Attorney Grievance v. Lee

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Attorney Grievan ce Comm ission of Maryland v. Norman J oseph Lee, III Misc. Docket AG No. 68, September Term, 2004 DEFAULT ORDER MOT ION TO VACA TE DE FAUL T ORD ER An attorney s failure to answer a Petition Fo r Disciplinary Action may result in the hearing court s entry of a default judgment. In the exercise o f discretion the hearing cou rt may vacate the default order upon receipt of a motion to vacate the order of default filed withing 30 days after entry. The motion shall state the reasons for the failure to plead and the legal and factual basis for the defense to the claim. The court shall vacate the order of de fault if the court finds that there is a substantial and sufficient basis for an actual controversy as to the merits of the action and that it is equitab le to exc use the failure to plead. Here, the court did not abuse its discretion. ATTORNEY DISCIPLINE APPRO PRIATE SANC TIONS An attorney, upon acceptance of representation of a client, is required pursuant to the M RPC, to a ct with reasonab le diligence and promptness in representing a client, Rule 1.3. Under the circumstances of this case, the attorney violated Rule 1.3 in taking almost one year after accepting payment of the retainer to visit his client who was then incarcerated and in failing to file some sort of pleading or indicate that there was no basis to do so and to make an accounting to the client of the monies that had been spent out of the retainer and then refund any remainder. In addition, it was a violation of Rule 1.4 for an attorney to fail to keep a client reasonab ly informed a bout the statu s of a matte r and to fail to promp tly comply with reasonab le requests fo r informatio n. Althoug h, the MR PC do n ot manda te that the attorney of record must respond to inquires on behalf of a client from his or her relatives, under the circumstances of this case, a prompt response from the attorney to the relative acting as a conduit for the cl ient w ould have bee n rea sona ble. A t the v ery least, the attorney was obligated to commu nicate to the client that all communication concerning his case would be direct an d not th rough any third p arty. In the Circu it Court for B altimore C ounty Case No. 03-C-05-000772-OC IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 68 September Term, 2004 ____________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. NORM AN JO SEPH L EE, III _____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. _____________________________________ Opinion by Greene, J. ______________________________________ Filed: January 12, 2006 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary Or Remedial Action against Norman Joseph Lee, III, the respondent. The petition charged that respondent violated Rules 1.3 (D iligence), 2 1.4 (Communication), 3 and 1.16 (Declining or terminating representation)4 of the Maryland Rules of Professional Conduct (MRPC), as 1 Maryland Rule 16-751, in relevant part, provides: (a) Com menc emen t of disc iplinar y or re media l action . (1) Upon approv al of C omm ission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Reme dial Ac tion in th e Cou rt of A ppeals . 2 Rule 1.3 requires [a] lawyer [to] act with reasonable diligence and promptness in represe nting a c lient. 3 Rule 1.4 p rovides, in rele vant part: (a) A lawyer sh all keep a clie nt reasonab ly informed a bout the status of a matter and promptly comply with reasonable requests for information. Effective July 1, 2005, the format of Rule 1.4(a) was modified as follows: (a) A lawyer shall: * * * * (2) keep the client reasonably informed about the status of the matter; (3) promptly comply with reasonable requests for information .... 4 Rule 1.16 provides, in r elevant par t: (d) Upon termination of representation, a lawyer shall take steps to the extent rea sonably practic able to prote ct a client s intere st, such as giving reasonable notice to the client, allowing time for employment of other co unsel, surren dering pap ers and pro perty to (contin ued...) adopted by Rule 16-812. We referred the case, pursu ant to Rule 16-752 (a), 5 to the Honorable Lawrence R. Daniels, of the Circ uit Court fo r Baltimore County, to conduct a hearing and to make Findings of Fact and Conclusions of Law. When respondent did not answer the petition, an order of defau lt was entered against him on April 14, 2005. Pursuant to the Order of Default, a hearing was set for June 30, 2005, at 9:30 a.m. Prior to the June hearing, respondent filed a motion to vacate the Order of Default and an answer to the Petition for Disciplinary Action. Petitioner responded to the motion to vacate and respondent s answer to the Petition for Disciplinary or Remedial Action, requesting that the court deny the motion to vacate the Order of Defa ult and permit the case to proceed, as scheduled, upon the default order on June 30, 2005. Th e court agre ed with petitioner and denied respondent s motion. At the hearing on June 30, 2005, respondent argued that the court should vacate the order of default. He 4 (...continued) which the client is entitled and refunding any advance payment of fee or expense that has not been earned or incurred. The lawyer may retain papers relating to the client to the extent permitted by other law. 5 Rule 16-752 (a) provides: (a) Order. Upon th e 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 fo r the completion of discov ery, filing o f motio ns, and hearing . 2 conceded that there is no court rec ord ackn owledg ing the timely rec eipt of his response to the petition for disciplina ry action. Resp ondent co ntended, h oweve r, that his office records reveal that he sent th e court a timely response. N otwithstand ing the abse nce of a tim ely response, responde nt reargued that the cou rt should vacate the Ord er of D efault. The hearing court responde d by pointing o ut that any mo tion to vaca te should have been filed within thirty days after entry of the Orde r of Def ault and w as not, and th at respond ent did not, pursuant to Rule 2-613(d), state the reasons for the failure to plead and the legal and factual basis for the defense of the claim. The hearing court further stated: Again, I just interrupt because I want the record to be clear that though Mr. Lee did in fact enter his motion to set aside the default or vacate the default, he did not give a reason why there was fa ilure to p lead, he did not offer any legal or factual basis. In addition, pursuant to Rule 1 6-757 (c), 6 the court found f acts by the clear and convincing standard and concluded that respondent violated Rule 1.3 of the Maryland Rules of 6 Maryland Rule 16-757(c) provides: (c) Findin gs and conclu sions. The judge shall prepare and file or dictate into the record a statement o f the judge s findings o f fact, including findings as to any evidence regarding remedial action, and conclu sions o f law. If dictated into the record, the statement shall be pro mptly transcrib ed. Unless the time is extended by the Court of Appeals, the written or transcribe d statemen t 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 stateme nt to eac h party. 3 Profe ssional C onduc t. The record shows that Norman Joseph Lee, III, was admitted to the Maryland Bar on March 31, 1981. Bobby D. Coleman, complainant, retaine d respond ent to seek p ostconviction relief in the Circuit Court for Washington County. The retainer agreement was dated July 8, 2002, and signed by respondent and witnessed by his secretary. Respondent accepted a fee of $3,500, paid by Mr. Coleman s mother on behalf of her son, as a retainer for services to be rendered in the matter. Thereafter, on August 2, 2002, Mr. Lee entered his appearance in the C ircuit Court for Washington County on behalf o f Mr. Colem an. In Mr. Coleman s letter to the Attorney Grievance Commission, dated July 10, 2003, he complained that, as yet he had never me t [Mr. Le e] nor had the ability to discuss the job I m hirin g him to perfo rm. Following Mr. Coleman s complaint to the Commission, Mr. Lee scheduled an appointment to interview Mr. Coleman at the prison facility and met with Mr. Coleman on Augus t 23, 2003. T his meeting occurred m ore than a yea r after Mr. C oleman retained respon dent to r eprese nt him. Specific ally, the hearing court found that it took respondent almost one year after he received payment of the retainer to v isit Mr. Cole man, wh o was the n incarcera ted in Washington County. Fu rther the hearing court noted, from the evidence, that there s no indication that [respondent] either took action on Mr. Coleman s behalf to file some sort of pleading or indicate that there was no basis to do so and make an accounting to Mr. Coleman of the monies that had been spent out of the retainer and then refund anything that remained 4 if there was a remainder. Based upon these findin gs of fact, the hearing court concluded that resp onden t displayed a lack o f diligen ce in vio lation of Rule 1 .3 of the MR PC. With respect to the violation of Rule 1.4, the hearing court found that respondent attempted to keep in contact with his client and his client s mother. The hearing court made no other specific findings, even though the testimony and d ocumentary evidence in the record shows that Mr. Coleman wrote, approximately in July or early August 2002, to Mr. Lee and had requested th at his attorney communicate about any new d evelopm ents or disco veries in his case and asked Mr. Lee to advise as to what the chances were of having his conviction reversed in the post-conviction proceeding. In addition, Mr. Coleman pointed out that he had been experiencing difficulties getting the respondent s phone number on the prison s institutional phone list an d that s wh y he did not call him personally (Paragraph 10. Petition For Discip linary Ac tion). Th is additio nal info rmation was o ffered , apparently, to explain why Mr. Coleman s mother w as acting as a conduit fo r her son w ith regard to sp ecific questions to Mr. Lee about the progress on her son s case. On August 21, 2002, she wrote to respondent and inquired as a matter of a status report on any research and legal preparation conducted for Bobb y s case. Within her letter she made reference to her own legal research in New York, and inquired whether her son s case in volved issu es relating to wrongful conviction, mistaken eye-witness testimony, admissibility of any prior crimes, search and seizure violations, and evidenc e disclosure and warrants. Mr. Coleman s mother also questioned respondent about the pre-sentence report containing false or misleading 5 statements that it would have otherwise impacted the sentence imposed as well as whether or not Ma ryland Rule 4 -342 cou ld apply to her son s case. M oreover, she wanted to know whether Bobby s case [was] effected [sic] by the recent Supreme Court rulings applying Apprendi? Further, she questioned how mu ch time she could exp ect Mr. L ee to take in perfor ming re search and co pied the letter to M r. Colem an. Approx imately 2 months later, by letter dated October 16, 2002, Mr. Lee w rote to Mr. Coleman and apologized to Mr. Coleman and his mother for the delay in the prosecution of your case. Additionally, [h]e acknowledged that Mrs. Coleman s August 21 letter referenced four cases but that he had not had the benefit of reviewing these cases but [was] in the process of reviewing same and [would] advise her accordingly. There is no evidence in the record, however, that Mr. Lee ever followed up on his promise either to review the cases referenced or to give any advice. Averment number 12 o f the petition for disciplinary action was that, [o]ther than th[e] meeting [with Mr. Coleman at the prison fac ility in August 2003, Mr. Lee] performed no substantive legal services on behalf of Bobby D. Colem an. In finding no violation of Rule 1.4, the hearing court observed that the court notes that the client is Mr. C oleman a nd not his mother. I don t believe there is any requirement under the Canons of Professional Ethics that the lawyer keep in touch with the person who paid the fee. It s the client who is and should be the centerpiece of all the attorney s efforts. Petitioner takes exception to the hearing court s failure to find a vio lation of R ule 1.4. 6 The respondent did not file exceptions either to the hearing court s findings of facts or conclusions of law. Because exceptions were filed by Bar Counsel, we determine whether the findings of fact hav e been proven in accordance with the applicable burdens of proof. See R ules 16 -759 (b ) (2) (B) and 16 -757 (b ). In the present case, the hearing court entered a default order. The court should have treated the averments as established pursuant to Rules 16-754(c) and 2-323 (e). Rule 16754(c) permits the court to treat failure to file a timely answer as a default, and Rule 2-323 (e) permits the court to treat the averments in a pleading as admitted unless denied. Because the ave rments were n ot denie d, we tre at them as adm itted. Further, in the exercise of our supe rvision over attorney disciplinary proceedings, we conduct an independent review of the record, accepting the hearing judge s findings of fact unless clearly erroneous. See Attorney G rievance Com m n v. Garfield , 369 Md. 85, 97, 797 A.2d 757, 763-64 (2002). We review de novo the hearing judge s conclusions of law. See Rule 16-759 (b ) (1); Attorney G rievance C omm n v. McLa ughlin, 372 Md. 467, 493, 813 A.2d 1 145, 11 60 (20 02). The hearing judge concluded that there was no violation of Rule 1.4 beca use there is [no] requirement under the [MRPC] that the lawyer keep in touch with the person who paid the fee. W e disagree a s to the judge s factual fin dings and conclusion of law as to Rule 7 1.4. After an unnecessarily protracted evidentiary hearing,7 it appears that the court eventually adopted the averm ents conta ined in the petition for disciplinary action as established facts. The hea ring judge, h oweve r, did not con sider those f acts in mak ing his conclusion of law with respect to Rule 1.4. The unchallenged facts, which the hearing court apparently overlooked, are that after execution of the retainer agreement and payment of the 7 The transcript of the disciplinary hearing conducted in the Circuit Court for Baltimore County contains eighty-eight pages. The hearing court s findings are reflected in pages 61 through 87. That portion of the transcript was incorporated as the court s Findings of Fact and Conclusions of Law in its Ord er dated July 15, 20 05, and numb ered, as Findi ngs, pages 2 through 28 inclusive. Initia lly, the hearing judge disagreed w ith petitioner s p osition that the avermen ts contained in the Petition For Disciplinary Action were deemed admitted by operation of Rules 2-613(f) and 2-323(e). The result of the hearing judge s disagreement required petitioner to expend considerab le effort to es tablish a factu al basis for the court to act upon and draw its Findings of Fact and Conclusions of Law. Although, the matter proceeded by default, the hearing court did not recogn ize until late in the proceeding that it could find that th[e] allegations [of the Petition For Disciplinary Action] having not been joined at issue by way of an answer are to be considered as true for purposes of the cou rt s decision in making Conclusions of Law in this case. Rule 2-613(f) p rovides, in pe rtinent part: [A] judgment by default . . . includes a determination as to liability and all relief sought . . . . Rule 2-323 (e) provides, in pertinent part: [a]verments in a pleading to which a responsive pleadin g is requ ired . . . are admitted unless denied in the responsive pleading or covered by a general denial. Moreover, for purposes of appellate review, the transcript w as unnec essarily difficult to follow because of the hearing court s failure to prepare and file . . . a statement of the judge s findings o f fact, includ ing finding s as to any evidence regarding remedial action, and conclusions of law. Rule 16-757(c). Although, Rule 16-757(c) permits dictation of oral findings and conclusions, the transcript of those findings was extremely difficult to follow for purposes of appellate review. 8 fee, Mr. Coleman notified respondent that he (Mr. Coleman) had been experiencing difficulties getting the respondent s phone number on the prison s institutional phone list and that s why he did not call him personally. Previously, respondent replied to Mr. Coleman about inquires m ade by Mr . Colema n s mothe r. In addition, re sponden t acknow ledged, in his letter dated October 16, 2002, that he had received communication from Mrs. Coleman concerning four ca ses she had res earche d. That letter was copied to Mr. Colema n s mother, as well as other correspondence. By letter dated August 21, 2002, Mrs. Coleman requested a status report on legal research and legal preparation conducted for her son s case. She raised specific questions to Mr. Lee within her letter and copied the letter to her son. Respondent acknow ledged rec eiving the A ugust 21, 2 002, letter and, in his delayed response, promised to follow up with an answer. There is no eviden ce in the reco rd that as of th e date of the hearing in this matter June 30, 2005 respondent ever communicated a response to the inquires made by Mrs. Coleman on behalf of her son other than his letter dated October 16, 2002. Certainl y, if respond ent did not w ish to comm unicate with Mrs. Coleman that was his prerogative. There is no evidence that Mr. Lee ever told Mr. Coleman that he would not commu nicate with Mrs. Coleman regarding her son s case. In accordance with the MRPC, respondent s obligation is to keep M r. Coleman reasonably informed about the status of his case and to promptly comply with his reasonable requests for information. Thus, the focus is on what, if anything, Mr. Lee did to carry out this obligation under the circumstances of 9 this case . Respondent did not meet with his client until almost one year after payment of the fee. He acknowledged receipt of the trial transcripts of Mr. Coleman s criminal case, copied them, and returned the originals to the client. After execution of the retainer agreement and payment of the retainer fee, all communication on the part of Mr. Lee essentially stopped. There were inquiries from Mrs. Coleman on behalf of her son, but the only response from Mr. Lee wa s a delayed resp onse that w as not very m eaningfu l. If Mr. Lee did not inten d to commu nicate with his client through his mother, he could hav e explained that to the clien t. Having failed to do so, the course of dealings with M r. Coleman sugg ested that Mr. Lee would respond to Mr. Coleman through his mother. Therefore, we sustain the petitioner s exceptions and conc lude that vio lation of Rule 1.4 was proven by clear and convincing eviden ce. With respect to the Rule 1.3 violation, neither the petitioner nor the respondent has taken exceptions to the hearing court s findings of fact and conclusions of law. As to the appropriate sanction petitioner recommends a reprimand, while respondent recommends that we dismiss the disciplinary proceedings. We agree with petitioner that a reprimand is the appropriate sanction. All that is required of responde nt is that he act w ith reasonab le diligence and promptness in representing his client. Under the circumstances of this case, respondent s representation of his client was unreasonable in that for almost one year respondent neglected his client s legal matter. The hearing judg e found no m itigating factors 10 and, likewis e, we f ind no m itigating factors . See Attorney Grievance Comm n v. Tolar, 357 Md. 569, 585, 745 A.2d 1045, 1054 (2000) (holding that a public reprimand would serve the purpose of protecting the public just as well as a short suspension ). Consistent with our view that Mr. Lee s violation of Rule 1.4 warrants a public reprim and, we c onclude th at his violation of Rule 1.3 also warrants a public reprimand.8 Our goal is not to punish the responde nt, but to impose a sanction that will deter other attorneys from engaging in similar miscond uct. See Attorney Grievance Comm n v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38 (2000) (citing Attorn ey Grie vance Com m n v. O ber, 350 Md. 616, 631-32, 714 A.2d 856, 864 (1998 ) (citation s omitte d)). In this case, a reprimand will serve the purpose of protecting the public. It serves as notice to the respondent and other attorneys that this Court considers an attorney s lack of diligence and lack of communication with his or her client, serious matters . Because the fee paid to Mr. Coleman has not been returned and Mr. Lee remains counsel of record, it appears that he intends to continue his representation of Mr. Coleman. This opinion is limited to the allegations of misconduct which predated the petition for disciplinary action filed in this case. If respondent continues his representation in this case and wishes to a void any furth er disciplinary actio n, he is duty bound to follow the MRPC. 8 Petitioner, apparently, abandoned any other charges because no other exceptions were filed and no argument was presented in support of a Rule 1.16 (d) violation. Therefore, we will no t addres s the ch arge inv olving allegatio ns that re spond ent viola ted Ru le 1.16 ( d). 11 IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS C O U R T ; I N C L U DI N G C O S T S O F A LL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715, FOR W HICH SU M JUD GME NT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST NORMAN JOS EPH LEE , III. 12

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