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Lawyer disbarred for neglecting clients

Maryland’s top court has unanimously disbarred an attorney who failed to keep his clients informed about the status of their personal-injury cases and to cooperate with Bar Counsel’s investigation of his lack of diligence.

David E. Fox, in a one case, neglected to keep two clients up to date because he himself was “completely oblivious” that the lawsuit he had filed in Prince George’s County had been dismissed, the Court of Appeals said.

Fox, of David E. Fox & Associates in Washington, D.C., also engaged in misrepresentation by telling one of those clients that he, Fox, had “already been to court” when in fact he had let the case languish, the high court said.

In another case, Fox failed to tell his client that a settlement agreement had been reached with his insurance company — or even that a settlement had been offered, the court said.

The Court of Appeals also rejected as “damage control” Fox’s expression of remorse before Montgomery County Circuit Court Judge Marielsa A. Bernard, whom the high court appointed to conduct a hearing on the attorney’s misconduct.

“The combination of Respondent’s violations — in particular, abandonment of his clients, misrepresentation and failure to cooperate with Bar Counsel’s investigation  — convinces us that Respondent [Fox] is unfit to practice law in Maryland and disbarment is the appropriate sanction to protect the public,” Judge Mary Ellen Barbera wrote for the high court.

Fox’s clients Ronnie E. Miller and David A. Pearson, who were injured in a car crash, discovered only after they hired another lawyer that their claim against motorist Timoko Reed had been dismissed for lack of prosecution.

“Under no fair interpretation of Rule 1.3 [governing diligence] could such inattentiveness be considered ‘reasonable’ in this case,” Barbera wrote.

Similarly, Fox’s client Abdul M. Barrie learned that his claim for uninsured motorist coverage from GEICO had settled for $5,825 only after he retained another attorney. Fox said he never received the settlement checks GEICO sent in January 2002 — and reissued nine more times between August 2002 and May 2007 — which never were negotiated.

Fox said he suspected his mail was being stolen. Bernard, in finding a lack of diligence, noted that Fox never rented a post office box or told GEICO to mail the checks elsewhere.

In its 7-0 decision, the Court of Appeals found that Fox’s failures violated Rules of Professional Conduct governing the representation and treatment of clients, including the duties of competence and reasonable diligence. Fox also engaged in “conduct that is prejudicial to the administration of justice” by failing to cooperate with Bar Counsel, the court ruled.

In ordering disbarment, the court rejected Fox’s argument that his misconduct was “neither egregious [nor] intentional” and merited at most “a short-term suspension.”

The high court also discounted Fox’s explanation that he failed to respond to Bar Counsel in a timely manner due to a flood in his office. Bar Counsel had sent Fox several requests for information before the flood, the court noted.

“Even if the flood occurred early enough and was severe enough to prevent him from recovering the Barrie file, no explanation or evidence is provided to convey how it prevented him from writing or calling Bar Counsel … to request additional time,” Barbera wrote.

Fox did not return telephone messages seeking comment on the court’s decision Thursday. His attorney, Greenbelt solo practitioner Melvin G. Bergman, declined to comment.

Bar Counsel Glenn M. Grossman could not be reached on Thursday.

WHAT THE COURT HELD

Case:

Attorney Grievance Commission of Maryland v. Fox, CA Misc. Docket AG No. 6, Sept. Term 2009. Reported. Opinion by Barbera, J. Concurrence by Battaglia, J. Filed Dec. 20, 2010.

Issue:

Is disbarment an appropriate sanction for failing to keep clients apprised of a dismissal or settlement, misrepresenting the status of a case and not cooperating with Bar Counsel?

Holding:

Yes; Such a “combination” of violations warrants disbarment “to protect the public.”

Counsel:

Gail D. Kessler for petitioner; Melvin G. Bergman for respondent.

RecordFax # 10-1220-20.