Attorney Grievance v. Kovacic

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG NO. 11 SEPTEMBE R TERM, 2004 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. KRISTIN E. KOV ACIC Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Opinion by Bell, C.J. Filed: October 11, 2005 The Attorney Grievance Commission of M aryland, the petition er, by Bar Co unsel, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial Action agains t Kristin E. Ko vacic, th e respo ndent. The petition charged that the respondent violated Rules 1.3, Diligence,2 1.4, Communication,3 and 8.1, Bar Admission and Disciplinary Matters,4 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. 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 Petition for Disciplinary or Remedial Action in the Court of Appeals. 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 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. We referred the case, pursuan t to Rule 16-752 (a), 5 to the Honorable Karen H. Abrams, of the Circ uit Court fo r St. Mary s C ounty, for hea ring pursua nt to Rule 16-757 (c). 6 Although she was s erved, the re sponden t did not file a response, prompting the entry of an order of defau lt, which the r esponde nt did not move to vacate. Following a hearing, at which the petitioner offered, and the hearing court accepted, two exhibits, one of which was that of the complainant, the hearing court found facts by the clear and convincing standard and drew conclusions of law, both as follows. Delores Shelby, forme rly known as Delore s Glasper, re tained M s. Kovac ic to represent her in her divorce case against Robert Glasper, Jr., case no. CA01-1189 in the Circuit Cou rt for St. M ary s C ounty, Maryland. A Judgment of Divorce was entered on August 14, 2002. Pursuant to the Judgment of Divorce, the parties were to have a backhoe 5 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. 6 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. 2 and grader appraised, and Mr. Glasper was to pa y half of th e app raise d value to Ms. She lby. The Court retained jurisdiction for purposes of approving a Qualified Domestic Relations Order, awarding $ 13, 237.11 to Ms. Shelby. Ms. Kovacic was supposed to see that the equipme nt was ap praised and that the QD RO w as submitted to the Cou rt. Ms. Kovacic did not send a copy of the Judgment of Divorce to Ms. Sh elby until September 19, 2002, over a month after the Judgment had been entered. Ms. Shelby made numerous attempts to contact Ms. Ko vacic in the ensuing months to check on the status of the case, but Ms. Kovacic failed to respond. Ms. Kovacic did not have the equipment appraised and did not submit a QDRO to the Court. Ms. Shelby wrote to Ms. Kovacic on January 9, 2003, discharging her as counsel because she felt Ms. Kovacic had abandoned her case. Ms. Shelby submitted a complaint to the Attorney Grievance Commission of Maryland, which was received by the Commission on March 4, 2003. Office of Bar Counsel wrote to Ms. Kovacic five tim es, dem anding that she respon d to M s. Shelb y s comp laint. Assistant Bar C ounse l called th e Resp onden t on fou r occas ions. Ms. Kovacic acknowledged receipt of the complaint. The Comm ission neve r received a response f rom her p rior to the Peer Review meeting held on October 2, 2003. Respondent violated R ule 1.3 of the Maryland Rules of Professional Conduct by not acting diligently in arranging for an appraisal and preparing a QDRO. Respondent failed to take care of those matters although she had five months to do so after the Judgment of 3 Divorce was entered. Respondent violated R ule 1.4 of th e Maryland Rules of Profession al Condu ct by failing to send a copy of the Judgment of divorce to her client until over a month after it was entered and by failing to respond to her client s inquiries about the status of the case. Respondent also violated Rule 8.1 (b) of the Maryland Rules of Professional Conduct by failing to respond to numerous inquiries by the Office of Bar Counsel regarding Ms. Shelby s comp laint. Neither the petitioner nor the respondent has excepted to the hearing court s findings of fact and co nclusio ns of la w. Only the petitioner filed a recommendation for sanction and appeared at the hearing. This time,7 the petitioner s recommen dation, rather than a 7 This is th e secon d time th at this ca se has b een set f or oral a rgume nt. Subsequently to the issuance of the Findings of Fact and Conclusions of Law, the petitioner and the respond ent submitted to this Court their Joint Petition For Reprimand By Consent. In that petition, the respondent acknowledged that the evidence the petitioner produced was sufficient to sustain the allegations of misconduct and asserted that she was agreeing, freely and voluntarily without coercion or duress to the reprimand sanction. Rather than impose the agreed upon sanction, the Court set the matter for hearing. The hearing was held on April 4, 2005, at the conclusion of which, considering the respon dent s repo rted medic al condition and her ex pressed w illingness to co nsent to inactive status, it was understood that the option of the respondent taking inactive status would b e explored and that the Court w ould be ap prised acco rdingly. Whe n, after sixty days, there had been no progress in that regard, Bar Counsel, by letter dated June 14, 2005, advised the Court that, [a]lthough Ms. Kovacic and [he] have spoken a few times since [April 4, 2005], he had not received a letter from her physician to confirm her medical co ndition or a s igned con sent to inactiv e status and , in fact, that M s. Kovac ic was not certain that she wanted to consent to inactive status. The respondent did not contradict these representations, although Bar Counsel s letter noted that she had been copied . There fore, the case w as sche duled o nce ag ain for o ral argu ment. 4 reprimand, is that the respondent be indefinitely suspended from the practice of law. That sanction is required, it submits, where, as here, the respondent aban doned her client s case and there has been no showing of mitigation. It contrasts this case with Attorney Grievance Comm n v. Tolar, 357 Md. 569, 745 A. 2d 1045 (2000), a case in which the respondent therein committed the same viola tions. This C ourt impos ed a reprim and in that c ase in consideration of the respondent s remorse and history of rendering assistance to the Director of the Lawyers Assistance Program of the Maryland State Bar Association. The purpose of disciplinary proceedings and the sanctions that flow from them is well settled. It is, as we have stated often, to protect the public. Attorney Grievance Com'n of Ma ryland v. Pennington 387 Md. 56 5, 601-602, 876 A .2d 642, 663-64 (2 005); Attorney Grievance Com'n of Maryland v. Kreamer, 387 Md. 503, 533-34, 876 A.2d 79, 97-98 (2005); Attorney Grievance C omm n v. Steinb erg, 385 Md. 696, 703, 870 A. 2d 603, 607 (2005); Attorney G rievance C omm'n v . Stein, 373 Md. 531, 533, 819 A.2d 372, 375 (2003 ); Attorney Grievan ce Com m'n v. Shein bein, 372 M d. 224, 2 55, 812 A.2d 981, 999 (2002); Attorney Grievance Co mm'n v. Po well, 369 Md. 462 , 474, 800 A.2d 7 82, 789 (2002); Attorney Grievance Comm'n v. Hess, 352 Md. 438, 453 , 722 A.2d 905, 913 (1999); Attorney Grievance. Comm'n v. Webster, 348 Md. 662, 678, 705 A.2 d 1135, 1 143 (199 8); Attorney Grievance Comm n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997) . It is not to punish the erring attorney. Attorney Grievance Comm'n v. Christopher, 383 Md. 624, 639, 861 A.2d 692, 701 (2004); Attorney G rievance C omm'n v . Wyatt, 323 Md. 36, 38, 591 A.2d 5 467, 468 (1991). That purpose is achieved when sanctions are imposed tha t are comme nsurate with the nature and gravity of the violations and the intent with which they were comm itted. Awuah, 346 Md. at 435, 697 A.2d at 454; Attorney Grievance Comm'n v. Glenn, 341 Md. 44 8, 483, 671 A.2d 46 3, 480 (19 96); Atto rney G rievance Com m'n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994). This is so, because s uch sanc tions prom ote general and sp ecific d eterren ce, Attorney Grievance Comm'n v. Sliffman, 330 Md. 515, 529, 625 A.2d 314, 321 (1993); Attorney Grievance Comm'n v. Berger, 326 Md. 129, 131, 604 A.2d 58 (1992) (citing Attorney Grievance Comm'n v. Owrutsky, 322 Md. 334, 355, 587 A.2d 511, 521 (1991)), protect the integrity of the legal profession, Attorney Grievance Com m'n v. Cassidy, 362 M d. 689, 6 98, 766 A.2d 632, 637 (200 1), further the public's confidence in the legal profes sion, Stein, 373 M d. at 533, 81 9 A.2d a t 375 (200 3); Powell, 369 Md. at 474, 800 A.2d at 789, and ta ke accou nt of the fa cts and circumstances of each particular case, includ ing any mitigati ng factors. See Attorney Grievance Comm'n v. Atkinson, 357 Md. 646, 656, 745 A.2d 10 86, 1092 (2000); Attorney Grievance Comm'n v. Gavin, 350 Md. 176, 197-98, 711 A.2d 193, 204 (1998). Relevant to the question of the existence of mitig ating fa ctors are , we have held, whether the respondent acted out of a selfish motive , Attorney Grievance Comm'n v. Thompson, 367 Md. 315, 330, 786 A.2d 763, 772-73 (2001); Attorney Grievance Comm'n v. Jaseb, 364 Md. 464, 481-82, 773 A.2d 516, 526 (2001); Glenn, 341 Md. at 488-89, 671 A.2d at 483, whether the attorney has remorse for the misconduct, whether the conduct is likely to be repeated and whether the attorney has 6 a prior grievance history. Attorney Grievance Comm'n v. Post, 379 Md. 60, 71, 839 A.2d 718, 724 -25 (2003 ); Wyatt, 323 Md. at 38, 591 A.2d at 468. This case is practically on all fours with Tolar, in which this Court imposed a reprimand. In that case, the respondent, as did the respondent herein, failed to complete a QDR O, failed to commu nicate with her client and did not time ly respond to Bar Counse l s inquiries,8 thus violating the same Rules, 1.3, 1.4, and 8.1 (b). The reprimand in that case was based large ly on the respo ndent s rem orse, a facto r that could have bee n, and app arently was, explored in that case, and that sanction was imposed despite prior unreported reprimands on the responding attorney s record. From the respondent s remorse, another factor, that a repeat of the miscond uct was u nlikely, admittedly no t mentione d, could have been inferred. The record in this case contains no findings of the respondent s remorse or of any other mitigating factor, nor could it. The respondent did not appear for the hearing and thus the reasons, or motive, for her inaction were not, and could not have been, explored. And the Joint Petition F or Reprim and By Co nsent doe s not provid e enlighten ment in that regard. 8 To be sure, the length of the untimely reply in Tolar was less than in this case; however, the difference - four months - is not a basis for a different sanction. Nor can a meaningful distinction be drawn by characterizing the respondent s conduct in this case as an essential abandonment of her client s case. In Tolar, a period of some tw o years elapsed before the complaint was filed with Bar Counsel, during which the attorney intentio nally did n ot take a ny action on beh alf of h er client. Attorney Grievance C omm n v. Tolar, 357 Md. 569 , 576-79, 745 A .2d 1045, 1049-5 0 (2000). 7 In addition to acknowledging that sufficient evidence was submitted to sustain the allegations of misconduct and that she consented freely and voluntarily to a reprimand, the effects of which she stated she knew, the respondent simply advised the Court that she has not been practicing law since November 2003 [and that s]he does not anticipate returning to the practice of law in the foresee able future. Nor w as the Court any more enlightened by the April 4, 2005 court proceedings. To be sure, the Court learned that it was the responden t s medical condition that explained her discontinuation of the practice of law and the belief that she would n ot resum e soon . That disclosure caused the Court and the parties to focus on inactive status as the m ost approp riate disposition . It did not off er any other insig ht into whether there were factors mitig ating the resp ondent s m isconduc t. The situation , therefo re, is this. T he resp onden t, like To lar, viola ted Ru les 1.3, 1 .4 and 8.1 (b) of the Rules of Professional Conduct. Unlike Tolar, she has no prior attorney grievance history, a f actor tha t suppo rts a disp osition s imilar to t he one Tolar re ceived . More important, however, also unlike in Tolar, there is neither a finding, nor any basis for mitigating the respondent s misconduct. While the respondent represented that she was suffering from a medical condition that caused her to cease practicing law and made her return to the practice in the foreseeable future uncertain, the respon dent has fa iled to subm it documentation to confirm its existence, despite having been requested, and having agreed, to do so . And, ac cord ing to the petit ione r, the resp ondent n ow e xpre sses uncertai nty as to her willingness to take inactive status as she previously indicated she was willing to do. 8 There simply is nothin g, moreov er, of record to indicate the likelihood of a repetition of the conduct. Accord ingly, we believ e that the app ropriate sanc tion - the one that will protect the public - is that recommen ded by the petitioner, the indefinite suspension of the respondent from the practice of law. This sanction ensures, because she can be readmitted to practice only on ord er of thi s Cou rt, Steinberg, 385 Md. at 706 n. 10, 870 A.2d at 609 n.10, that the respondent will not be perm itted to practice until this Cou rt is satisfied she is able to do so and, furthe r, will practice c onsistent w ith the Ma ryland Rules o f Professio nal Cond uct. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT T O MARYLAND RULE 16-715, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR O F T H E A T T O R N E Y G RI E V A N C E COMMISSION AGAINST KRISTIN E. KOVACIC. 9