Attorney Grievance v. ProctorAttorney Grievance v. Proctor
Court of Appeals disbarred lawyer who made intentional misrepresentations to multiple clients, failed to adequately communicate with a client, represented a client while she was not permitted to practice law, overcharged clients for fees and expenses, and also made misrepresentations to the court and Bar Counsel. Such conduct violated Maryland Attorneys’ Rules of Professional Conduct
v.
DEIDRA NICOLE PROCTOR
*Getty, C.J., Watts Hotten Booth Biran Gould McDonald, Robert N. (Senior Judge, Specially Assigned) JJ.
Opinion by Gould, J.
Filed: July 25, 2022
*Getty, C.J., now a Senior Judge, participated in the hearing and conference of this case while an active member of this Court. After being recalled pursuant to
The hearing was held on September 20, 2021. Bar Counsel presented its case with no witnesses and 58 exhibits, including the requests for admissions that were deemed admitted. Ms. Proctor appeared pro se. In lieu of closing arguments, the hearing judge asked the parties to submit post-hearing proposed findings of fact and conclusions of law. Only Bar Counsel chose to do so.
On November 4, 2021, the hearing judge issued Findings of Fact and Conclusions of Law (the “findings“), finding by clear and convincing evidence that Ms. Proctor violated MARPC 1.1 (Competence), 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Attorney), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.5(a) (Fees), 1.16(d) (Declining or Terminating Representation), 3.3 (Candor Towards the
Pursuant to
BACKGROUND
A. Procedural Context.
On November 11, 2020, Ms. Proctor was personally served with the Petition, interrogatories, a request for production of dоcuments, and a request for admission of fact and genuineness of documents. Pursuant to
On March 23, 2021, Bar Counsel withdrew its motion for default and re-served its discovery requests on Ms. Proctor by email and regular mail, along with a notice of service.
Ms. Proctor failed to comply with the discovery order, prompting Bar Counsel to again move for sanctions, pursuant to
B. Factual Findings.
Ms. Proctor has been a member of the Maryland Bar since December 13, 2000. She was temporarily suspended for failing to pay her annual assessment to the Client Protection Fund for: April 8 - 17, 2003; April 7 - July 4, 2004; April 10, 2007 - February 28, 2008; March 15 - April 5, 2012; and March 20 - April 3, 2014. Ms. Proctor continued to practice law during her periods of suspension.
1. Representation of Robin R. Belfast.
Around January 18, 2006, Robin R. Belfast retained Ms. Proctor to represent her in connection with her claim of age and race discrimination against her former employer, Verizon Communications (“Verizon“). Verizon dismissed Ms. Belfast after 27 years, due to a reduction in work force. Prior to retaining Ms. Proctor, Ms. Belfast had filed a claim with the Equal Employment Opportunity Commission, which issued a right to sue letter on December 29, 2005, giving Ms. Belfast 90 days to file a civil complaint against Verizon.
Ms. Proctor failed to file the complaint. Over the next six years, Ms. Proctor not only failed to disclose that fact to Ms. Belfast, but she affirmatively misrepresented the status of the matter, that the litigation was underway and ongoing. Based on such misrepresentations, Ms. Belfast believed that Ms. Proctor was actively litigating her case and engaging in settlement discussions.
For example, on March 12, 2010, Ms. Belfast wrote Ms. Proctor to inquire about the status of her case. Three days later, Ms. Proctor responded with intentionally misleading statements, indicating that she was working to resolve the matter and “looking into additional details” of a potential witness.
Between August 20, 2010 and December 2011, Ms. Proctor continued to mislead Ms. Belfast by stating that settlement discussions were ongoing, that she was having discussions with Verizon, and that a trial was scheduled for March 29, 2012.
On August 13, 2012, Ms. Proctor offered Ms. Belfast $250,000 to settle a potential malpractice claim arising from her neglect of Ms. Belfast‘s case. Ms. Proctor did not advise Ms. Belfast that she had a conflict of interest and that Ms. Belfast should seek the advice of other counsel in connection with the proposed settlement. Without the benefit of counsel, Ms. Belfast accepted the offer. On October 9, 2012, Ms. Proctor prepared and provided to Ms. Belfast a written settlement agreement which inexplicably reduced her payment obligation to $200,000. Again without the benefit of counsel, Ms. Belfast agreed to the twenty percent reduction in the settlement amount. Ms. Belfast repeatedly asked for a copy of her file, but Ms. Proctor never provided it to her.
Between January and September 2013, Ms. Proctor made empty promises, stating that she was waiting for a personal injury settlement and trying to obtain a loan in order to pay the settlement. When neither source of funds came through, in October 2013, Ms. Proctor offered to pay Ms. Belfast $1,000 a month towards the settlement. Ms. Proctor made her first payment in November 2013, which was returned for insufficient funds. In
In July 2017 and January 2018, fed up with Ms. Proctor‘s sporadic and unreliable payments, Ms. Belfast told Ms. Proctor that she was going to file a complaint with the AGC and the Maryland State Bar Association if Ms. Proctor did not pay her debt in full immediately. Ms. Proctor attempted to dissuade Ms. Belfast from contacting the AGC by knowingly misrepresenting to Ms. Belfast that the settlement amount would likely be re-litigated and would “result in a lower amount due, which may ultimately resolve this matter sooner.” When Ms. Belfast filed her complaint with the AGC in January 2018, Ms. Proctor still owed her approximately $224,000, inclusive of late fees stipulated in the settlement agreement.
2. Representation of Antonia G. Colvin.
On or about October 13, 2017, Antonia G. Colvin retained Ms. Proctor to represent her in her capacity as personal representative for her husband‘s estate (the “Estate“). Ms. Proctor agreed to defend a $55,942 disallowed claim made against the Estate by King T. Leatherbury Associates, Inc. (“Leatherbury“). When Ms. Proctor was retained, Ms. Colvin had already been served with the complaint as well as discovery requests. The deadline for cоmpletion of discovery was March 18, 2018.
On November 13, 2017, Ms. Proctor entered her appearance and filed an answer to the complaint. Ms. Proctor did not, however, respond to the discovery requests or discuss them with Ms. Colvin. Shortly thereafter, Leatherbury‘s counsel served a second request
On February 19, 2018, Leatherbury‘s counsel wrote Ms. Proctor a letter to resolve its unanswered discovery requests and schedule a new deposition date. Ms. Proctor replied on February 22, 2018 and indicated that she intended to file a motion to dismiss and would request an extension for Ms. Colvin‘s discovery responses until after the motion to dismiss was resolved. The next day, Leatherbury moved for sanctions due to Ms. Colvin‘s discovery failure. Ms. Proctor failed to respond to the motion.
On March 27, 2018, the court granted the motion for sanctions, ordered Ms. Colvin to respond to the discovery request within ten days, and ordered Ms. Colvin to pay the fees incurred by Leatherbury‘s counsel in connection with the motion. Ms. Proctor never disclosed any of this to Ms. Colvin.
The parties participated in a settlement conference, which did not resolve the claim. Trial was scheduled for December 13, 2018.
Leatherbury filed a second motion for sanctions as a result of Ms. Colvin‘s failure to comply with the March 27 order. In opposition to this motion, Ms. Proctor falsely stated Ms. Colvin‘s responses to discovery had been mailed on April 20, 2018. In fact, Ms. Proctor did not mail the responses until November 26, 2018.
Ms. Proctor filed a pretrial statement and proposed jury instructions and voir dire, which were returned by the court as being deficient.
On December 11, 2018, the court held a hearing on the second motion for sanctions. Neither Ms. Colvin, who was unaware of the hearing, nor Ms. Proctor appeared. Ms.
Prior to the damages hearing, the parties reached an agreement under which Ms. Colvin would pay Leatherbury $20,000 in full satisfaction of its claims. Ms. Colvin had 45 days from December 13, 2018 to make payment in full. As a result, the damages hearing was rescheduled for February 14, 2019, in the event that the parties did not fulfill their оbligations under the settlement agreement. Ms. Colvin asked Ms. Proctor for information regarding the settlement, but Ms. Proctor failed to respond. As she had no knowledge of the settlement details, Ms. Colvin did not make the settlement payment within the 45-day period. In January 2019, the court granted Leatherbury‘s motion for attorneys’ fees in the amount of $2,600.
On February 12, 2019, Leatherbury‘s counsel informed Ms. Proctor that the $20,000 settlement was off the table, and that the price of settlement had gone up to $35,000. Ms. Proctor counseled Ms. Colvin to reject the settlement because, she predicted, she could get a more favorable result at the February 14 hearing. Unaware that the merits of Leatherbury‘s claim had already been determined and that the purpose of the February 14, 2019 hearing was merely to determine damages, Ms. Colvin rejected the $35,000 offer. On February 14, 2019, Leatherbury was awarded the full amount of its claim totaling $55,942.
3. Representation of Steven W. Barrow.
Steven W. Barrow retained Ms. Proctor on February 21, 2018 to represent him in connection with his divorce from Alcinda Cirwithian. Under their fee agreement, Ms. Proctor agreed to charge $300 per hour. Mr. Barrоw paid an initial retainer of $5,000.
On or about February 22, 2018, Mr. Barrow was served with process. Ms. Proctor failed to file an answer or enter her appearance or file a motion to transfer venue, as she had stated she would do.
Mr. Barrow was served with discovery, which he provided to Ms. Proctor. Ms. Proctor failed to respond. Ms. Cirwithian filed a motion for a default judgment, and the court entered an order of default against Mr. Barrow on April 11, 2018. Ms. Proctor reacted to the order of default by entering her appearance, promising opposing counsel that discovery responses would be forthcoming within days, and filing an untimely motion to transfer venue.
The discovery responses were not forthcoming. Opposing counsel filed a motion for sanctions and served Ms. Proctor with requests for admissions. On May 7, 2018, Ms. Proctor filed responses to the discovery requests and an opposition to the motion for sanctions, assuring the court that the responses had been provided. As a result, the motion for sanctions was denied as moot. Ms. Proctor also filed a motion to vacate the default judgment, which the court granted.
On July 25, 2018, Ms. Proctor served untimely discovery requests on Ms. Cirwithian.
On August 22, opposing counsel filed a second motion to compel and for sanctions due to Mr. Barrow‘s deficient discovery responses. Mr. Barrow had provided supplemental responses to Ms. Proctor, but Ms. Proctor failed to pass them along to opposing counsel. That same day, Ms. Proctor moved for an extension of the discovery deadline, which the court denied.
The scheduling order had imposed a deadline for filing exhibit lists in advance of the pendente lite hearing. Ms. Proctor failed to file the exhibit list, resulting in a court order precluding Mr. Barrow from introducing any exhibits at the hearing.
On September 6, Ms. Proctor filed an opposition to the second motion for sanctions, claiming that she had filed extensive discovery responses, and was continuing to supplement them.
On September 10, the court denied Ms. Proctor‘s request for an extension of the discovery deadline and scheduled a hearing on the second motion for sanctions.
On October 19, the court granted opposing counsel‘s second motion to compel and for sanctions. The court gаve Mr. Barrow ten days to supplement his deficient responses. Ms. Proctor failed to inform Mr. Barrow of this deadline; instead, she falsely stated that
On December 4, Mr. Barrow contacted Ms. Proctor to return the monies he had paid for her services. Ms. Proctor never responded to Mr. Barrow‘s request.
4. Representation of Norman Ireland.
On January 1, 2019, Ms. Proctor was retained by Norman Ireland in connection with his divorce from Althea Jacques-Ireland. Ms. Proctor entered her appearance and filed an answer to the complaint. Ms. Proctor, however, did not serve a copy of the answer on Ms. Jacques-Ireland and declined to respond to her requests for a copy.
5. Bar Counsel‘s Investigation.
a. Ms. Belfast‘s Complaint.
On January 20, 2018, Ms. Belfast filed a complaint against Ms. Proctor with the AGC. Bar Counsel sent a letter to Ms. Proctor requesting her response to the complaint by February 21, 2018. Ms. Proctor failed to respond until February 27, 2018, and then asked Bar Counsel for an extension until March 12, 2018.
On March 12, 2018, Ms. Proctor responded, stating that, due to “considerable passage of time,” she had “no independent memory of specific dates, witness names or many other facts related to” Ms. Belfast‘s case. However, she did admit that she did not
On November 5, 2018, Ms. Proctor responded to Bar Counsel‘s August request. She falsely stated that she disclosed her misrepresentation in 2008 and immediately thereafter took responsibility for this omission. She further stated that it took until 2012 to reach a settlement with Ms. Belfast due to extended negotiations concerning Ms. Belfast‘s inflated expectations of the value of her claim.
b. Ms. Colvin‘s Complaint.
On March 11, 2019, Ms. Colvin filed a complaint against Ms. Proctor with the AGC. Bar Counsel requested a response by April 12, 2019. In response to Ms. Proctor‘s request for more time, Bar Counsel extended the deadline to May 12, 2019. On June 28, 2019, after having not received a response, Bar Counsel wrote to Ms. Proctor requesting a response by July 12, but again received no response. On August 21, one of Bar Counsel‘s investigators trаveled to Ms. Proctor‘s house and was advised to leave Bar Counsel‘s letters at her front door. Again, Ms. Proctor failed to provide any response.
c. Mr. Barrow‘s Complaint.
On March 27, 2019, Mr. Barrow filed a complaint against Ms. Proctor with the AGC. On April 16, 2019, Bar Counsel requested that Ms. Proctor respond to Mr. Barrow‘s complaint. Having received no response, Bar Counsel again requested a response to the
d. Ms. Jacques-Ireland‘s Complaint.
On April 25, 2019, Ms. Jacques-Ireland filed a complaint against Ms. Proctor with the AGC. On May 8, 2019, Bar Counsel requested Ms. Proctor‘s response to the complaint by May 24, 2019. Having received no response, Bar Counsel reiterated the same request in June and July. Each time, Ms. Proctor did not respond. Ms. Proctor also did not respond after Bar Counsel‘s investigator left Bar Counsel‘s letters at her front door on August 21.
STANDARD OF REVIEW
This Court has original jurisdiction over attorney discipline proceedings and conducts an independent review of the hearing judge‘s findings of fact and conclusions of law. Attorney Grievance Comm‘n v. Hamilton, 444 Md. 163, 178 (2015). We review the hearing judge‘s conclusions of law without deference.
Otherwise, we review the record to determine whether the hearing judge‘s factual findings “have been proved by the requisite standard of proof set out in
A. Exceptions to the Hearing Judge‘s Findings of Fact.
Either party may file exceptions to the hearing judge‘s conclusions of law or findings of fact.
1. Statute of Limitations/Laches Exception.
In connection with the Belfast matter and the claims that she is liable for the unauthorized practice of law, Ms. Proctor argues that her due process rights were violated by the AGC‘s lengthy 14-year delay in filing its Petition. She contends she was prejudiced by this delay by virtue of a failing memory with the passage of time and that she no longer has her notes from the case.
We are not persuaded. Ms. Proctor bases her statute of limitations argument on
To the extent Ms. Proctor is relying on the doctrine of laches, that too is unavailing to her. In Attorney Grievance Comm‘n v. Cassilly, 476 Md. 309, 348 (2021), we held that, “with the possible exception of cases involving both extraordinary circumstances of delay and actual prejudice resulting in a clear due process violation, applying the doctrine of laches to attorney discipline proceedings would not be consistent with the goal of such proceedings, which is to protect the public.” Thus, a respondent has a steep hill to climb to succeed with a laches defense.
Here, Ms. Proctor does not come within striking distance of meeting this exacting standard. The delays in the Belfast matter were of her own making and directly resulted from her intentional and continuous misrepresentations and her other professional misconduct. Ms. Belfast did not become aware that Ms. Proctor never filed her complaint against Verizon until 2012, six years after Ms. Proctor was retained and six years after Ms. Proctor failed to file. Ms. Proctor‘s malfeasance continued with the drafting of an agreement to settle Ms. Belfast‘s claims against her because she neither informed Ms. Belfast of the conflict of interest between them nor advised her to seek advice from independent counsel. Between 2012 and 2013, Ms. Proctor continued to make empty
Ms. Belfast filed her claim with the AGC in January 2018. The AGC began investigating Ms. Proctor‘s conduct and more complaints began rolling in. Specifically, Ms. Colvin filed her complaint on March 11, 2019, Mr. Barrow filed his complaint on March 27, 2019, and Ms. Jacques-Ireland filed her complaint on April 25, 2019. Due to the influx of complaints, the AGC had more to investigate and, for efficiency purposes, reasonably brought a consolidated proceeding to address all of the complaints. Moreover, Ms. Proctor refused to cooperate with the investigation. Her misconduct unquestionably caused delays in the investigation and contributed significantly to the Petition not being filed until 2020. As such, Ms. Proctor has failed to meet the steep requirements of a viable laches defense.
We therefore overrule Ms. Proctor‘s exceptions based on laches.5
2. General Exception to all Findings of Fact.
Ms. Proctor excepts to all the hearing judge‘s findings of fact because they resulted from facts established as a result of allegedly improper discovery sanctions. She contends
Ms. Proctor‘s exceptions are without merit. After agreeing to withdraw the motion for default, Bar Counsel re-served Ms. Proctor with the discovery requests both by regular mail and email, as confirmed in the notice of service provided therewith. Ms. Proctor acknowledged receipt of that email. Ms. Proctor claims she never received the hard copies of the discovery requests, and that the requests for admissions had over 1,400 pages of documents attached thereto. But Ms. Proctor never moved to strike the service as improper or deficient. Nor did she move for a protective order because the discovery was too burdensome. See Attorney Grievance Comm‘n v. McCarthy, 473 Md. 462, 484 n.8 (2021).
Bar Counsel patiently gave Ms. Proctor several opportunities to comply with the discovery requests before moving for sanctions. As to the first motion for sanctions, the hearing judge chose not to sanction Ms. Proctor in favor of giving her an opportunity to come into compliance with her discovery obligations. The hearing judge gave Ms. Proctor 10 days to fully rеspond in an order that was both emailed and mailed to her. Nonetheless, Ms. Proctor failed to comply, claiming she didn‘t get the order because she moved out of her home, and the U.S. Postal Service failed to forward her mail. And she contends that she didn‘t check her email because she was “separated from her computer on an ongoing basis.” The hearing judge justifiably faulted Ms. Proctor for her failure to keep informed about the case.
Each matter of which an admission is requested shall be deemed admitted unless, within 30 days after service of the request or within 15 days after the date on which that party‘s initial pleading or motion is required, whichever is later, the party to whom the request is directed serves a response signed by the party or the party‘s attorney. As to each matter of which an admission is requested, the response shall set forth each request for admission and shall specify an objection, or shall admit or deny the matter, or shall set forth in detail the reason why the respondent cannot truthfully admit or deny it. The reasons for any objection shall be stated. A denial shall fairly meet the substance of the requested admission, and when good faith requirеs that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and deny or qualify the remainder. A respondent may not give lack of information or knowledge as a reason for failure to admit or deny unless the respondent states that after reasonable inquiry the information known or readily obtainable by the respondent is insufficient to enable the respondent to admit or deny. A party who considers that a matter of which an admission is requested presents a genuine issue for trial may not, on that ground alone, object to the request but the party may, subject to the provisions of section (e) of this Rule, deny the matter or set forth reasons for not being able to admit or deny it.
Under this Rule, the requests were automatically deemed admitted due to Ms. Proctor‘s failure to timely respond. Subsection (d) of this Rule provides that a party in Ms. Proctor‘s shoes may move to withdraw the admissions to the requests, which the court may grant if it “finds that it would assist the presentation of the merits of the action and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits.” Here, Ms. Proctor filed no such motion. The requests were, therefore, properly deemed admitted.
Turning now to the sanctions against Ms. Proctor,
A hearing judge is “vested with broad discretion in imposing sanctions when a party fails to comply with [discovery] rules.” Attorney Grievance Comm‘n v. Kreamer, 404 Md. 282, 342 (2008). Our role is to review the record to determine whether the court considered the relevant factors identified in Taliaferro v. State, 295 Md. 376 (1983). See Butler v. S & S Partnership, 435 Md. 635, 650 (2013). The Taliaferro factors are:
whether the disclosure violation was technical or substantial, the timing of the ultimate disclosure, the reason, if any, for the violation, the degree of prejudice to the parties respectively offering and opрosing the evidence, whether any resulting prejudice might be cured by a postponement and, if so, the overall desirability of a continuance.
Id. (quoting Taliaferro, 295 Md. at 390-91).
At the hearing on the second sanctions motion, Ms. Proctor went through these factors and argued that they weighed against sanctioning her and in favor of another extension of the 120-day deadline for commencing the hearing.6 The transcript from the
We are satisfied from our review of the record that the hearing judge understood the facts and circumstances surrounding Ms. Proctor’s discovery failures and acted well within her considerable discretion in entering the sanctions order.7 Accordingly, we overrule Ms. Proctor’s exceptions based on the discovery rulings made by the hearing judge.
3. General Exceptions to the May 6, 2021 Hearing.
We turn now to Ms. Proctor’s exceptions to the findings based on the hearing judge’s conduct at the May 6, 2021 hearing. Ms. Proctor asserts that the hearing judge informed her that before a hearing would be scheduled in this case, Bar Counsel would need to file a motion with the Court of Appeals and wait for that motion to be granted. This, she contends, gave Ms. Proctor “no choice” except tо consent to an extension. Ms. Proctor further contends that she was unfamiliar with the process at that time, and was therefore strong-armed into consenting to this motion. She argues that the hearing judge’s instruction was incorrect, erroneous, and resulted in unspecified prejudice to her.
We overrule this exception. The May 6 hearing was a scheduling conference where all parties agreed that (1) all discovery would be completed by July 30, 2021; (2) all
Pursuant to
Ms. Proctor’s exception fails for three simple reasons. First, she consented to the motion; that she did so lacking a familiarity with the process was of her own choosing. Second, the extension of the 120-day period was necessitated because of the issue of service that Ms. Proctor raised. Third, Ms. Proctor failed to articulate any prejudice to her from the extension, and no such prejudice is discernible in this record.
B. Conclusions of Law.
From the foregoing factual findings, the hearing judge found by clear and convincing evidence that Ms. Proctor violated
We will now address each of the hearing judge’s conclusions of law. In sum, we agree with the hearing judge’s findings and overrule Ms. Proctor’s remaining exceptions.
1. MARPC 1.1 (Competence).
An attorney demonstrates incompetence by failing to act in a timely fashion that may result in harm to the client. Attorney Grievance Comm‘n v. Brown, 426 Md. 298, 319 (2012). Similarly, an attorney demonstrates incompetence by failing to file necessary motions or failing to appear at a hearing. Attorney Grievance Comm‘n v. Walker-Turner, 428 Md. 214, 226-28 (2012).
The hearing judge found that Ms. Proctor provided incompetent representation to Ms. Belfast when she failed to timely file the lawsuit against Verizon. The hearing judge found that Ms. Proctor provided incompetent representation to Ms. Colvin due to her insufficient responses to discovery and the motion for sanctions, failing to correct these responsеs, ignoring a court order, and failing to appear at a hearing on Ms. Colvin’s behalf. And the hearing judge found that Ms. Proctor provided incompetent representation to Mr. Barrow by failing to inform him of relevant deadlines, failing to timely respond or propound discovery, and failing to timely file a motion to transfer venue. These findings are supported by clear and convincing evidence.
Although Ms. Proctor does not expressly except to the hearing judge’s conclusion that she violated
2. MARPC 1.2 (Scope of Representation).
Subject to sections (c) and (d) of this Rule, an attorney shall abide by a client’s decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. An attorney may take such action on behalf of the client as is impliedly authorized to carry out the representation. An attorney shall abide by a client’s decision whether to settle a matter. In a criminal case, the attorney shall abide by the client’s decision, after consultation with the attorney, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
A client is entitled “to make informed decisions as to the objectives of the representation[].” Attorney Grievance Comm‘n v. Shapiro, 441 Md. 367, 380 (2015). An attorney who deprives a client of this power by failing to give sufficient updates concerning his case violates
The hearing judge concluded that Ms. Proctor violated
3. MARPC 1.3 (Diligence).
The hearing judge found that this Rule was violated when Ms. Proctor declined to serve a copy of Mr. Ireland’s answer on Ms. Jacques-Ireland and ignored her requests for said copy. The hearing judge further found that Ms. Proctor violated this Rule during her representation of Ms. Belfast, Ms. Colvin, and Mr. Barrow for the same reasons she was
Here again, Ms. Proctor does not specifically except to the hearing judge’s cоnclusion that she violated
4. MARPC 1.4 (Communication).
(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;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the attorney’s conduct when the attorney knows that the client expects assistance not permitted by the Maryland Attorneys’ Rules of Professional Conduct or other law.
(b) An attorney shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
The hearing judge concluded that
5. MARPC 1.5 (Fees).
An attorney shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses. The factors to be considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment of the attorney;
(3) the fee customarily charged in thе locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the attorney or attorneys performing the services; and
(8) whether the fee is fixed or contingent.
In determining whether a fee is unreasonable, this Court does not limit its analysis to the fee at the inception of the representation. Attorney Grievance Comm‘n v. Garrett, 427 Md. 209, 224 (2012). Rather, we also examine the fee at the conclusion of the representation in relation to the services provided. See Planta, 467 Md. at 350-51; Attorney
The hearing judge determined that this rule was violated when Ms. Proctor collected an unreasonable amount of fees from Mr. Barrow. Although no issue was found on the face of their fee agreement, those fees later became unreasonable because of the lack of competent or diligent representation that Ms. Proctor provided. Additionally, this Rule was violated when Ms. Proctor charged Mr. Barrow $1,200. for transcripts that only cost $243—a markup of nearly 500%—without any explanation or justification. The hearing judge’s conclusion of law that Ms. Proctor violated
6. MARPC 1.16 (Declining or Terminating Representation).
Upon termination of representation, an attorney shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client, allowing time for employment of another attorney, surrendering papers and property to which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The attorney may retain papers relating to the client to the extent permitted by other law.
The hearing judge determined that Ms. Proctor violated
7. MARPC 3.3 (Candor Toward the Tribunal).
The hearing judge concluded that Ms. Proctor violated this Rule in connection with her representation of Ms. Colvin on November 27, 2018, when she falsely stated that she mailed Ms. Colvin’s discovery responses to opposing counsel on April 20, 2018, and that she was never made aware that the responses were not received. This conclusion is supported by clear and convincing evidence.
8. MARPC 5.5 (Unauthorized Practice of Law; Multi-Jurisdictional Practice of Law).
(a) An attorney shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.
(b) An attorney who is not admitted to practice in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the attorney is admitted to practice law in this jurisdiction.
In determining whether
Ms. Proctor excepts to this finding. She claims that she should not have been forced to defend herself against allegations that occurred seven to 18 years prior to the filing of the Petition. She additionally contends that when the Petition was filed, she had no records or recollection relevant to her payment of the annual dues. Finally, she avers that the hearing judge’s conclusion is unsupported since there were no specific examples given of when she practiced law during the periods when she was temporarily suspended or decertified.8
We overrule Ms. Proctor’s exception. One period when Ms. Proctor was suspended from the practice of law was between March 15 and April 5, 2012. On March 21, however, Ms. Proctor improperly provided legal advice to Ms. Belfast when she stated that there was no case pending against Verizon and that she was unsure of whether she failed to file the lawsuit or whether it was improperly docketed. Thus, the hearing judge’s conclusion of law that Ms. Proctor violated
9. MARPC 8.1 (Bar Admission and Disciplinary Matters).
An applicant for admission or reinstatement to the bar, or an attorney in connection with a bar admission application or in connection with a disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by
Rule 19-301.6 .
The hearing judge concluded Ms. Proctor violated
The hearing judge’s conclusion of law that Ms. Proctor violated
10. MARPC 8.4 (Misconduct).
It is professional misconduct for an attorney to:
(a) violate or attempt to violate the Maryland Attorneys’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
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(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice[.]
The hearing judge found that Ms. Proctor violated
The hearing judge found that Ms. Proctor violated
We affirm the hearing judge’s finding as to this violation. See Attorney Grievance Comm‘n v. Mixter, 441 Md. 416, 523-24 (2015) (holding that an attorney’s “dishonest and misrepresentative actions” violated
When an attorney’s actions “bring the legal profession into disrepute[,]” she has committed a violation of
SANCTION
We sanction attorney misconduct with the purpose of safeguarding the public from those unfit to practice law, not to punish the attorney. Attorney Grievance Comm‘n v. Karambelas, 473 Md. 134, 176-77 (2021). We will assess the individual circumstances, inclusive of any mitigating or aggravating factors, of each case in order to determine a sanction commensurate to the violations committed. Id. at 177.
A. Mitigating Factors.
We recognize the following mitigating factors in considering the appropriate sanction:
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith efforts to make restitution or to rectify the misconduct’s consequences; (5) full and free disclosure to [Bar Counsel] or a cooperative attitude toward the attorney discipline proceeding; (6) inexperience in the practice of law; (7) character or reputation; (8) a physical disability; (9) a mental disability or chemical dependency, including alcoholism or drug abuse, where: (a) there is medical evidence that the lawyer is affected by a chemical dependency or mental disability; (b) the chemical dependency or mental disability caused the misconduct; (c) the lawyer’s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (d) the recovery arrested the misconduct, and the misconduct’s recurrence is unlikely; (10) delay in the attorney discipline proceeding; (11) the imposition of other penalties or sanctions; (12) remorse; (13) remoteness of prior violations of the MLRPC; and (14) unlikelihood of repetition of the misconduct.
B. Aggravating Factors.
The Court also considers the following aggravating factors:
(1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple violations of the [MARPC]; (5) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with the Maryland Rules or orders of this Court or the hearing judge; (6) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (7) a refusal to acknowledge the misconduct’s wrongful nature; (8) the victim’s vulnerability; (9) substantial experience in the practice of law; (10) indifference to making restitution or rectifying the misconduct’s consequences; (11) illegal conduct, including that involving the use of controlled substances; and (12) likelihood of repetition of the misconduct.
Attorney Grievance Comm‘n v. Sperling, 459 Md. 194, 275 (2018). The hearing judge found that Bar Counsel proved eight aggravating factors by clear and convincing evidence. We agree.
First, the hearing judge found that Ms. Proctor had a dishonest or selfish motive. Ms. Proctor made several misrepresentations to conceal the true status of Ms. Belfast’s case and made false statements surrounding their settlement agreement to deter Ms. Belfast from filing a complaint with the AGC. Ms. Proctor also had a dishonest and selfish motivе in connection with her representation of Ms. Colvin by falsely stating that Ms. Colvin’s discovery responses were mailed to opposing counsel and that she was unaware they were never received. She had a dishonest and selfish motive in connection with her representation of Mr. Barrow when she knowingly misrepresented the outcome of the
Second, the hearing judge found that Ms. Proctor exhibited a pattern of misconduct, evidenced by her repeated failings to file pleadings, motions, and discovery, and to inform her clients of these shortcomings.
Third, as evidenced by our above analysis on MARPC violations, Ms. Proctor committed numerous violations while representing her clients and during Bar Counsel’s investigation.
Fourth, Ms. Proctor engaged in bad faith obstruction of the disciplinary process by intentionally making false statements to Bar Counsel and refusing to comply with the lawful requests for information regarding the complaints filed against her.
Fifth, during her disciplinary hearing, Ms. Proctor made knowingly false statements and submitted false evidence. Ms. Proctor falsely stated that she never received Bar Counsel’s discovery requests, falsely stated that she was never served by the process server and that the affidavit submitted by the process server was untrue, and falsely claimed that she mailed discovery responses to Bar Counsel.
Sixth, Ms. Proctor has not acknowledged the wrongful nature of her conduct. She still avers that she was never served with the requests for admissions and that the hearing judge “erroneously” ordered discovery sanctions. Ms. Proctor also does not appear to accept responsibility for the allegations from Ms. Colvin, Ms. Jacques-Ireland, and Mr. Barrow. For each of those matters, she claims that she has evidence pertaining “both to
Seventh, Ms. Proctor has been admitted to the Maryland Bar for approximately 22 years, which is a substantial amount of experience. Thus, she was or should have been aware of her professional obligations and the seriousness of her actions.
Last, Ms. Proctor has repeatedly failed to make payments to Ms. Belfast pursuant to their settlement agreement. She similarly failed to reimburse Ms. Colvin and Mr. Barrow for the sanctions they were assessed because of her failings in their cases or to refund Mr. Barrow for any part of the unreasonable fee she collected. These actions evidence Ms. Proctor’s unwillingness to make her clients whole for the damage she has caused.
C. Analysis.
Ms. Proctor’s transgressions involve intentional dishonesty and the unauthorized practice of law. In Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 418 (2001), this Court found that disbarment is often the appropriate sanction when the attorney’s wrongful actions involve dishonesty. We cautioned that
[o]nly if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.
Id. at 414. On the other hand, when there has been no misappropriation of money, intentional dishonesty has not always resulted in disbarment. See, e.g., Attorney Grievance Comm‘n v. Keating, 471 Md. 614, 656 (2020); Attorney Grievance Comm‘n v. Lane, 367 Md. 633, 646-47 (2002) (“We have not, however, always found disbarment to be the appropriate sanction where there is misrepresentation involved, especially where misappropriation of money was not involved.“). It all depends, of course, on the specific facts and circumstanсes of each case. Attorney Grievance Comm‘n v. Bonner, 477 Md. 576, 622 (2022) (citing Attorney Grievance Comm‘n v. Palmer, 417 Md. 185, 211 (2010)).
In our recent decision in Attorney Grievance Commission v. Collins, 477 Md. 482, 529-530 (2022), we reexamined when intentional dishonest conduct would warrant disbarment under the standard set forth in Vanderlinde, 364 Md. at 367.9 There, we analyzed AGC cases post-Vanderlinde and observed that disbarment has generally been warranted in cases where intentional dishonest conduct has also been accompanied by “theft, fraud, harm to a client or third party, or the intentional misappropriation of funds.” Id. at 530.
Ms. Proctor’s misconduct directly harmed her clients. Her clients lost claims and defenses due to her serial neglect, paid unreasonable fees, and were deprived of important information necessary to make informed decisions about their cases. Our review of prior attorney misconduct cases informs us that Ms. Proctor’s actions align with the cases in which we have imposed the sanction of disbarment. See, e.g., Attorney Grievance Comm‘n v. McCarthy, 473 Md. 462, 507 (2021) (disbarring an attorney who engaged in self-serving, dishonest behavior that resulted in harm to his client); Attorney Grievance Comm‘n v. Armstrong, 471 Md. 537, 608-09, 612 (2020) (disbarring an attorney who got his client’s case dismissed with prejudice due to the attorney’s failure to respond to discovery, and cаusing a different client to be deported by missing a filing deadline for asylum); Attorney Grievance Comm‘n v. Miller, 467 Md. 176, 237-38 (2020) (disbarring an attorney who made misrepresentations that resulted in harm to her client); Attorney Grievance Comm‘n v. Bleecker, 414 Md. 147, 180 (2010) (disbarring an attorney who harmed his client by concealing that he missed the statute of limitations to file a client’s case).
Ms. Proctor further failed to demonstrate any “compelling extenuating circumstances” to justify a sanction less than disbarment. Collins, 477 Md. at 530; Vanderlinde, 364 Md. at 413-14. Her allegations that she was having emotional difficulties
https://mdcourts.gov/sites/default/files/import/appellate/correctionnotices/coa/1a20agcn.pdf
Notes
Vanderlinde, 364 Md. at 413-14.in cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as “compelling extenuating circumstances,” anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the “root cause” of the misconduct and that also result in an attorney’s utter inability to conform his or her conduct in accordance with the law and with the M[A]RPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.