Attorney Grievance v. Ficker
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IN THE COURT OF APPEALS OF MARYLAND Misc. AG No. 26 September Term, 2006 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. ROBIN K. A. FICKER ______________________________________ Raker Cathell Harrell Greene Eldridg e, John C. (Retired, specially assigned) Wilner, Alan M. (Retired, specially assigned) Bloom, Theodore G. (Retired, specially assigned) JJ. ______________________________________ Opinion by Wilner, J. Cathell, J., concurs and dissents. ______________________________________ Filed: June 7, 2007 Robin K. A. Ficker, who was adm itted to the Maryland Bar in 1973, maintains a high volu me practice concentra ting on crim inal, drunk d riving, and o ther motor v ehicle violation matters in the District Court, primarily in the central Maryland area. This is the fifth time he has been charged with violations of the Maryland Rules of Professional Conduct (MRPC), mostly emanating from carelessness in the running of his office carelessness that has resulted in failures on his part or on the part of lawyers he was responsible for supervising to appear in court or otherwise properly attend to client matters.1 In the last of his cases to reach us, we observed that Ficker was running a high-volu me opera tion withou t adequate m anagerial sa feguards and that, as a result, clients were not afforded competent representation. Attorney Griev. Comm. v. Ficker, 349 Md. 13, 43, 706 A.2d 1045, 1059 (1998). It is estimated that he now handles between 1,000 and 1,500 cases a year. This proceeding arises from similar kinds of complaints with respect to three clients Ms. Rob ertshaw, Ms. Pau lk, and Mr. Ponto. U pon the filing of Ba r Counsel s 1 In 1990, Ficker was publicly reprimanded by us upon a finding that he had violated ethical rules prohibiting neglect, conduct prejudicial to the administration of justice, a nd lack of dilige nce. See Attorney Griev. Comm n v. Ficker, 319 Md. 305, 572 A.2d 501 (1990). In March, 1998, upon a finding that the sloppy manner in which he operate d his of fice ha d resulte d in fur ther vio lations o f MC PR 1.1 (Com petenc e), 1.3 (Diligence), 3.4 (Fairness to opposing counsel and parties), 5.1 (supervising lawyers), and 8.4(d) (Co nduct preju dicial to the ad ministration o f Justice), he w as indefinite ly suspen ded, w ith the rig ht to reap ply for ad mission after 12 0 days. See Attorney Griev. Comm. v. Ficker, 349 M d. 13, 706 A .2d 1045 (1998). In A ugust, 199 8, he was privately reprim anded by the A ttorney G rievanc e Com mission for vio lation of MR PC 1.1 (Competence). In January, 2002, he was privately reprimanded by the Attorney Grievance C ommission for v iolation of MR PC 1.4 (Com munication with client). Petition for Disciplinary or Remedial Action and in accordance with Maryland Rule 16752(a), w e des igna ted Judge Joh n De beliu s, of the C ircuit Co urt for M ontg ome ry County, to conduct a hearing in the matter and to present to us his findings of fact and conclusions of law. Upon the evidence presented, some in the form of a stipulation, Judge Debelius found the follo wing f acts and conclu sions o f law. General Ficker has operated a law practic e in Mo ntgomery C ounty for mo re than twe nty years. Although he has regularly employed associate attorneys to assist him, his practice operates under his name alone, as The Law Offices of Robin Ficker and Ficker is the sole principa l of the firm and is respo nsible for su pervising th e activities of th e associate attorneys and no n-lawye r assistan ts emplo yed by the f irm. Robertshaw Responding to a mailed solicitation from Ficker, Ms. Robertshaw, on April 18, 2005, retained Ficker to represent her in connection with a charge of driving under the influence of alcohol and several associated traffic offenses, including an open container violation. Th e agreed f ee was $ 599. Alo ng with a s igned retain er agreem ent and a c redit card authorization for $300, as a deposit on the fee, Ms. Robertshaw sent two trial notices to Ficker o ne show ing a trial date o f June 2, 2 005 at 8:45 a.m. in the D istrict Court in -2- Glen Burnie for the DUI offense, and the other showing trial on the other charges on June 9, 2005 at 1:15 p.m., also in the Glen Burnie court. Immediately upon receipt of those documents, Ficker mailed to the clerk of the District Court in Glen Burnie his appearance and a motion to consolidate the two cases. The motion was granted, but, for whatever reason, a co py of the orde r granting the consolidatio n never rea ched Fick er s office, so his records continued to show two trial dates, one June 2 and one June 9. Robertshaw knew that Ficker would attempt to consolidate the two cases, and she awaited word from him as to when she would need to appear. She called several times and left voice-mail messages; those calls were not returned. On one occasion, she reached Ficker, who said he was in his car, did not have her file with him, and that, when he got the information, he would advise her. Robertshaw received no further information from Ficker or his office until June 8, when she received a call from Mark Kosko, an associate attorney in Ficker s office. Kosko was one of two associates in Ficker s office. There was no assignment system in the office under w hich cases were assig ned when the file was opened . Rather, Kosko would review the firm s master calendar and assign to himself the cases he said he could handle, which would usually take place about two weeks before the scheduled trial date.2 Kosko reviewed Robertshaw s file during the last week of May. He was 2 Kosko stated that he u sually handled cases set fo r trial in Anne Arunde l County or on the Eastern Shore. -3- scheduled to go on vacation for a week, commencing May 30, 2005, and thus knew that he would be unavailable for the trial scheduled for June 2. He instructed the office staff to check on the June 2nd trial date but was unsure whether that had occurred before he left for vaca tion. Kosk o returned to work on June 6, and , at some po int, determined that a trial remained scheduled for June 9. The call to Ms. Robertshaw on June 8 was the first and only communication with the client. In that conversation, according to Kosko, Ms. Robershaw advised him of only one relevant prior conviction. Although, in response to discovery, the State s Attorney s Office had informed Ficker by letter that Robertshaw had two prior alcohol-related convictions and that letter was in the file, Kosko , assuming that the letter w as a boilerp late cover letter failed to read the entire letter and thus wa s unaware of the two convictions. H e was prepared to try the case or negotiate a plea agreement in the belief that his client had only one prior conviction. When he learned about the second conviction from the prosecutor on the afternoon of trial, he negotiated a plea deal, without discussing the matter with Ms. Robertshaw, under which she would plead guilty to driving while impaired as a subsequent offender, and the State would dismiss the remaining charges. That arrang emen t would likely resu lt in jail tim e for M s. Rob ertshaw . Kosko then located Robertsh aw in the lo bby and told h er of the Sta te s offer. T his was the f irst meeting th ey had. They ha d not prev iously discussed the prospe ct of jail time. Ms. Robertshaw was upset at the prospect, and she waffled on whether she -4- wanted to serve the time on consecutive days or over weekends. Ultimately, she was sentenced to ten days in jail, to be served over five weekends. Upon th ese finding s, Judge D ebelius con cluded tha t Ficker had shown a comp lete absence of thoroughness and preparation in his representation of Ms. Robertshaw, which amounte d to a violation of MR PC 1.1 (C ompeten ce). The jud ge found as well that, in failing to properly examine the discovery materials, which would have alerted him to the two prior convictions, and failing to prepare Robertshaw and communicate viable options to her in advance of trial, Ficker violated MRPC 1.3 (Diligence) and 1.4 (Communication with client). Judge Debelius noted that there was a complete absence of commu nication b etween F icker and R obertshaw between April 20 a nd June 8 , despite her numerous attempts to contact him. Finally, the judge concluded that Ficker had violated M RPC 5 .1 by failing to h ave in place a system wh ereby cases w ere imme diately assigned to a particular attorney within his office when the cases first came in, and instead , allowin g particu lar attorn eys to assig n them selves c ases tw o wee ks prior to trial. . . . That practice, the judge added, fostered an environment where rules regarding diligent representation and communication with clients were almost inherently violated and was espe cially egregious in light of the fact that, as a condition to F icker s reinstatement in 1998, this Court required that he ensure that cases are assigned in a reason able an d timely m anner to allow th e attorne y assigne d to do a dequa te prepa ration . . . . -5- Ms. Pa ulk Ms. Paulk was charged with stalking, telephone misuse, and harassment. On March 29, 2005, she signed a retainer agreement to have Ficker represent her with respect to those charges. The agreement called for a fee of $599, but no payment was made at that time. Paulk made an initial payment of $200 on June 18, and two days later, Ficker entered his a ppearanc e. Trial of the case had in itially been set in the D istrict Court in Hyattsville, Prince George s County, for May 18, but, at the State s request, it had been postpone d to June 3 0. On M ay 6, the State so ught and r eceived an other postp onemen t, but, because, at the time, no appearance had been entered for the defendant, the case remain ed on th e dock et for Ju ne 30, in order to advise Ms. P aulk of her righ t to coun sel. On June 28, Ms. Paulk paid the balance of the fee. Ficker had been on notice of the June 30 trial date and believed that would be the trial date. Nonetheless, neither he nor any associate from his office appeared on that day when Ms. Paulk s case was called. When Ms. Paulk, who was present, realized that Ficker was not there, she contacted him on his cell phone and was told that there must have been a misunderstanding as her case had not been entered on the firm s trial calend ar. She was ad vised to seek a p ostpon emen t, which appare ntly was g ranted. Ficker continued to represent her, and, in January, 2006, the case was nol prossed. The judge presiding on June 30 complained to Bar Counsel about Ficker s non-appearance. On these facts, Judge Debelius found a violation of MRPC 1.3 (Diligence) and -6- 8.4(d) (Conduct prejudicial to the administration of Justice), but not 5.3 (Supervision of non-lawyer assistants). With respect to M RPC 1.3, the judg e concluded that Fick er s lack of awareness of Paulk s June 30th court date d ue to the da te not appe aring on h is firm s trial calendar, despite his two m eetings with Paulk w ithin two weeks o f her court date and despite his listing the June 30th date on his L ine of Ap pearance supports this court s finding that [Ficker] represented Paulk in a non-diligent manner. The MRPC 8.4(d) violation was based on a statement we made in Attorney Griev. Comm. v. Ficker, supra, 319 Md. at 315 , 572 A.2d at 506 , that [if] being later for a scheduled court appearance interferes with the administration of justice, it is obvious that being altogether absent from a schedu led trial d oes so a s well. Mr. Pon to Mr. Pon to, a Canad ian citizen w ho lives in E dmonto n, Alberta, w as arrested in Baltimore County on January 25, 2005, and charged with driving under the influence of alcoho l. Trial w as sche duled in District C ourt in T owso n for F ebruar y 22, 200 5. Responding to a mailed solicitation from Ficker, Ponto contacted Ficker on February 14 about possible representation and informed him that he (Ponto) would be unable to attend court in M aryland on F ebruary 22. T here is som e dispute w hether Fick er assured P onto that he would have no difficulty obtaining a continuance or simply said that he would ask for one. It is cle ar, howev er, that neither F icker nor an y associate in his o ffice wo uld -7- have been available to appear in court on February 22. On February 16, Ponto retained Ficker by making a credit card payment in the amount of $799, and, that same day, Ficker forwarded by Federal Express a line of appearance and a motion for continuance to the clerk of the District Court in Towson. The next day, February 17, Ficker was advised by the clerk that the motion for continuance had been denied. Ficker immediately sent an e-mail to Ponto informing him of the denial and advising that Ponto had to be in court on the 22nd or face the prospect that a warrant would be issued for his arrest. Ficker also asked one of his former associates, Jason Kobin, who then practiced in Baltimore County, to go to court on the 22nd and seek reconsideration of the ord er denying the requested con tinuance. An assoc iate of Mr. Kobin did appear and make the request, but it was denied, and a warrant was issued for Ponto. In July, 2005, Ponto retained other counsel. The warrant eventually was quashed, Mr. Ponto was found guilty of a related offense, and he was fined and placed on probation. Judge Debelius noted that, when Ficker was first contacted on February 14, and when he accepted the fee and entered his appearance on February 16, he knew that neither he nor any of his associates were available to appear on February 22. The judge rejected Ficker s excuse that he thought that other attorneys, such as Mr. Kobin, with whom he had no association, might be able to appear: [Ficker] was not associated with any of these attorne ys, nor did Pon to hire any of th ese attorneys to re present him , nor did -8- [Ficke r] notify P onto th at one o f these a ttorneys w ould be represe nting h is interes ts. Ficker stated that he later learned that his motion for continuance was denied because he had failed to attach to it documents that would verify that he had conflicting court appearances, which the judges of the District Court in Towson apparently require.3 Judge Debelius observed that Ficker had failed to mention in his motion for continuance 3 We nee d not cons ider here w hether such a generic re quiremen t, if it exists, wou ld constitute an impermissible local rule. The rules governing priorities when conflicts exist in trial court assignments have, since 1978, been set forth in an Administrative Order of the Chief Judge of the Court of Appeals. With some exceptions not relevant here, the general rule is that, where a conflict exists, priority is governed by when the conflicting assignm ents w ere ma de, i.e., if on March 1, Case A is set for trial at 10:00 on May 1 and on M arch 3, C ase B is set for tri al at 10:0 0 on M ay 1, Cas e A w ill have p riority. Paragraph 2.b. of the c urrent (1995) Ad ministrative Order expressly wa rns that [i]f counsel accepts employment in a case in which a date or time for argument, hearing, or trial has already been set after counsel has been notified of a conflicting assignment for the sam e date o r time, co unsel sh ould no t expec t to be gr anted a continu ance. Under th is construct, it is no t at all imperm issible for a jud ge, when asked to postpone a case alread y set for hearing because c ounsel ha s a conflictin g court date , to require some evidence as to when the conflicting court date was established and when counsel en tered his or h er appeara nce in the ca se at hand, f or if (1) the co nflicting date was not established before the date on which a hearing in the case at hand was scheduled. and (2) co unsel entere d his appe arance in th e case at ha nd on or a fter the hear ing date in that case w as established and thus w ith know ledge of th e conflict, the request sho uld ordinarily be de nied. Ficke r knew w hen he en tered his app earance in the Ponto case that, because o f existing co nflicts, neither h e nor anyon e from his office w ould be ab le to attend trial on February 22nd . He is charged with knowing that, unless he could satisfy the judge in Baltimore County that the February 22nd trial date in Ponto s case would not take precedence under the priority rules established by the Chief Judge, his motion for continuance would likely be denied. Although Ficker claimed to be unaware that the judges in Baltimore County require that the motion for continuance contain some documentation, there is no evidence in this record that (1) the conflicting dates alleged by Ficker were established before the February 22nd trial date was set in the Ponto case, or (2) even if they were, Ficker did anything to advise the judge in Baltimore County of that fact. -9- his client s bu siness obliga tions in We stern Can ada that w ould rend er him una ble to appear on February 22. The judge also noted that the entire $799 received by Ficker had been placed in the firm s operating account, notwithstanding Ficker s knowledge that he had not yet earned that fee. On these facts, Judge Debelius found that Ficker had violated MRPC 1.15(a) by not placing the unearn ed $799 fee in a sep arate escrow account, an d that, by entering his appearance to represent Ponto, knowing that he would be unable to do so on February 22, Ficker violated MRPC 8.4(d) (Conduct prejudicial to administration of Justice). He was not persua ded that Fic ker had v iolated M RPC 1 .1 by failing to fa miliarize him self with the requirement imposed in the District Court in Baltimore County that motions for continuan ce based o n a lawyer s c onflict con tain docum entation of the conflict. Bar Counsel filed an exception challenging Judge Debelius s failure to find a violation of MRPC 1.1 in the Ponto case. Ficker has taken exception to most of Judge Debelius s rulings: (1) the violation of MRPC 8.4(d) in the Ponto case; (2) the violations of MRPC 1.3 and 8.4(d) in the Paulk case, and (3) the violation of Rules 1.1 , 1.3 , and 5.1, in the Robertshaw case. He concedes violation of Rule 1.4 in the Robertshaw case but argues that he has since instituted corrective measures. We shall overrule all of the exceptions. The factual findings by Judge Debelius are all supported by substantial competent evidence, and we find no error of law in any of them. As we obse rved initially, this is the f ifth time that F icker has ru n afoul of his -10- obligation to manage his office in a proper m anner. He was wa rned twice by this Court, in 1990 and in 1998, and, despite his claimed improvements, seems not to have learned enough from those warnings. As the result of his cavalier attention to proper office management (1) one client (Robertshaw), facing incarceration, was virtually abandoned until the eve of trial and then w as represented by an associate w ho had not read the entire file, who was unaware that his client had two prior convictions, and who first presented the available options to her in the lobby of the courthouse on the day of trial, (2) another client (Paulk), facing criminal charges that could have resulted in incarceration, was abandoned on what she assumed would be a trial date and which, only by fortuitous circumstan ce unkno wn to he r or Ficker, h ad been lim ited to an ad vice of righ ts proceeding, and (3) a third client (Ponto) ended up having an arrest warrant issued against him. We see in these violations an inexcusable lack of concern on Ficker s part for the welfare of his clients, an un willingness, after four w arnings, to make the ne cessary improvem ents to his of fice man agemen t. Accordin gly, we believe that the app ropriate sanction is an indefinite suspension from the practice of law, with the right to reapply for admission no earlier tha n one year fro m the eff ective date o f the suspe nsion. Purs uant to Md. Rule 16-760(a), to allow ... a reasonable opportunity to comply, the suspension shall commence 30 days after the filing of this Opinion, except that Ficker shall accept no new c lients an d unde rtake no new w ork fo r existing clients a s of the date of this Ord er. -11- Although we are not inclined, at this point, to set other conditions on an application for reinstatement that cannot be filed for at least a year, we suggest that, should Ficker seek reinstatement, he be prepared to demonstrate that he will have in place specific and reliable systems and procedures necessary to ensure that the problems that have plagued his practice for the past seventee n years do not recur. IT IS SO ORDERED. RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COST S OF ALL TRANSCR IPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST ROBIN K. A. FICKER; SUSPENSION SHALL COMMENCE 30 DAYS AFTER THE FILING OF THIS OPINION. -12- IN THE COURT OF APPEALS OF MARYLAND AG No. 26 September Term 2006 Attorney Grievance Commission of Maryland v. Robin K. A. Ficker Raker Cathell Harrell Greene Eldridge, John C. (Retired, specially assigned) Wilner, Alan M. (Retired, specially assigned) Bloom, Theodore G. (Retired, specially assigned), JJ. Concurring and Dissenting Opinion by Cathell, J. Filed: June 7, 2007 I concur with the findings of the majority. I dissent, however, from the imposition of the sanction imposed by the majority, i.e., an indefinite suspension with the right to reapply after one year. As the majority succinctly points out, respondent has been sanctioned previously for similar negligence, incompetence, and lack of diligence on four separate occasions. In the present case, arising itself out of three different complaints, the hearing judge found, and the majority concurs, that he exhibited incompetence, lack of diligence, and failure to communicate with his client in the Robertshaw matter; lack of diligence and conduct prejudicial to the administration of justice in the Paulk matter; and that respondent had failed to place an unearned fee in a separate escrow account, had committed conduct prejudicial to the administration of justice in the Ponto case. If disbarment is not warranted in this case for these types of issues, with a respondent with this history, it will never be warranted. If it is never going to be warranted in these types of cases, we should modify the rules to say so. I would disbar.
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