Md. Comm’n (1999)). record and hold that there was We have reviewed the *29 findings of fact. convincing supporting her and evidence clear exception. overrule this We
Respondent’s Exception to exception relating fourth respondent’s now turn We 1.1, of law that he violated MRPC Judge Holland’s conclusions 1.4, respect matter and 1.3, 3.2 and 8.4 with Lewis 1.5, 1.7, respect 1.8 to the Henderson and 8.4 MRPC and conclusions argues findings these matter. convincing and evidence. Once supported by clear are record, Judge hold more, of we that upon our review the based law, they of as relate findings of fact and Holland’s conclusions convincing violations, by and supported clear to those are evidence. Matter
i. The Lewis 1.1, respect to MRPC Judge Holland’s conclusions with 8.4(a) 1.3,1.4(a) (b), are, in his respondent *30 546 Clearly, violations can
Lewis matter.
other MRPC
evidence
attorney certainly
as an
Competence
this failure.
entails
in
competence
preparation
thoroughness
handling
a
hearing judge
client’s case.
claims that “[t]he
in
attempts
Nothing
to treat Rule 1.1 as a ‘catch all’ rule....
any
interpretation
or
construction or
the text of Rule 1.1
respondent’s
any
the rule that has come to
attention indicates
intention that it be used
that manner.”
provides
“competent handling
The comment of Rule 1.1
particular
adequate preparation.
of a
... also includes
matter
required
preparation
part
determined
attention
are
by what is at stake.”
In this case the record reflects
dates,
respondent
only
missed scheduled trial
but he did
to
they
not inform the Lewises when
did or did not have
appear in court and also failed to serve all the defendants
“ducking
respondent
whom
admitted were
service.” Michael
negligence
at
no
Lewis’ automobile
case was
stake and there is
question
respondent
should
have better
informed
appearances. Serving
clients of the court
both the taxicab
to
company
step
driver and cab
owners was a fundamental
getting
proper parties
potentially
to
recover
involved
damages
for Michael Lewis’ claim.
should have
respondent
made
efforts to serve them.
In this case
better
perform competently;
duly prepared
did not
he was not
or
Further,
a
1.1 violation of
thorough.
supports
case law
incompetence
general ill-preparedness
and lack of thor-
359 Md.
Rule 1.3 “lawyer states that a diligence shall act with promptness repre reasonable law, senting a client.” In her conclusions of Holland *31 respondent’s diligence notes some instances that show and agrees respondent in diligently ways, he acted those i.e., respondent’s notification to Ms. regarding Lewis when the originally trial was explained scheduled and how he once in a potentially letter that the trial could be In his rescheduled. exceptions, respondent supports diligence his by highlighting type of hearing judge evidence before the indicative i.e., diligence, showing the docket entries rescheduling several changes, his two motions to judgment vacate the after the case was transcript dismissed and how the reflects that the judge knew he had personal severe familial and problems that may have contributed to his non-appearances in the Lewis However, matter. respondent the issue of a prompt whether is diligent and focuses intensely alleged more on the factors or when instances he or she was not prompt diligent. Re spondent ignore seems to following paragraphs Judge conclusions, Holland’s where she went on to detail many instances that did display respondent’s diligence lack of led her conclusion that he violated 1.3. Rule The instances respondent where diligent, any, was if do not excuse his three non-appearances for scheduled trial dates and his failure to notify the about they Lewises these dates and if or were were not to appear court on those dates. though respon Even attempted dent had to serve the cab driver and the cab company service,” owner who “ducking were there was an issue regarding attempts his at process. Respon service dent filed the Lewises’ case 1992 and succeeded in serving the cab only was, therefore, driver as of 1995. There period a years of three respondent where attempted never to serve the defendants means other by private process than a server. Ultimately, the Lewises’ directly case dismissed because respondent’s action, lack of which resulted the failure to prosecute fact, In case. when a there was chance to cure the dismissal via a Motion to Dismissal, Vacate the Order sign the respondent Motion was denied failed to because
Motion.
Respondent’s meager
in the Lewis matter achieved
actions
nothing.
Holland’s conclusion that
violated
respondent
clearly
Attorney
1.3 was not
See
Grievance
erroneous.
(2000)
Fezell,
(repeated
v.
361 Md.
760 A.2d
Comm’n
diligence);
failure to
defendant
lack of
serve
demonstrated
Ficker,
(being
absent
altogether
Md.
Respondent’s violations pertain keep Ms. attorney diligence, to his failure to cover ie., case, reasonably informed of status of Lewis her failure, occasions, on Ms. Lewis of a two inform rescheduled date, explain as his and the trial as well failure the matter *32 reasonably orders of dismissal to the extent effects necessary make regarding for her to informed decisions 1.4(a), respondent to in his representation. As Rule states refers, at exceptions Judge length, Holland to the some actually regarding factual conflicts communication that respondent accept and Ms. place took between Lewis. We Judge findings as to this evidence and her conclu Holland’s find a convincing sions that was clear and to there evidence 1.4(a), despite to respondent violation of the extent which Rule case. alleged regarding he communicated with Ms. Lewis her exception. this We overrule
Respondent excepts hearing judge’s finding to that he 1.4(b). valid for this support violated Rule He offers no exception stating answered calls except Ms. Lewis’ Judge inquires and and told her case was As closed. noted, respondent initially inform what Holland did Ms. Lewis consequences would be if he could not the defen- serve dants, respondent gave explanation regarding but little more to is clear. did the case the Lewises. The record directly inform their was be- them case dismissed prosecution, cause of his lack of nor did he tell them of the two denied, or that instance they Motions Vacate were one simply sign Ultimately, because he failed to the Motion. there no presented by respondent explained evidence that he the effects of these orders on the case. We overrule Lewises’ exception. that, Judge by excepts finding Holland’s of violating just basing virtue the rules discussed and her he, very respondent, conclusion on the same misconduct of 8.4(a). necessity, plain language violated Rule Rule 8.4(a) provides professional that it is misconduct violate Therefore, provision of professional the MRPC. the same misconduct can various overlap implicate provi violation of fact, In a cursory glance many sions the MRPC. at the attorney grievance clearly an opinions shows that where attor MRPC, ney attorney has violated one rule of the has many, often violated based on the combined whole attorney’s Having already Judge misconduct. Hol sustained 1.1, 1.3, respondent land’s conclusions that violated MRPC 1.4(a) (b), 3.2, and Judge we conclude that Holland was presented with clear evidence from which 8.4(a). that respondent determine violated Rule See Attorney Johnson, 598, 631, Grievance Comm’n v. 363 Md. A.2d 130, 150 (2001).
ii. The Henderson Matters 1.5, pertinent part, “lawyer’s that a states fee shall be eight reasonable” and lists factors to be considered determining the reasonableness of a fee. Holland eight discussed each of factors the relevant facts and *33 respondent concluded that violated this rule. The settlement agreement by respondent effectuated in this clearly matter Ashley Layne $11,000.00 states that Designs, pay Inc. shall to attorney “Henderson and his ... payment attorneys’ as for Judge fees incurred in this ultimately matter.” Holland con fee, that despite varying testimony cluded the regarding the its why respondent amount and and how up ended with the Henderson, any “gift” amount he did minus amount to Mr. nevertheless, $11,000 respondent, accepted the entire settle- “attorney For the same reasons award as his fee.” ment to considered listed, eight of the factors be supra, after each i.e., fee, factors reflect- of a regarding the reasonableness done, work respect in to the ing nature of the fee relationship with the experience, reputation, respondent’s like, conclusion that Judge affirm Holland’s and the we client $11,000 of for the this rule. An amount respondent violated Layne Ashley in the by respondent done amount work “significant- hearing judge concluded Designs’ case was as the .... a that is amount of his fee fee ly proportion out of case, clearly recovery in a monetary a client’s percent line.” crosses the respondent violated hearing judge concluded that interest, 1.7, and Rule pertaining general conflicts regarding prohibited
1.8, to conflicts of interest pertaining in transactions, of Mr. Henderson representation in his Mutual and Farm matter bankruptcy proceedings, the State Judge Holland had clear Ashley Layne Designs’ matter. respondent find violated these convincing evidence to to her respondent’s exception two rules and we overrule being unique position conclusions. landlord, thereby creating a' attorney Mr. Henderson’s in his represented Mr. Henderson conflict when he potential inferred, any Holland claim. As sexual harassment landlord, that his landlord, attorney knowing especially an just granted had been paying who had not been rent tenant tenant, settlement, money due would want from the large represented also from the settlement. the tenant claim, put which in the Farm Mutual Mr. Henderson State for a unique position knowing potentiality him in the fact, case, which, Mr. Henderson judgment against then able respondent because he was occurred benefitted Farm wages ahead of State garnish Mr. Henderson’s Further, respon support there is evidence to Mutual. conflict or potential did not tell Mr. Henderson dent him in represent Mr. Henderson’s consent attempt gain *34 light potential respondent’s for conflict.11 We overrule exception to his violation Rule 1.7. 1.8(a) generally prohibited states that it is a business,
lawyer to a property enter into financial or transac tion with a Subsections one Rule 1.8 client. and two of are conjunctive lawyer and that a enter into nature state cannot (1) a prohibited transaction “unless: is fair and transaction client; (2) equitable to the client is advised seek the of independent given advice counsel in the transaction and is a (some added). opportunity emphasis reasonable to do so.” simple, The facts respondent representing are Mr. negligence Henderson in against the automobile case State during Farm Mutual purchased the same time that he Mr. hearing Henderson’s judge house. The found that because respondent sale, purchased the at a house foreclosure subsec (1) tion of this rule was not violated because Mr. Henderson However, was not that party a transaction. was clear there (2) that evidence subsection of this rule was denied, violated. Mr. Henderson at the that hearing, respon suggested dent ever independent seek the advice of counsel judge and the hearing rejected respondent’s claims to the 1.8(a). contrary. respondent’s We affirm violation of Rule no respondent’s There is merit to exception Judge Holland’s of a violation finding 1.8(j), of Rule which states that lawyer “[a] shall not acquire proprietary a interest cause of subject litigation lawyer action or matter is conducting for a client.” judge concluded that respondent acquired interest in proprietary Mr. Henderson’s i.e., action, cause of bankruptcy his proceedings, upon his home, purchase Mr. Henderson’s even via a foreclosure sale independent of Mr. Henderson. There is a link between the Keyworth property Avenue and Mr. Henderson’s claims matter, subject home, and the could involved in be litigation of his claims. itself, relationship It is of landlord and tenant is improper; may happen it may improper is what thereafter be require lawyer representation. to terminate his excepts finding Holland’s
Respondent, again,
*35
1.5,
1.8
of his violations of Rules
1.7 and
in the
virtue
by necessity
matters that
also
violated Rule
Henderson
8.4(a).
reasoning
supra
the
we
and
opined
We reiterate
this
viola-
hearing judge’s
regarding
affirm the
conclusion
rule
exception.
tion. We overrule
Exceptions
Findings
B.
to
Petitioner’s
of Fact and Conclusions
of Law
to
petitioner
Holland concluded
failed
its
provide
support
allegation
clear and
evidence
8.4(d)
respondent
and that
did
respondent
violated MRPC
prejudicial
in
administration of
engage
conduct
the
Harris,
justice. Citing
and
Grievance v.
Mooney
Attorney
(1998)
Alison,
623,
in its exceptions,
349 Md.
An
failure
client
83,
8.4(d).
753
Mooney,
See
359 Md. at
A.2d at
violate Rule
31; Brown, 353
at
725 A.2d at
We
Md.
held
505-06,
Ficker,
313-15,
A.2d at
an
“[A]n
must,
presence
justice
his
process that without
the wheels of
necessarily, grind
attorney’s
to a
from
halt. The
absence
immediately cognizable by
judge
courtroom is
dignity of
court.”
upon
operation
intrudes
Ficker,
[Citation omitted.]
IV. Conclusion
only
appropriate
issue that remains is the
facts
of this
apply
sanction
under the
and circumstances
having
respondent
case
now determined that
violated MRPC
*36
1.4(a)
1.8(a)
8.4(a)
(d).
1.1, 1.3,
(b), 1.5, 1.7,
3.2,
(j)>
and
and
explained
disciplinary proceed
purpose
We have
that “the
ings
protect
public
punish
erring
is to
rather than to
the
Wallace,
attorney.”
v.
368 Md.
Attorney Grievance Comm’n
277, 289,
535,
793
542 (2002)(quoting Attorney
A.2d
Grievance
Franz,
752, 760-61,
339,
Comm’n v.
355 Md.
736 A.2d
343
(1999)).
by sanctioning
attorneys
“Thus
errant
we seek
‘promote reliability
veracity
legal profession
in the
and to
attorneys
committing
from
deter other
violations of the
”
404,
Attorney
MRPC.’
Comm’n v.
369 Md.
Angst,
Grievance
416,
747,
(2002) (quoting Snyder,
800 A.2d
754-55
Recently Garfield, in the case of Court neglect of client attorney guilty who was found suspended an the facts coupled with other MRPC violations. While when judice,13 case sub we stated unlike the facts of the are Garfield involv- attorney grievance cases in that case that recent “[i]n of different imposed have a number ing neglect, client we sanctions, suspen- ... to indefinite ranging from disbarment specified period of time.” right reapply sion with the after aggravating circumstances as follows: 12. The ABA defines any Aggravation aggravating are or circumstances "9.21 Definition. considerations, may degree justify an increase in the or factors that imposed. discipline to be *37 may aggravation. considered in "9.22 Factors which be Aggravating factors include: offenses; (a) prior disciplinary motive; (b) or selfish dishonest misconduct; (c) pattern a offenses; (d) multiple (i) practice experience in the of law....” substantial There, disciplinary proceedings attorney had an the involved an who addiction, drug escalating which caused his MRPC violations and the treatment, addiction, sought attorney showed re- was aware of his morse, cooperative a attitude with Bar Counsel and indicat- maintained neglect. attorney consequences of This ed a desire to remediate the his (30) given right reapply thirty days. in was the to
555 103-04, (citations 369 at 797 at Garfield, Md. A.2d 767-68 omitted). on in We went to state: Garfield application varying
“The sanctions in involving cases neglect explained by client can be appraisal Court’s mitigating aggravating factors in the individual if Generally, cases. there a of mitigating are number factors, present, factors or an of aggravating absence we are apt to find a less severe sanction will our serve stated purpose of protecting public.... In involving cases presence highly factors, aggravating for instance where avoids, attorney an ignores, or cooperate does not with Bar funds, or misappropriates Counsel client we are in- more clined to a impose more sever sanction than in those cases which,
in
example,
tor
attorney
cooperative
with
throughout
Bar
attorney grievance
Counsel
process or
104-05,
did not misappropriate funds.” Id. at
This Court has held that
suspension
indefinite
of attorneys
for conduct similar to
respondent here,
the conduct of
i.e.
where there is
clear and
evidence on the record of
neglect
client
coupled
violations,
with other
appro-
MRPC
is
priate.
Attorney
Shaw,
See
Grievance Comm’n v.
363 Md.
(2001)
556
a
making
juvenile
a
client’s
records and
false statement
Zdravkovich,
(indefi-
(2000)
mother);
1,
A.2d
362
762
950
Md.
attorney who
MRPC
suspension warranted for
violated
nite
competence
diligence,
to act
and
requiring attorneys
with
clients,
and
charge them reasonable fees
communicate with
Attorney
and
justice);'
of
with the administration
interfere
(1999)
475, 727
Brugh,
v.
Grievance Comm’n
353 Md.
A.2d 913
(holding
suspension
right
reapply
an indefinite
with the
and
days
attorney neglecting
an
in 60
was warranted for
clients).
failing to
with three
communicate
factors,
that re-
Regarding aggravating
the record reveals
or
spondent
past disciplinary proceedings
has had four
five
respondent’s
has had
failure to
where
to address
this Court
clients,14
his
multiple
advance
and
violations
the interest
involved
in the Lewis and Henderson matters
MRPC
judice,
sub
substantial
proceedings
experience
as well
Respondent’s misconduct in this matter is
practice
of law.
past,
experi-
his
aggravated
disciplinary
legal
and we note
his
ence,
and
complaints
of his current
severity
volume
legal
unfavorably
upon
how
his combined actions reflect
However,
favor,
we
note that
profession.
Respondent’s
also
motive,
that he
with a
there is no indication
acted
dishonest
Fact,
Findings
respondent
states in
14. As
Holland
her
previously
previously
for violations of the MRPC and had
sanctioned
1,
January
on
appeared
that court
2001 for a different
before
Disciplinary
by
Attorney
a
Action filed
Grievance
on
Petition for
Attorney
styled as
Grievance
This most recent case is
Commission.
Harris,
376,
Maryland
Edgar
v.
366
784 A.2d
Alan
Md.
Commission of
6,
6,
Harris,
520,
(2001).
784
n.
In
366 Md. at
n.
A.2d at
516
noted,
disciplinary
they
petitioner’s past
were
include:
sanctions
"(1)
relating
a
on 10
reprimand
consent of this Court
June 1999
Respondent's
concerning Respondent’s
1.3 and 1.4
violation MRPC
client
the statute of
failure
file suit on behalf of his
within
limitations;
(2)
reprimand
April
'ne
Respondent’s
a
9
1996 for
on
glect
legal
substantively
matter and his failure to
commu
a client’s
Harris,
Attorney
Misc.
nicate’
the client.
Grievance Comm’n v.
BV),
Term,
(3)
(Subtitle
September
(unreported);
a
Docket
suspension
July
disciplinary
on 30
1987 for various
viola
six month
tions, including 'neglect
legal
repre
matter'
[
][of]
'fail[ure]
Attorney
zealously.’
sent
client
Grievance
v. Harris
Comm'n
denied,
(1987),
[respondent],
Md.
We hold that appropriate sanction respondent is an suspension. indefinite suspension indefinite shall com- thirty days mence filing from the date of opinion. of this ORDERED; IT IS SO RESPONDENT SHALL PAY ALL THE COSTS AS TAXED BY THE CLERK OF THIS COURT, TRANSCRIPTS, INCLUDING COSTS ALL OF 16-715(c), PURSUANT MARYLAND TO RULE FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST ALAN EDGAR HARRIS.
Dissenting Opinion by HARRELL, J., in which RAKER BATTAGLIA, JJ., and join.
I respectfully Although dissent. I fully agree with the Majority’s analysis disposition parties’ exceptions, (Maj. 514-553), op. I conclude that Mr. Harris should be disbarred, as Attorney recommended Grievance Com- mission. case,
Prior to present Respondent’s disciplinary record as an attorney following: revealed the
(1) a suspension six-month on 6 2001 for November conduct relating leading two clients Maryland violations of (MRPC) Rules of Professional Conduct (competence), 1.1 1.3 1.4(a) (communication (diligence in representation), clients), 1.16(a)(2) (terminating representation), (expedit- 3.2 (misconduct ing 8.4(d) litigation), prejudicial to 558 Comm’n justice). Attorney See Grievance
administration (2001); Harris, A.2d 516 366 Md. v.
(2) on 10 June by consent of Court reprimand a 1.3 and 1.4 violation of MRPC relating Respondent’s of his to file suit on behalf failure concerning Respondent’s limitations; statute of within the client (3) “neglect Respondent’s 1996 for reprimand April on 9 substantively and his failure legal matter of a client’s Comm’n Attorney client. Grievance communicate” with the (Subtitle Term, BV), Harris, September Misc. Docket v. (unreported); various (4) July 1987 for suspension month on 30 a six *40 ][of| violations, legal a mat including “neglect [ disciplinary zealously.” Attor represent his client and “failfure] ter” Harris, 197, Md. 528 A.2d v. 310 Grievance Comm’n ney denied, 1020, 98 (1987), 108 cert. 484 U.S. S.Ct. 895 (1988). L.Ed.2d 985 grievance matters through the above four
Echoing relating sins recurring professional proceeding are instant by this record that persuaded I am competence diligence. i.e., it,” Maryland Rules “get not Mr. Harris does Professional Conduct. away “to do with” imagines Petitioner desires lawyer” for his clients “aggressive has been an
him because he Bar, “may persona which have rubbed years 42 at the over his implies that we should -wrongway.”1,2Harris people some in that he has fashioning a sanction this matter in consider in light conduct” “very low incidence of sanctionable had a “20,000 by him dur- negligence cases” handled the estimated surmise, however, from the absence may ing his career.3 One Exceptions And Recommen- Respondent’s Response "Petitioner’s 1. To (cid:127) Sanctions,” pages 4-5. dation For suggest apparatus is who within the Commission’s 2. fails to Valjean. Inspector Javert to his Jean Exceptions Recommen- Respondent’s Response "Petitioner’s And To Sanctions,” page n. 1. dation For
559 of a in paper filings recommendation sanction with the Court, no sanction flow from believes should found the misconduct occurred in this have matter. arguments notwithstanding,
Harris’ we typically consider a arriving appropriate non-exclusive list factors in at the sanction in such cases: prior record; disciplinary
[A]bsence of of a dis- absence motive; or personal problems; honest selfish or emotional timely good faith efforts to rectify to make restitution or misconduct; consequences of full and free disclosure or disciplinary cooperative proceed- board attitude toward ings; law; inexperience practice character or reputation; physical disability impairment; or mental or delay disciplinary proceedings; rehabilitation; interim sanctions; remorse; imposition penalties of other or finally, prior remoteness of offenses.
Harris, 366 at 784 at (quoting Md. A.2d 533 Attorney Jaseb, 464, 481-82, Grievance v. Md. Comm’n A.2d (other (2001) omitted)). citations Harris does analysis fare well in present an criteria in the case. these Although record, many inapplicable factors are on this most of remaining Respondent. relevant ones work against prior He has a substantial disciplinary Respondent, record.4 case, unlike his 2001 offers here no mitigating consider- ations his personal circumstances, based on nor did hear- *41 ing judge any find that Although Respondent existed.5 seeks many years to turn his case, at to the Bar his benefit in this against such fact also cuts him in that refuge he cannot find in urging that misconduct by inexperience. his was occasioned To contrary, clearly the he should have known better. Re- points periods 4. Petitioner out overlap that there is of some the time of (misconduct 1997-98) the in the 2001 misconduct action in occurred (misconduct present 1997-99). and the case in occurred 1992-95 and Harris, found, judge In Md. 366 at 784 at A.2d the 5. facts, during as preoccupied May that Harris was June of 1998 with the found, This, death of his judge mother and mother-in-law. related neglect to professional responsibilities Harris' of his at that time. As noted, supra, findings no similar present were in made case. concepts to do not seem be embraced
morse or rehabilitation permits only his notions by attitude Respondent because that, has get is him and because he that someone out has, of as bouts misconduct many as cases handled “very as the low incidence” inferen- should be tolerated I, one, tially practice. in a cannot will occur such volume values. subscribe those protection public no in of the interest do service
We
tenderly lawyers
urge acceptance
who
of
treating
our State
compe-
areas
amount of chronic misconduct
of
certain
type
of cases
diligence by
virtue of the volume
tence
they
is to demonstrate
the mem-
accept.
proper
Our
role
which
legal profession
type
bers
of conduct
will
of
nature
of
law
regardless
be
or size
one’s
tolerated
(citations
Harris,
at
practice.
366 Md.
ATTORNEY COMMISSION v.
Robert M. SPERY. Term, 8, Sept. No.
Misc. AG 2002. Appeals Maryland. Court
Nov. as notes and 3.2 and on misconduct exceptions, upon professional based the same excep part respondent. respondent’s of We shall address generally to tions to of these rule violations and refer each which, presented by along with evidence respondent’s actions Counsel, convincing Judge provided Bar clear and evidence Holland to conclude as she did. skill, knowledge, thoroughness requires legal 1.1 “the Rule representation.” preparation reasonably necessary for the and competent- Judge respondent Holland concluded failed fact ly represent family. Respondent excepts to the Lewis Judge Holland concluded that this rule was violated 1.3 and respondent she found that also violated Rules because 3.2, litigation. pertain diligence expedition which and not a “catch-all” rule and Respondent asserts that Rule 1.1 is implicate do not a violation mere violations other MRPC disagree. Judge emphasized 1.1. Holland her Rule We by failing to “[respondent conclusions that violated Rule 1.3 changes ... Rule family [and] advise the Lewis trial date by failing [Lewis 3.2 to serve all of the defendants in the significant preparation ... lack of ][ing] matter] show[ Therefore, by thoroughness. we find clear no violated Rule 1.1.” There is evidence legal knowledge and dispute respondent possesses 1.1, representation as provide competent skill under long practice history involving thousands evidenced cases; he, nonetheless, can still to violate Rule 1.1 due be held to, emphasized, thoroughness as Holland lack of case, respect particular to a in this instance the preparation