Attorney Grievance v. Somerville

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 13 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. SALLY L. SOMERVILLE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Eldridge, John C., (retired, specially assigned) JJ. Opinion by Bell, C.J. File: February 17, 2004 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel filed, pursuant to Maryland Rule 16-7511 of the Maryland Rules of Proced ure, a Petition For Disciplinary Or Remedial Action, against Sally L. Som erville, the respo ndent, 1 Rule 16-7 51 of the M aryland Rule s of Proce dure prov ides, as releva nt: (a) Commencement of Disciplinary or Remedial Action. Upon approval of the Commission, Bar Counsel shall file a Petition for Disciplinary or Reme dial Ac tion in th e Cou rt of A ppeals . Upon the completion of an investigation by Bar Counsel, unless there is a recommendation pursuant to Rule 16-735 (dismissal of the complaint or termination of the proceeding w ithout discipline), Rule 16-736 (C onditional Diversion A greement), 16-737(reprimand) or Rules 16-771, 16-773, or 16-774 (immediate filing of a Petition for Disciplinary or R emedial A ction), Rule 1 6-734 (d) re quires that B ar Coun sel to file w ith the Commission a Statement of Charges with an election for peer review in accordance with Rule 16-741." Maryland Rule 16-741 governs the filing of statements of charges. It provides: (a) Filing of Statement of Charges. (1) Upo n comple tion of an in vestigation, B ar Coun sel shall file with the Commission a Statement of Charges if Bar Counse l determines that: (A) the attorney either engaged in conduct constituting p rofessiona l miscondu ct or is incapacitated; (B) the professional misconduct or the incapacity doe s not warra nt an imm ediate Petition for Disciplinary or Remedial Action; (C) a Co nditional D iversion A greemen t is either not appropriate under the circumstances or the parties were unable to agree on one; and (D) a reprimand is either not appropriate under the circumstances or (i) one was offered and rejected by the attorney, or (ii) a proposed reprimand was disapproved by the Commission and Bar Counsel was directed to file a Statem ent of C harges . in which it was charged that the respondent violated Rules 1.1, Competence,2 1.3, Diligence,3 2 Rule 1 .1 requi res a law yer to pro vide co mpete nt repre sentatio n to a clie nt.. Competent representation requires the legal knowledge, skill, thoroughness and prepar ation rea sonab ly necessa ry for the r eprese ntation. 3 Pursuant to Rule 1.3, [a] lawyer shall act with reasonable diligence and promp tness in r eprese nting a c lient. 2 1.4, Communication,4 1.5, Fees,5 8.1, Bar Admission and Disciplinary Matters,6 and 8.4, 4 Rule 1.4 provides: (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. (b) A law yer shall explain a matter to the extent reaso nably necessa ry to permit th e client to make inform ed dec isions re gardin g the rep resenta tion. 5 Pertinent to this case is Rule 1.5 (a). It provides: (a) A law yer's fee shall be re asonable. T he factors to be consid ered 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 lega l serv ice p rope rly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; (3) the fee customarily charged in the 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 natu re and leng th of the pro fessional rela tionship w ith the client; (7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and (8) w hether th e fee is f ixed or conting ent. 6 Rule 8.1 provides: An ap plicant for ad mission or re instatemen t to the bar, or a la wyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disc lose a fact n ecessary to corr ect a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for 3 Miscon duct, 7 of the Marylan d Rules o f Professio nal Cond uct, as adopted by Maryland R ule 16-812. Bar Counsel also alleged that the respondent violated Maryland Code (1989, 1995 Replacement Volume) § 10-3068 of the Business and Occupation Article. The alleged violations were committed during the c ourse of th e respond ent s hand ling of the e state of the complainant s grandmother and, it was alleged, involved, among other defaults, misapp ropriatio n of es tate fun ds. We referred the case to the Honorable Stephen M. Waldron, of the Circuit Court for Harford County, for hearing . See 16-757. The respondent, although served with process, did not file an answer or appear for the hearing. At the hearing, the hearing court received from the petitioners four exhibits, consisting of affidavits and documents. Following the info rmation from an ad miss ions or disciplinar y auth ority, except that this Rule does not require disclosure of inform ation oth erwise protecte d by Rul e 1.6. 7 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: * * * * (b) c omm it a cr imin al act that refle cts adversely o n the lawyer s h onesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice . 8 Maryland Code (1989, 1995 Replacement Volume) § 10-306 of the Business and Occupation Article provides: A lawyer may not use trust money for any purpose other than the purpose for which the trust money is entrusted to the lawyer. 4 hearing, it made findings of fact, see 16-757 (c),9 and drew conclusions of law, as follows: Melva Miller, a resident of New York, retained Respondent in March 1999 to represent her in connection with her deceased grandmother's estate. Respondent filed a Petition to Appo int Persona l Represen tative on July 8, 1999, and Ms. Miller was appointed Personal Representative on August 26, 1999. Respondent failed to file an inventory, which was due on November 24, 1999. She did not file a first administration account, which was due on May 22, 2000. On September 20, 20 00, Ms. Miller's lawyer in Ne w York State wro te to Respondent about her failure to file the inventory and account. Ms. Miller and her attorney made nu merous a ttempts to contact R esponde nt, but she did not respond. M s. Miller w as able to reach Respondent by telephone in August 2002. Ms. Miller told her that a Delinquent Notice had been issued by the Register of Wills fo r failure to file the account. Respondent acknowledged she had neglected th e matter, but promised to conclude the estate administration as soon as possible. Respondent took no action to file the inventory and account. Ms. Miller made repeated attempts to reach Respondent by telephone in December 2002, without success. Ms. Miller then retained Robert L. Pierson, Esquire, to replace Respondent as counsel. Mr. Pierson wrote to Respondent on January 2 and February 20, 2003, requesting information about the estate. Respondent did not respond. Mr. Pierson filed a pe tition to compel Respo ndent's testimony before 9 Maryland Rule 16-757 (c) provides: (c) Findin gs and C onclusion s. The judg e shall prepa re and file o r dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 da ys after the con clusion of th e hearing. T he clerk sha ll mail a copy of t he statem ent to ea ch party. 5 the Orphans Court for Harford County. Respondent appeared in the Orphans Court on June 6, 2003, and Mr. Pierson was able to obtain documents and information from her. Based on that information, Mr. Pierson concluded that Respondent owe d the estate $4 ,965 .85. H e wr ote to Respondent on J uly 7, 2003, to try to resolve that claim. He left telep hone me ssages for her on July 17 and 18, 2003, but has received no response to the letter or telephone messages. Mr. Pierson's review of the estate checking account records and h is interview of Respondent uncovered several improprieties in Respondent's handling of estate funds. On September 14, 1999, Respondent drew a check for $1,000.00 from the e state accou nt. Ms. Miller never authorized her to take those funds, and Respondent had never filed a petition for approval of counsel fees. Respondent had no authority to take those funds from the estate. Respondent also paid two individuals, Barbara Giles and Elaine Morgan, $500.00 each from estate funds without any apparent justification. Respondent also overpaid th e legatees, res ulting in the es tate having insufficient funds to pay taxes and expenses. The estate cannot be closed because of that d efic ienc y. After Ms. Miller submitted a complaint to the Attorney Grievance Commission, Office of Bar Counsel wrote to Respondent on October 8, November 4 and December 9, 2002, requesting that she respond to Ms. Miller's complain t. Respond ent did not a nswer an y of those letters. Commission Investigator William M. Ramsey then made sev eral attempts to interview Respon dent. Resp ondent ne ver subm itted to an interview. Respondent evaded service of the Statement of Charges when Mr. Ramsey attempted to serve her. Respondent failed to attend the Peer Review meeting regard ing M s. Mille r's comp laint. Respondent acted incompetently in her representation of Ms. Miller in violation of Rule 1.1 of the Maryland Rules of Professional Conduct by not filing an invento ry and an adm inistration account and by improperly disbursing estate funds. Her failure to file the inventory and account and her failure to respond to the Delinq uent No tice and other inquiries by the Register of Wills and Orphans' Court w as a lack of diligence in v iolation of Rule 1.3 of the Maryland R ules of Pro fessional C onduct. Respondent violated Rule 1.4 of the Maryland Rules of Professional Conduct by failing to return telephone calls from Ms. Miller an d her atto rneys 6 and by failing to keep her informed of the status of the estate administration. Respondent took $1,000.00 from the estate checking account on September 14, 1999. Ms. Miller never authorized Respondent to take those funds and Respondent h ad never f iled a petition to authorize h er to be paid counsel fees from the estate. By taking those funds without permission. Respondent collected an unreasonable fee in violation of Rule 1.5(a) of the Maryland Rules of Professional Condu ct. Respon dent's unau thorized tak ing of estate funds was a criminal act in violation of Rule 8.4(b) and § 10-306 of the Business Occupations and Professions Article, Annotated Code of Maryland. Respondent's action w as disho nest, and in violation of Rule 8.4(c) of the Maryland R ules of Pro fessional C onduct. Re spon dent's failure to respond to letters from Bar Counse l, her refusal to meet with an investigator for the Attorney Grievance Commission and her failure to attend the Peer Review meeting in this matter were knowing failures to respond to requests fo r information from a disciplinary authority in violation of Rule 8 .1(b) of the M aryland Rule s of Profe ssional Co nduct. [10] By her failure to take substantial action to administer the estate, her misuse of estate fu nds to make unauthorized and excessive expenditures, and by taking estate funds without authorization. Respon dent enga ged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d) of the Marylan d Rule s of Pro fession al Con duct. The petitioner took no exceptions to the findings and con clusions of the hearing c ourt and, as we have seen, the respondent did not participate in these proceedings. The petitioner did, howe ver, file Petitioner s Recommendation for Sanction, in which it urged the responde nt s disbarm ent, noting th at the respon dent neglected the estate matter, failed to file an inventory and account, ignored 10 Because there are no exceptions taken to the conclusions of law and the respondent has not participated, we expressly note that we do not necessarily accept that the failure to attend a peer review hearing is a violation of Rule 8.1, reflecting a knowing failure to cooperate. 7 notices from the R egister of W ills and inquirie s from he r client, made improper and excessive disbursements from the estate account and took $1000.00 without a uthorization. Respondent also failed to respond to the Petition er regar ding th is matter . The penultimate observation acknowledges that the respondent misappropriated, appropriated to her own use funds of othe rs entrus ted to he r, see Bar Ass n v. Ma rshall, 269 Md. 510, 520, 307 A.2d 677, 682 (1973) (obtaining fee from a workers' compensation client before approval by the Commission and keeping it and the fee subsequently approved by the Commission); Attorney Grievance Comm n v. McBurney, 283 Md. 628, 631, 392 A.2d 81, 82 (1978) (after denying their receipt, depositing insurance settlement funds belonging to a client in office rather than his escrow account), estate funds. Th e hearing court s characterization was more emphatic and direct: Respondent's unauthorized taking of estate funds was a crim inal act in violation of Rule 8.4(b) and § 10-306 of the Business Occupations and Professions Article, Annotated Code of Maryland. Respondent's action was dishonest, and in v iolation of Ru le 8.4(c) of the M aryland R ules of Profe ssional C onduc t. We have often repeated what is in this State well settled with regard to the sanction for misappropriation of entrusted funds, that it is an act inf ecte d with de ceit a nd disho nesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment. Attorney Grievance C omm n v. Sp ery, 371 Md. 560, 568, 810 A. 2d 487, 491-92 (2002 ). See Attorney G rievance C ommissio n v. Smith , 376 Md. 202, 237, 829 A. 2d 567, 588 (20 03); Attorney Grievance Comm n v. Sullivan, 369 Md. 650, 655-56, 801 A. 2d 1077, 1080 (20 02); Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 410, 8 773 A. 2 d 463, 48 3 (2001); Marsha ll, 269 M d. at 520 , 307 A .2d at 68 2. There are no compelling extenuating circumstan ces in this case or, at least, we have not been informed o f any. Acco rdingly, we ag ree with the petitioner, the a ppropriate sanctio n is disb armen t. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY COMMISS ION AGAINST SOM ERV ILLE . 9 G RI E V A N C E SALLY L.

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