Attorney Grievance v. Hill
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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket (Subtitle AG) No. 77 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JOHN LYSTER HILL Bell, C.J. Raker *Wilner Cathell Battaglia Greene Bloom, Theodore G. (Retired, specially assigned), JJ. Opinion by Bell, C.J. File: March 21, 2007 *Wilner, J., now retired, participated in the hearing and conferencing of this case w hile an active member of this Court; after being recalled pursuant to the Con stitution, Article IV, Section 3A, he also participated in the decision and adoption of this opinion. 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 John Lyster Hill, the respondent. The petition charge d that, in representing two clients, the respondent violated Rules 1.3, Diligence,2 1.4, Communication,3 8.1, Bar Admission and Disciplinary Matters,4 and 8.4, M isconduc t,5 of the Maryland Rules 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approva l of Com mission. U pon app roval or direc tion of the C ommissio n, Bar Co unsel shall file a Pe tition fo r Discip linary or R emed ial Actio n in the C ourt of Appe als. See also Rule 16-743, which specifically provides, in the context of the Peer Review Committee recommendation, that [t]he Commission may (1) approve the filing of a Petition for Disciplinary or Rem edial Action[.] 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, as relevant, provides: (a) A law yer shall: * * * * (2) keep [a] client reasonably informed about the status of [a] matter; [and] (3) 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 la wyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: * * * * (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a of Pro fession al Con duct, as adopte d by Ma ryland R ule 16- 812. We referred the case, pursuant to R ule 16-752 (a), 6 to the Honorable Dennis M. Swe eney, of the Circuit Court for Howard County, for hearing pursuant to Rule 16-757 (c).7 Following a hearing, at which the resp ondent appeared and participated, the hearing co urt found facts by the clear and convincing standard and drew conclusions of law, as follows. lawful d ema nd for inform ation 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. 5 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: * * * * (d) engage in con duct that is prejudicial to the administration of ju stice[.] * * * * 6 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. 7 Maryland Rule 16-757 (c) provides: (c) Findings and conclusions. 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 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 2 The respondent was retained by Edward Beier to prepare and obtain an Eligib le Dome stic Relations Order ( ED RO ), necessary to enable him to obtain half of his ex-wife s State employee s retirement benefit. In his engagement letter to Mr. Beier, the respondent conditioned the commencement of work on the matter on the payment by Mr. Beier of a minimum fee of $500.00. Although $200.00 of that amount was paid on the date of retention, the balance was not paid un til more than three month s later.8 At that time, the respondent s obligation to prepare the EDRO began. Despite Mr. Beier s numerous requests that he do so, the respondent did not prepare the EDR O or cau se it to be exe cuted prior to Mr. Beier s remarriage and consequent ineligibility to share in his ex-wife s pension. W hile admitting that he did not prepare the EDRO and conceding that there was no good reason for failing to do the work required in Mr. Beier s case, the respondent disputed Mr. Be ier s testimony only insofar as it indicated that the respondent falsely had told Mr. Beier that he had prepared the o rder. Mr. Beier filed a complaint with the petitioner, which Bar Counsel forwarded to the respondent with the request that he provide a response. He followed up that letter with three others and three telephone calls. The respondent did not answer any of the letters or telephone calls or contact bar counsel in connection with the complaint for almost four months. At that time, he provided Bar Counsel with a written response. Prior to submitting 8 One month earlier, Mr. Beier purported to pay the balance; however, the check tendere d for th at purp ose was return ed for in suffici ent fun ds. 3 the written response, he refu nded Mr. Beier s entire fee ..., admitting that he had done no work on Mr. Beier s case. The respondent subsequently consented to be, and was, interviewed by an investigator fo r the petitioner. In the second matter, the resp ondent w as retained to represent Mr. John W. Wilson in connection with a domestic relations case involving visitation and access issues concerning Mr. Wilson s daughter. He was paid a retainer of $2,000.00. He attended, with his client, his client s ex-wife and he r counsel, a pre-trial conference in th e Circuit Court for Anne Arundel Cou nty before a Master, at which an agreement was reached. That agreement was placed on the record and the respond ent agree d to prepare and subm it a written consent order within two weeks of that date. H e did not do so. Nor had he done so after six months, despite calls from the Maste r s office inquiring about the status of the order and calls and two letters from Mr. Wilson. When the order had not been filed after more than six month s, a judge of the Circuit Court issued an Order for the respondent to appear in court and explain th e reason fo r his failure to submit the order and show cause why sanctions and costs should not be im posed . Without informing his client that the show cause order had been issued or that the parties had been ordered to appear in court, the respondent prepared a Consent Order, apparently sent it to opposing counsel for signature and submitted it, signed by both counsel, to the court on the date scheduled for the show cause hearing. The respondent did not send the Consent Order to his client for review, nor even inform his client that he had prepared one, which had 4 been sub mitted to and signed by the c ourt. 9 Bar counsel m ade two requests of the respondent to produce his file in the Wilson matter. Although they were received, the respondent did not comply. His only explanation for not having done so was: I knew I messed up with Beier and Wilson, so, I guess I just didn t re ally wan t to face it in addi tion to al l the othe r things t hat we re goin g on. [10] Based on the f oregoi ng find ings of fact, the hearing court concluded that the responde nt, by failing to act expeditiously in both cases, by not timely preparing the EDRO in the Beier case, and by his delay in preparing the Consent Order in the Wilson case, violated Rule 1.3. The inaction in the Beier case was, in addition, it opined, a violation of Rule 8.4 (d). The hearing court further concluded that in each case, the respondent violated Rule 1.4. In the Beier case, it consisted of failing to keep M r. Beier reasonably informed 9 This was significant to Mr. Wilson because he maintained that the respondent agreed to le t him review the draft of the Cons ent Orde r and sign o ff on it prior to submitting it to the court. After reviewing the Consent Order that the respondent submitted to the court and which the court signed, Mr. Wilson stated that the order did not reflect th e agree ment p laced o n the rec ord, a co ntention that the r espon dent dis putes. The hearing court did not resolve the dispute. 10 The other things to which the respondent was alluding were, as found by the hearing court, his arrest, shortly after the pre-trial conference in the Wilson matter, and subsequent placement on probation, for driving under the influence of alcohol; the hospitalization, and subsequent death, of his mother-in-law, with the consequent grieving of his wife; and the behavioral problems - truancy, smoking and theft - of the respondent s eldest daughter. The hospitalization and death of his mother-in-law coincided with the Master s attempt to discover the status of the Consent Order. These matters, in combination, the hearing court found, were disruptive of the respondent s law practice . 5 of the status of the matter and by failing to respond to his inquiries.11 Its gravam en, in Wilson, was the respondent s failure: to respond to his client s letters and telephone messages; to notify him of the show cause order, for, as a party, [he was required] to be present in court for a hearing; and to notify his client that the Consent Order had been submitted and entered. Rule 8.1 was violated as to Beier, the hearing court concluded, when the respondent did not timely respond to Bar Counsel s request for a response to the B eier com plaint. Moreover, it characterized the delay as wilful and without excuse. With respect to Wilson, the hearing co urt found that the respo ndent did respond timely; howe ver, the failure to produce the file, as requested , was reprehensible an d, thus, a violation of Rule 8.1 (b ). The hearing court determined that the respondent violated Rule 8 .4 (d). It reasoned: [The respondent] s failure to file the consent order within 15 days, as ordered by the Court, his failure to respond to inquiries by Master Muskin s office, and his continued failure to sub mit the Co nsent Ord er led to Jud ge Silkworth ordering him to show cause why sanctions should no t be imposed. [The responde nt] then took an additional two months to submit the order, waiting until the date set for the show cause hearing to do so. Respondent s actions and inattention to the requirements set by the Court constitute 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. Having found the rules violations charged, the hearing court also offered findings of 11 Although of the belief that [o]n a few occasions when Mr. Beier called in the autumn of 2004, [the respondent] led Mr. Beier to believe that a draft EDRO was being prepared, it found tha t [t]here is no t clear and co nvincing e vidence th at [the respo ndent] affirmatively misrepresented to Mr. Beier that the EDRO had been prepared and presen ted to the couns el for th e retirem ent system . 6 mitigation: The Court finds that [the respo ndent] s inattention to these cases was caused in part by his dealin g with his alcohol a buse prob lem and D UI arrest, and then dealing with additional family responsibilities caused by the illness and death of his mother-in-law. [The resp ondent] s d aughter s b ehavioral p roblems in 2005 also distracted him from his practice. Master Muskin s administrative assistant ... noted in her affidavit that [the respondent] s failure to act promptly was not his typical behavior. In the period from the summer of 2004 through spring of 2005, and co ntinuing to the present, [the respo ndent] s only support staff has bee n a rece ptionist. [The respondent] has no t added any support staff. Since the end of his probationary period, [the respondent] has not continued to engage in any therapy, treatment or su pport grou p activity to ensure that he remains sober. There is no evidence presented that [the respon dent] h as relap sed into excess ive use of alco hol. Neither the petitioner n or the respondent filed exception s to the hearing court s findings of fact or conclusions of law. While both appeared at oral argument and offered their respective recommendations orally, only the petitioner submitted a written recommendation. In that recommendation, notwithstanding the hearing court s finding that the misconduct was mitigated, in part, by the respondent s alcoho lism, his mother-in-law s illness and subse quent dea th and his d aughter s b ehavioral p roblems and desp ite its concession that no harm was done, the petitioner urged the respondent s suspension for a one year period. In so doing, it emphasized the respondent s dereliction in not preparing the EDRO, as he had been paid to do, his dilatoriness in preparing a consent order that he agreed to complete within fifteen days of the agreement it would reflect, the fact that the two instances of misconduct occurred at the same time and both involved rather simple and straightforward matters and the failure to respond to Bar Co unsel in a tim ely and com plete 7 manner. The responde nt, like the petition er, expressly did not except to the hearing co urt s factual finding or conclusions of law, stating that he had no quarrel with them and that they accurately reflect what took place, his action or inaction, as the case may be, the mitigating factors present and the remorse that he felt. He added that he was ashamed of what took place and was not proud of having let his clients down, for which he stated he had already apologized to them. Emphasizing the mitigating factors the hearing court found and relying on Attorney Grievance Comm'n v. Tolar, 357 Md. 569, 745 A.2d 1045 (2000), the respondent urged a reprimand. We have said so of ten, that it is now well settled, that the purpose of attorney discipline is not to punish the erring attorney but to protect the unsuspecting public. Most rece ntly, we elucidated the point in Atto rney G rievance Com m'n v. Rees, 396 Md. 248, 254, 913 A.2d 68, 72 (2006). This purpose is ach ieved wh en the sanc tion impos ed is commensurate with the nature and gravity of the violations and the intent with which they were comm itted. Attorney G rievance C omm'n v . Kovacic , 389 Md. 233, 238, 884 A.2d 673, 676 (2005). Of significance to the sanction decisio n is, inter alia, whether the attorney has remorse for the misconduct, whether the conduct is likely to be repeated and whether the attorney has a prior grievance history. Id. at 238, 88 4 A.2d at 676., quoting Attorney Grievance Comm'n v. Post, 379 Md. 60, 71, 839 A.2d 718, 724-25 (2003); Attorney Grievan ce Com m n v. W yatt, 323 Md. 36 , 38, 591 A.2d 46 7, 468 (1991). 8 As the petitioner recognize s, this case is reminiscent of Kovac ic and the case against which it, and the sanction we imposed in that ca se, was comp ared, Tolar, supra, 357 Md. 569, 745 A.2d 1045. In Tolar and in Kovac ic, each of the respo ndent att orne ys was found to have violated the same Rules of Professional Conduct, Rules 1.3, 1.4, and 8.1( b), b y failing to complete a QDRO, failing to communicate with her client and failing to respond timely to Bar Counsel's inquiries. We imposed a reprimand in Tolar and an ind efinite suspe nsion in Kovac ic. We add ressed the d ifference in sanction, and the reasons therefore, in Kovac ic, explaining: The reprimand in [Tolar] was b ased lar gely on th e respo ndent's r emors e, a factor that could have been, and apparently was, explored in that case, and that sanction was imposed despite prior unreported reprimands on the responding attor ney's record. From the respo ndent's remorse, another factor, that a repeat of the misconduct was unlikely, admittedly not mentioned, could have been inferre d, 389 Md. at 239, 884 A.2d at 676,12 and Unlike Tolar, [Kovacic] has no prior attorney grievance history, a factor that supports a disposition similar to the one Tolar received . More im portant, however, also unlike in Tolar, there is neither a finding, nor any basis for mitigatin g the res ponde nt's misc onduc t. Id. See also Attorney Grievance Comm'n of Maryland v. Lee, 393 Md. 546, 564-66, 903 A.2d 895, 906 -07 (2006) (discussing and contrasting Kovac ic and Tolar). The responde nt's miscond uct closely resembles the misconduct found in Kovac ic and 12 We also noted, as a factor in imposing a reprimand, Tolar s history of rendering assistance to the Director of the Lawyers Assistance Program of the Maryland State Bar Association. 9 Tolar. It is, however, more extensive from the perspective of the number of rules violated and the number of clients affected. In addition to Rules 1.3, 1.4, and 8.1 (b), the rules violated by Kovacic and Tolar, th e respo ndent a lso wa s foun d to hav e violate d Rule 8.4 (d). Moreover, rather than one client being affected by the misconduct, as was the case with those attorneys , here the respon dent s m iscond uct aff ected tw o clients . As between Tolar and Kovac ic, this case is most like Tolar. 13 Like Tolar, the respondent has a prior g rievance h istory, two dism issals with a w arning, as op posed to unreported reprimands. Mo reover, he presented evidence, and the hearing court found the existence, of mitigating factors, which, it concluded, were responsible, at least in part, for the respondent s misc onduct. A dditiona lly, the respondent has expressed remorse, appearing in this Court and stating that he is ashamed of his misconduct, suggesting, at least by inference, that these matt ers are no t refl ectiv e of h ow h e pra ctice s law . And, co nsistentl y, there was testimony, in the form of the affidavit of Master Muskin s administrative aide, that the respondent s behavior during this period was out of character for the respondent. Taken together, it further ma y be inferred th at the respon dent s misc onduct is n ot likely to be repeate d. 13 The petitioner, at oral argument, distinguished this case from Tolar on the bas is of the extent of the involvement of the attorney in that case in the work of the Maryland State Bar Association s Lawyer Assistance Program and on the degree of cooperation she displayed, onc e she decid ed to coop erate. It noted th at Tolar w as dubbe d [his] m an in Havana on the Eastern Shore by Richard Vincent, the Director of the Lawyer Assistance Program. It characterized Tolar as being extremely cooperative. 10 Acc ordingly, although more serious than in Tolar, and therefore dem anding a more substantial sanction, this case is a far cry from Kovac ic. We believe that the public will be protected if a thirty-day suspension from the practice of law is imposed. 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 T H E A T T O RN E Y G R I E V A N CE COMMISSION AGAINST JOHN LYSTER HILL. 11
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