Attorney Grievance v. MacDougall
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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 59 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. FRANCIS MACDOUGALL Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Opinion by Bell, C.J. File: December 13, 2004 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counse l, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial Action against Francis MacDougall, the respondent. The petition charged that the respondent violated Rules 1.3, Diligence,2 1.4, Communication,3 1.5, Fees,4 1.16, Declining or 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approva l of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petitio n for D isciplina ry or Rem edial A ction in t he Co urt of A ppeals . See Rule 16-743, which specifically provides that [t]he Commission may (1) approve the filing of a Pe tition fo r Discip linary or R emed ial Actio n. 2 Rule 1.3 re quires [a] la wyer [to] act w ith reasonab le diligence a nd prom ptness in represe nting a c lient. 3 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. 4 Rule 1.5 p rovides, as re levant: (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 legal service prop erly; (2) the likelihood, if apparent to the client, that the acceptance of the particular employment w ill preclude other employmen t 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; Terminating Representation,5 3.4, Fairness to Oppo sing Party and Counse l,6 8.1, Bar Admission and Disciplinary Matters,7 and 8.4, M isconduc t,8 of the M aryland Rules of (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. 5 Rule 1.16 provides, as relevant: * * * * (d) Upon termination of representation, a lawyer shall take steps to the extent reasonab ly practicable to protect a client's interests, such as giving reasonab le notice to the client, allowing time for employmen t of other co unsel, surrendering papers and property to which the client is entitled and refunding any advanc e payment o f fee that ha s not been earned. T he lawyer m ay retain papers relating to the clie nt to the e xtent pe rmitted b y other law . 6 Pursua nt to Ru le 3.4, A law yer shall not: * * * * (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists. 7 Rule 8.1 p rovides, as re levant: An ap plicant for ad mission or re instatemen t to the bar or a lawyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: * * * * (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 info rmation from an ad miss ions or disciplinar y auth ority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 8 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: * * * * (c) engage in conduct involving dishonesty, fraud, deceit or 2 Professional Conduct, as adopted by Maryland Rule 16-812.9 We referred the case, pursu ant to Rule s 16-752 (a),10 to the Honorable Thomas J. Bollinger, Sr., of the Circ uit C ourt for B altim ore C ounty, for hearing pursuant to Rule 16-757 (c).11 Following a hearing, at which the respondent appeared and participated, the hearing court found, on the evidence presented at that time, as well as the admissions made by the Respondent in his response to the Petition for Disciplinary Action, facts by the clear and convincing standard and drew conclusions of law, as follows. misrepresentation; (d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice . * * * * 9 The petition er also charg ed that the res ponden t assist[ed] a p erson wh o is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law , in viola tion of R ule 5.5 ( b), but w ithdrew it during the evid entiary he aring. 10 Rule 16-752 (a) provides: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. 11 Maryland Rule 16-757 (c) provides: (c) Findin gs and co nclusions. T he judge s hall prepare and file or d ictate 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 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 3 The respondent, a sole practitioner, was, pursuant to wills he drafted for T heodore and Naomi Egorin, one of three co-personal representatives of their estates, the other two being the surviving child and heir of the decedents, Samuel Mervis Egorin, and Donn Weinberg, Esquire. He was also attorney for each estate, having been retained as such by the personal representatives. Each will, after making specific bequests of personal property to Samuel Egorin and, in the case of Mrs. Egorin, a small cash bequest to her housekeep er, bequeathed the residue of the estate to a testamentary trust. The co-personal representatives of the estates were appointed co-trustees of those tru sts. The wills, the estates for which had an estimated net value of $ 150, 000, were admitted to probate in 1999. The respondent s services for the first two years or so after the estates were opened were generally acceptable to the co-pers onal representatives. They apparently communicated with responde nt on a fairly freq uent basis, to review the estate matters , authorize p ayments of estate debts, re view the e state security portfolio and co-sign those estate ch ecks necessary for the payment of debts. Although, during that period, [i]t was not uncommon ... for [the responde nt] not to answe r his p hone, h e gen erall y returned calls with in tw enty-four (24) hours and he was prompt in cooperating to arrange meetings of the co-personal representatives, usually held at co-personal representative Weinberg s office. The respondent was paid, with the approval of the Orphans Court, counsel fees of $ 10,000, $7500 from the Naomi Egorin estate and $2500 from the Theodore Egorin estate. 4 These fees were in lieu of commissions payable to him as a co-personal representative.12 The parties agree that the Respon dent com ported him self prope rly insofar as his taking of a fee fo r his serv ices wa s done with th e appro val of th e Orph ans C ourt. Beginning in the secon d half of 2 002, the resp ondent ce ased return ing calls from his co-personal representatives in a timely manner and his relationship with them changed signific antly. Indeed, as his response to the Petition fo r Disciplinary A ction and h is testimony at the hearing admit, [h]e failed to return calls from either or both of the copersonal representatives and failed to answe r questions re lating to his serv ices to the esta te and his actions as re quired as a c o-persona l representativ e. Samu el Egorin te stified consiste ntly, that the respondent had not communicated with him directly since July 2002, when he delivered to him an insurance policy on which a claim had to be made. While the respondent prepared formal accountings with respect to the estates and filed them with the Register, he failed to give any informal accountin g as to the as sets of the es tates subject to distribu tion. Moreover, the efforts of the co-personal representatives to meet with the respondent were frustrated. Another example of the non-communication between the respondent and his co-personal representatives w as his failure to explain h is decision n ot to distribute trust funds to Samuel Egorin to defray expenses incurred by his youngest daughter for hospitalization and treatment. Although aware of the request for distribution for that 12 The respondent filed, in February 2001, Petitions for Counsel Fee and Counsel Fee in Lieu of C ommissions in both estates. These petitions were a pproved by orders issued b y the Orp hans C ourt. 5 purpose, the respon dent did no t inform the beneficiary or the other co -personal representative of his decision to refuse the distribution in favor of retaining the money in anticipation of the need to pay future educational expenses, much less explain it to them. The resp ondent w as inform ed on tw o occasio ns by Bar Counsel, by letters dated December 10, 2002 and January 7, 2003, respectively, that a complaint had been filed against him and, on each occasion, Bar Counsel asked that the respondent respond. In the January letter, which enclosed the December letter, the respondent was adv ised that failure to respond may be a separate and d istinct violation of the Rules of P rofessional Conduct for violatio n of R ule 8.1. Although the resp ondent responde d to Bar Coun sel s letters, he did not timely respond to either letter, w ithin the fifteen days allowed in the December letter or within the ten days prescribed by the January letter. In his response, by letter dated February 13, 2003, the respondent acknowledged receipt of Bar Counsel s correspondence and, without offering any explanation or excuse, conceded his unresponsiveness. With regard to the allegation that insurance proceeds owed to the Estate of Theodore Egorin had been abandoned to the State, the respondent, while admitting that the application for proceeds had not be en filed afte r death, ma intained that the proceeds had not been abandoned, claim for them having been made to Prudential Financial, where the funds had been maintained in the Aba ndoned Property Office of Prudential Insurance Company, and that the proceeds were expected within two to three weeks. The respondent met with Bar Counsel s investig ator. Although admitting to heart problems throughout his life, after 6 reviewing his medical history, the respondent acknowledged that his 1996 heart operation was successful and that he sees his cardiologist only once every three years and has no other health prob lems . The resp ondent a lso d oes n ot su ffer from alco hol, p sychological or physiolo gical pro blems. The respondent informed the petitioner s investigator that he had been requ ested, in writing, by both regular and certified m ail, through his co-personal repres entatives, to turn over all documents relating to the estates to a substitute attorney and that he had refused to do so. The res ponden t indicated tha t he wou ld resign as c ounsel on ly after the estates were closed. He maintained that he had a right to so proceed, because the decision of the copersonal representatives with regard to the firing of counsel must be unanimous and that, as a personal representative, he was not prepared to vote with the other two. Although it was an option, as the respondent pointed ou t, no attempt h ad been m ade to that point to obtain the respondent s removal through court action. At the time of the hearing, the respondent was not a trustee under the trusts set up under the Egorin wills and the Fourth and Final Accountings in the Estates of N aomi Eg orin and Theodore Egorin had been filed. The hearing court concluded that the respon dent violated four of the seven rule violations charged: Rule 1.3, Rule 1.4 (b), 13 Rule 8.1 (b) and 8.4 (d ). The hearing court 13 The petitioner charged the respondent with a violation of Rule 1.4 (a), as well as Rule 1.4 (b). The he aring court made n o finding as to the form er. 7 characterized the violations it found as technical, noting that it finds that the Respondent has not exhibited any dishonest conduct or any interference with the administration of justice. On the other hand, the alleged violation of Rule 3.4, it found, had been abandoned during the disciplinary proceedings and the alleged violations of Rules 1.5 and 1.16 had not been p roven b y clear and convin cing ev idence . As to Rule 1.5, the hearing court explained: The amount of the fee that was requested and received by the Respondent was approved by the Orphans C ourt of Baltimore County after proper application to that court. This court finds that any inappropriateness of that fee should rest with the O rpha ns c ourt of B altim ore C ounty. The Court further finds that the fee approved and received is less than the maximum statutory amount that could have been received by the Respondent had he completed the finalization of the e state[s]. The chancellor s reasoning as to the asserted violation of Rule 1.16 is related: any fee to be retained w as under th e supervision and jurisdiction of the Orphans C ourt of Baltimore Cou nty. In addition, the court finds that the Respondent complied with the Order of the Orph ans C ourt an d surren dered th e files in this mat ter whe n so ord ered. As indicate d, the resp onden t does n ot dispu te that he violated Rules 8 .1 (b) an d 8.4 (d), and, in fact, admits that he did. A s to Rule 1.3, the hearing co urt concluded that there was a techn ical viola tion, the respondent having failed diligently to pursue the legal matters with w hich he was en trusted. Rule 1.4 was violated, the hearing court determined, by the respondent s failure to adequately communicate to his co-trustees regarding the represe ntation o f the est ate. 8 The petitioner excepts to the hearing court s failure to find violations of Rules 1.4 (a), 1.5 (a) and 1.16 (d). It maintains, as to the Rule 1.4 (a) charge, that the same evidence that justified the finding of a subsection (b) violation also supported violation of subsection (a). We agree. The hearing court found not only that the respondent had failed to return calls from his co-personal representatives and answer questions relating to his services to the estates, but that the res ponden t admitted th ose failures. The petitioner s exception to the failure to find a violation of Rule 1.4 (a) is sustained. We reach a different conclusion with respect to the Rule 1.5 (a) and 1.16 (d) findings. Maryland Cod e (1974, 2001 Replacement Volume) § 7-602 of the Estates and Trusts Article, as relevant, provides: (a) An attorney is entitled to reasonable compensation for legal services rendered by him to the estate and/or the personal representative. (b) Upon th e filing of a p etition in reaso nable deta il by the personal representative or the attorney, the court may allow a counsel fee to an attorney employed by the personal representative for legal services. The compensation shall be fair and reasonable in the light of all the circumstances to be consid ered in f ixing th e fee o f an atto rney. In this case , the resp onden t sough t, and rec eived, Orphans Court approval for the counsel fees he took. Although it could have been, Wright v. N uttle, 298 A.2d 389, 390, 267 Md. 69 8, 701 (19 73) (appe al will normally lie from an order o f the orphans' court granting or denying allowance of a fee to counsel for a personal representative), that court s allowance of the cou nsel fees w as neither appealed, nor, except in these proceedings, 9 challenged. It is well settled that an award of counsel fees for a personal representativ e will not be disturbed in the absence of proof of abuse of discretion. Wolfe v. Turner, 299 A.2d 106, 109, 267 M d. 646, 653 (1973 ). Here, the exercise of its discretion by the Orphans Court has not been challenged and, thus, has not been, and could not be, on this record, shown to have been abused. The petitioner s Rule 1.16 (d) charge proceeds on the premise that the respondent wrongf ully and repeatedly failed to turn ove r docum ents of the e states and trus ts to his copersonal representatives and co -trustees , and su ccesso r couns el, Stuar t Rom bro, Es quire. The respondent s response, as it has always been, is that he had not been, and, indeed, could not have been, terminated as the attorney for the estates until there was an order of the Orphans Court to that effect. He argues that he could not have been terminated without his consent, the wills requiring unanimity, and he did not agree with the other two co-personal representatives that he should be removed. In suppor t of his positio n, the respon dent points out: By such unanimous action the three co-personal representatives retained the services of Respondent to act as attorney for the estate[s]. All three copersonal representatives signed each of the documents filed with the Register of Wills. All three personal representatives were required to sign each of the checks disbursing funds from the estate[s]. All three personal representatives had to agree to the price and terms by which the decedents residence was sold. Concluding that all three personal representatives would have to agree to fire an attorney whom they had hired, the respondent relies on Maryland Code, § 6-203 of the 10 Estates and Trusts Ar ticle. That statute provides: (a) When two or more persons are appointed co-personal representatives, the concurrence of all is required on all acts connected with the administration and distribution of the estate. (b) The provisions of subsection (a) of this section do not apply if: (1) The act involved is receiving or receipting for property due the estate; (2) All personal representatives cannot readily be con sulted in the time reasonably available for emergency action; (3) A person al representative has validly delegated to a copersonal representative his power to act; or (4) The will or a statute provides otherwise. (c) Persons dealing with a copersonal representative without knowledge that he is not the sole personal representative are as fully protected as if the person with w hom th ey dealt ha d been the sole person al repre sentativ e. The respondent acknowledges that he was obligated to turn over the estates records when the Orphan s Court dire cted his rem oval, which it did. He maintains, however, that he complied with that directive by turning over all of the files to the then duly appointed personal representatives of each of the estates. More particularly, he explains: Before the date of the Orphans Court hearing, no proper direction had been given to Respondent either relieving him of his position as co-personal representative or attorney for the estates. Respondent complied with the direction to turn over files within minutes of the proper direction being given. He fu lly compl ied with Rule 1 .16 (d). The hearing court agreed with the respondent. On this record, we do not believe that it erred. There is ample support for the facts on which the court s conclusion is based. 11 Attorney Grievan ce Com m n v. A shworth 381 M d. 561, 5 75, 851 A.2d 5 27, 535 (2004). See Attorney Grievance Comm n v. McCoy, 369 Md. 226, 235, 798 A.2d 1132, 1137 (2002). Attorney Grievance Comm n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Commn v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993 )). Left for determination is the appropriate sanction. The petitioner recommends an indefinite suspension with the right to apply for reinstatement to the bar after sixty (60) days. This is necess ary, it maintains, because, by not offering mitigation, an explanation or excuse for his various failures, the respondent has not demonstrated that he appreciates the seriousness of the v iolation s and, m ore imp ortant, a commitm ent to avoid ing their repetition. The petitioner is concerned more specifically that, without a requirement that the respondent apply for reinstate ment, w hich, unlike r einstatemen t following a suspens ion for a de finite period, see Maryland Ru le 16-781 (e), 14 requires the applicant to supply information 14 Maryland Rule 16-781 (e) provides: (e) Expedited Reinstatement. If the petitioner is an attorney who has been suspended for a definite period and the period has elapsed, Bar Counsel may consent to reinstatement by filing with the Clerk of the Court of Appeals a written notice that Bar Counsel is satisfied that the attorney has complied in all respects with the provisions of Rule 16-760 and with the terms and conditions of the order imposing the suspension. Upon receiving Bar Counsel's consent, the Clerk shall proceed in accordance with the applicable provisions of section (l) of this Rule. If Bar Counsel does not consent, B ar Coun sel shall respo nd to the pe tition in accord ance with section (f) of this Rule and shall state the particular grounds for withholding consent. The processing fee required by section (b) of this Rule does not apply to a petition filed under this section. 12 necessary to determine whether the criteria and factors prescribed by Maryland Rule 16-781 (g) have been m et, the Court may not b e able, in good faith, to determine whether the respondent would be able to re-enter the practice, having addressed the shortcomings revealed by this case and, thus, meet its responsibility to protect the public. For his part, the respondent asks only that we recognize that none of the actions for which he might be disciplined resulted in an y harm befa lling Sam uel E gorin, his fam ily, or the estates, and that we un derstan d the rea sons fo r the sub stantive decisio ns he m ade. He does not directly recommend a sanction. Moreover, when asked at the hearing whether he had learned the lesson of the proceedings, rather than answ er in the affirm ative, he cou ld not state that h e wo uld n ot react th e sam e wa y should another comp arable s ituation arise. He had no explanation for the failures and provided no other mitigation. The purpose of the sanction imposed on an attorney following disciplinary proceedings is to protect the public rather than to punish the attorney who engages in miscond uct, and the decision as to sanction in a particular case does, and must, depend on the facts and circumstances of that case. Attorney Griev. Com m n v. Santos, 370 Md. 77, 8889, 803 A.2d 505, 511-12 (2 002); Attorney Grievance C omm n v. Ba rneys, 370 Md. 566, 577-78, 805 A.2 d 1040, 1 046-47 (2 002); Atto rney G riev. Com m'n v. Garfield , 369 Md. 85, 98, 797 A .2d 757 , 764 (2 002). See Attorney Griev. Comm'n of Maryland v. Hayes, 367 Md. 504, 519, 789 A.2d 11 9, 129 (20 02); Attorney Griev. Comm'n of Maryland v. Jeter, 365 Md. 13 279, 290, 778 A.2d 39 0, 396 (20 01); Attorney Griev. Comm'n of Maryland v. Tolar, 357 Md. 569, 585, 745 A.2d 1045, 1053 (20 00); Attorney Griev. Comm'n v. Franz, 355 Md. 752, 761, 736 A.2d 33 9, 344 (19 99); Atto rney G riev. Com m'n v. Ober, 350 Md. 616, 631-32, 714 A.2d 856, 864 (1998); Attorney Griev. Comm'n v. Hamby, 322 Md. 606, 611, 589 A.2d 53, 56 (1991); Attorney Griev. Comm 'n v. Babbitt, 300 Md. 637, 642, 479 A.2d 1372, 1375 (19 84). There is value in having an attorney who has been sanctioned15 reflect on the conduct that promp ted the s anction and, in th at way, ga in, or at le ast be en abled to gain, an appreciation for its seriousness and resolve to prev ent or avoid its repetition. Th is is especially the case w here, as here , it is not very clear tha t the sanctioned attorney has the requisite apprec iation or resolve . Rule 16-781 (g), 16 with its prescription of detailed 15 This is the res ponden t s first sanction , for dispositio n purpose s. Contrary to his admission, in response to a question from the Bench, to having been reprimanded, prior proceedings against the respondent were dismissed with a warning by Bar Counsel. The conduct involved in those proceedings was, however, similar to that in this case. 16 Rule 16-781 (g) provides: (g) Criteria For Reinstatement. The Court of Appeals shall consider the natu re an d circum stances o f the petit ione r's original co nduct, the pet ition er's subsequent conduct and reformation, the petitioner's current character, and the petitioner's current qualifications and competence to practice law. The Court may order reinstatement if the petitioner meets each of the following criteria or presents sufficient reasons why the petitioner should nonetheless be reinstated: (1) The petitioner has complied in all respects with the provisions of Rule 16-760 and with the terms and conditions of prior disciplinary or remedial orders; (2) The p etitioner has n ot engage d or attemp ted or offe red to 14 requireme nts for a petition for reinstatement, when considered in conjunction with Rule 16781 (d), which lists some fourteen items that an applicant must supply to Bar Counsel, is an appropriate vehicle to en sure that the re quisite attention and introspection occur. The focus of the requirements is on the conduct a nd the steps that have b een, or mu st be, taken to avoid a repetitio n of the offen ding co nduct. Acc ordingly, we agree with the petitioner: the appropriate sanction is an indefin ite suspen sion, w ith the rig ht to app ly for reins tateme nt after 6 0 days. engage in the unauthorized practice of law and has not engaged in any other professional misconduct during the period of suspension, disbarment, or inactive status; (3) If the petitioner was placed on inactive status, the incapacity or infirmity (including alcohol or drug abuse) does not now exist and is not reasonably likely to recur in the future; (4) If the petitioner was disbarred or suspended, the petitioner recognizes the wrongfulness and seriousness of the professional misconduct for which discipline was imposed; (5) The petitioner has not engaged in any other professional misconduct since the imposition of discipline; (6) The petitioner currently has the requisite honesty and integrity to practice law; (7) The petitioner has kept informed about recent developments in the law and is competent to practice law; and (8) The petitioner has paid all sums previously assessed by the ord er of the Court o f App eals. 15 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 O F THE A TTOR NEY G RIE V A N CE COM MISSIO N AGAINST FRANCIS MACDOUGALL. 16
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