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Opinions – 4/7/12: Maryland Court of Appeals

Criminal Procedure

Voir dire objection

BOTTOM LINE: An overruled objection to a “CSI effect” voir dire question, where the nature of the objection was directed to the composition of the jury, was waived when the defense thereafter accepted the jury without qualification.

CASE: State v. Stringfellow, No. 62, September Term, 2011 (filed Apr. 23, 2012) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & Thieme (retired, specially assigned)). RecordFax No. 12-0423-22, 25 pages.

FACTS: Baltimore City police officers observed Reginald Stringfellow holding a handgun. When the officers approached Stringfellow, he dropped the gun and ran off. The officers caught Stringfellow, arrested him, and recovered the handgun.
The State charged Stringfellow with: (1) possessing a regulated firearm after having been convicted of a disqualifying crime, and (2) wearing, carrying, or transporting a handgun. On the first day of Stringfellow’s jury trial, the judge considered voir dire questions proposed by the parties. Among the State’s proposals was its question 14, which inquired whether any member of the venire believed that the State must use certain scientific evidence and/or scientific investigative techniques before a potential juror could find the defendant guilty beyond a reasonable doubt. The judge propounded ultimately the State’s question 14 as “Does any member of the panel believe that the State is required to utilize specific investigative or scientific techniques such as fingerprint examination in order for the defendant to be found guilty beyond a reasonable doubt?” No response was recorded from anyone in the venire.
After voir dire and jury selection, and before the clerk swore the jury, the clerk asked the parties if the jury was acceptable. Both the State and defense counsel responded yes.
As part of his defense, Stringfellow highlighted that the police officers failed to have examined the confiscated handgun for latent fingerprints. In the absence of such an examination, Stringfellow urged that the State failed to link him conclusively to the handgun. He reiterated the lack-of-fingerprint-evidence argument, over the prosecutor’s objection, during closing argument.
The jury convicted Stringfellow on both counts. The Court of Special Appeals reversed and remanded for a new trial.
The State appealed to the Court of Appeals, which reversed the Court of Special Appeals.

LAW: Generally, a party waives his or her voir dire objection going to the inclusion or exclusion of a prospective juror or the entire venire if the objecting party accepts unqualifiedly the jury panel (thus seated) as satisfactory at the conclusion of the jury-selection process. Gilchrist v. State, 340 Md. 606, 617 (1995). Conversely, a voir dire objection that is incidental to the inclusion/exclusion of a prospective juror or the venire is not waived by accepting a jury panel at the conclusion of the jury-selection process; rather, such an objection is preserved for review on direct appeal. Gilchrist, 340 Md. at 618 (citing Couser v. State, 282 Md. 125, 130 (1978)).
The following types of voir dire objections were aimed directly at the inclusion/exclusion of a prospective juror or the venire and were waived when the objecting party accepted the jury without contemporaneous renewal of his or her complaint: (1) an objection to a judge’s refusal to strike prospective jurors for cause, Mills v. State, 310 Md. 33 (1987); (2) an objection to the exclusion of a juror because of his beliefs about capital punishment, Foster v. State, 304 Md. 439 (1985); (3) a defendant who failed to object to unacceptable venire members after using all of his peremptory strikes, White v. State, 300 Md. 719 (1984); (4) an objection to a venire not selected randomly from registered-voter lists, Glover v. State, 273 Md. 448 (1975); and, (5) an objection to prejudicial remarks made by the prosecutor in earshot of the venire, Neusbaum v. State, 156 Md. 149 (1928).
On the other hand, the following objections were deemed incidental to the inclusion/exclusion of prospective jurors and, therefore, not waived by the objecting party’s unqualified acceptance thereafter of the jury panel: (1) an objection to a prior jury panel, where the judge excused that prior jury panel and called a second one from which was selected the jury that convicted the defendant, Gilchrist, 340 Md. at 617-18; (2) an objection, made during voir dire, to being refused permission to inspect a prosecutor’s notes on prospective jury members, Couser, 282 Md. at 129; and, (3) an objection to a judge refusing to ask a proposed voir dire question, Marquardt v. State, 164 Md. App. 95 (2005).
Stringfellow’s objection — that the State’s voir dire question, if asked, would bias the venire members against him and diminish the State’s burden of proof — tracks most closely in purpose and design the objections in Glover and Neusbaum. Stringfellow’s objection implied necessarily that the venire members would be incapable of sitting on the jury and evaluating the evidence (or lack of certain evidence) fairly and objectively because the pertinent voir dire question “poisoned” the venire by implying, among other things, that Stringfellow was guilty.
Stringfellow’s objection asserted that the venire members, if the relevant question was posed, would be unfit to sit as jurors in his trial; therefore, his objection went to the inclusion of prospective jurors on the jury selected ultimately. Objections of this nature are waived if not preserved appropriately at the time the trial court empanels the jury. Here, Stringfellow accepted, without reservation or qualification, the jury. Consequently, Stringfellow failed to preserve his voir dire objection for future consideration on appeal.
This conclusion disapproves necessarily an aspect of McFadden v. State, 197 Md. App. 238, 253 (2011), a case that the Court of Special Appeals relied upon to reject the State’s waiver argument. The jointly-tried defendants in McFadden complained prefatorily that a proposed voir dire question, ultimately propounded, suggested that they were guilty. Id. at 248. They noted timely their objection, but later accepted the jury without qualification. Id. at 250. The McFadden court concluded that the defendants preserved their voir dire objection nonetheless for two reasons. First, defense counsel, in not renewing their objection at the time they accepted the jury, “was merely obedient” to the court’s prior overruling of their objection. Id. at 253. Obeisance to the trial court’s ruling on the objection, however, should not be the crux of such an analysis. Second, the McFadden court used as authority for its position Fowlkes v. State, 117 Md. App. 573 (1997). Fowlkes concluded that an objection to the judge’s refusal to propound a requested voir dire question was incidental to the composition of the jury. The objection was preserved therefore for appellate review, despite the objecting party’s unqualified acceptance of the jury.
Fowlkes, however, is inapposite. The propounded, purportedly prejudicial, voir dire question in McFadden (like the subject voir dire question in the present case) is not analogous to the unpropounded voir dire question in Fowlkes. An objection to a propounded, purportedly prejudicial, voir dire question relates directly to the composition of the jury. An unpropounded voir dire question cannot likewise prejudice the venire. Thus, the two types of objections are distinct, and Fowlkes does not support the conclusion in McFadden that both types are preserved for appellate consideration without renewed objection when the jury is empaneled.
Accordingly, Stringfellow waived any further objection to the voir dire question.

COMMENTARY: In a harmless error analysis in a criminal case, the State, as the prevailing party, must prove beyond a reasonable doubt that the error did not `”contribute[] to the rendition of the guilty verdict.’“ Lee v. State, 405 Md. 148, 164 (2008) (citing Dorsey v. State, 276 Md. 638, 659 (1976)). A reviewing court, upon an independent review of the record, `”must thus be satisfied that there is no reasonable possibility’“ that the assumed error caused impermissibly the guilty verdict. Lee, 405 Md. at 164 (quoting Dorsey, 276 Md. at 659).
Assuming error in the present case, the error was not reiterated during jury instructions or other comments from the bench while the jury was present. The judge permitted Stringfellow’s attorney to make a closing argument, over the State’s objection, about how the police officers’ failure to request testing of the confiscated handgun for latent fingerprints created reasonable doubt. The judge overruled the prosecutor’s objection immediately and in front the jury. Stringfellow argued to the jury that the officers had the ability to test the handgun, but failed to do so. Thus, the judge’s management of closing argument defused any prejudicial impact of the erroneously propounded voir dire question.
The judge propounded, contemporaneous with the erroneous voir dire question, a conjoined instruction-question, which provided: “If selected as a juror, you’re required to render a fair and impartial verdict based upon the evidence presented in the courtroom and the law as I describe it to you in my instructions at the end of this case. Is there any member of the jury panel who feels as if as a matter of your own personal conscience you disagreed with the law, you would disregard the law and instead follow your conscience?” As a consequence of the affirmative response, the judge screened four venire members from serving as jurors.
Additionally, toward the end of trial, the judge admonished the jury during his final instructions, “I may have commented on evidence or asked a question of a witness. You should not draw any inferences or conclusions from my comments or questions either as to the merits of the case or as to my views regarding the witness.” He instructed the jury also that the State had the constant burden to prove that Stringfellow was guilty beyond a reasonable doubt.
The jury instructions here, although a limited kind of cure, assisted in dislodging any residual bits of potential prejudice concerning the weight of presented (or unpresented) evidence and reminded the jury of the State’s fixed burden of proof.
Thus, any error was harmless.

PRACTICE TIPS: The Courts and Judicial Proceeding Article and the Maryland Rules permit a party to challenge an improper juror or jury array until the trial court receives evidence. See CJ §8-409(b)(1); Rule 4-312(a)(3), (d)(2). Moreover, a party can object to racially-based juror challenges until trial commences. United States v. Clark, 409 F.3d 1039, 1043 (8th Cir. 2005).

Professional Responsibility
Disbarment

BOTTOM LINE: Under the totality of the circumstances, given the gravity and pervasiveness of attorney’s misconduct, disbarment was the appropriate sanction.

CASE: Attorney Grievance Commission v. Brown, Misc. Docket AG No. 1, September Term, 2011 (filed Apr. 23, 2012) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & McDonald). RecordFax No. 12-0423-24, 30 pages.

FACTS: In 2003, Barry Brown filed in the circuit court a lawsuit on behalf of Action Business Systems, Inc. (ABS). The defendant removed the action to federal court. In the federal court, the defendant filed a third-party complaint against William Wallace, president and primary shareholder of ABS. The defendant served upon Brown interrogatories, a request for production of documents, and a notice of deposition of Wallace. Brown failed to respond to the discovery requests. As a result, the federal court granted the defendant’s motion for sanctions and entered a default judgment against ABS on each of the defendant’s claims.
As the case unraveled, Brown failed to advise Wallace about the status of the matter. Wallace learned for the first time of Brown’s neglect when the federal court entered an order of judgment, in excess of one million dollars, against Wallace and ABS.
The judge who presided over the ABS/Wallace case in the federal court, alerted the Attorney Grievance Commission to Brown’s representation of Wallace and ABS. As a result of this complaint, the Commission and Brown entered into a conditional diversion agreement, pursuant to Rule 16-736(a), under which Brown admitted to professional misconduct during his representation of Wallace/ABS. However, due to complaints from other of Brown’s clients, the Commission revoked the conditional diversion agreement.
Raymond Sweitzer hired Brown for a personal injury claim after being injured in a car accident. Three years later, Brown asserted that claim in a lawsuit filed in the U.S. District Court. Brown, however, failed to serve any discovery requests upon the defendant and failed to respond timely to the defendant’s discovery requests. Because of Brown’s lack of response, the defendant was granted sanctions against Sweitzer. Brown did not inform Sweitzer of the defendant’s discovery requests, Brown’s failure to respond to them, or the sanctions.
After Sweitzer was later involved in a second accident, he engaged Brown again to represent him. Brown still had not informed Sweitzer about the discovery failure and sanctions in the earlier case. Instead, Brown advised Sweitzer to dismiss voluntarily the prior case for pretextual reasons. Sweitzer agreed and case was dismissed.
In October 2007, Brown filed a complaint regarding the second accident. Brown failed to return most of Sweitzer’s calls and cancelled scheduled meetings with Sweitzer. Sweitzer consulted with another attorney and terminated Brown. He requested repeatedly that Brown send to him a copy of his file, but Brown failed to do so.
In May 2002, Linda Cartzendafner engaged Brown to pursue a medical malpractice claim arising from the death of her husband. In May 2003, Brown filed a complaint with the Health Claims Arbitration Office (HCAO). Based on Brown’s failure to move along the complaint for nearly three years, the HCAO issued a notice of contemplated dismissal of the claim. Brown failed to respond to the notice, and the HCAO dismissed Cartzendafner’s claim.
At a meeting two years later, Brown misrepresented to Cartzendafner that her claim was pending in arbitration. He did not tell her that the HCAO dismissed the case. Thereafter, Brown stopped communicating entirely with Cartzendafner, despite her continued requests for information. After Cartzendafner retained new counsel in January 2009, she learned for the first time that the HCAO dismissed her claim due to a lack of prosecution. She learned also from the new attorney that the statute of limitations had expired on the claim. Cartzendafner sent Brown a letter terminating his representation and requesting a copy of her file. Brown failed to respond to the letter.
In May 2004, Gustave Phoebus engaged Brown to prosecute a medical malpractice claim. Brown filed two complaints with the HCAO. However, the HCAO dismissed both complaints for lack of prosecution. The statute of limitations on both claims expired prior to being dismissed by the HCAO.
Phoebus submitted to Brown a written list of questions concerning his medical malpractice claims and asked to be provided with copies of the complaints filed with the HCAO. Brown failed to respond, prompting Phoebus to terminate him in January 2010 and to request a copy of the case file(s). Brown failed to send Phoebus a copy of the file(s). Additionally, Brown failed to respond to the Commission’s request for information about his representation of Phoebus.
The Commission filed a petition for disciplinary or remedial action against Brown arising from his representation of these four separate clients. The petition charge Brown with violation of Maryland Lawyers’ Rules of Professional Conduct (MLRPC): 1.1 (Competence); 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer); 1.3 (Diligence); 1.4(a) and (b) (Communication); 1.6(a) (Confidentiality of Information); 1.16(d) (Declining or Terminating Representation); 3.2 (Expediting Litigation); 8.1(a) and(b) (Admission and Disciplinary Matters); and, 8.4(c) and (d) (Misconduct).
The hearing judge concluded, by clear and convincing evidence, that Brown violated each MLRPC charged by the Commission, except MLRPC 1.6(a) and MLRPC 8.1(a). Neither party filed exceptions to the hearing judge’s findings of fact and conclusions of law.
The Court of Appeals disbarred Brown.

LAW: Generally, a violation of MLRPC 1.1 occurs if an attorney fails to act or acts in an untimely manner, resulting in harm to his or her client. See Attorney Grievance Commission v. Bleeker, 414 Md. 147 (2010); Attorney Grievance Commission v. Kwarteng, 411 Md. 652 (2009).
Here, Brown’s failure to pursue Phoebus’ and Cartzendafner’s claims in a timely manner caused the statute of limitations for their claims to expire by the time the HCAO dismissed their claims. Their claims were dismissed because Brown failed to prosecute them. Further, Brown failed to answer discovery requests in the cases of Sweitzer and Wallace/ABS.
Brown’s dilatory representation stripped Cartzendafner and Phoebus of their opportunity to pursue their claims and prejudiced Wallace/ABS and Sweitzer by precipitating discovery sanctions against them. Brown’s conduct violated MLRPC 1.1.
With respect to MLRPC 1.2(a), the Court of Appeals has held that an attorney who ignored client requests for updates about the client’s case or for a copy of their case files, and failed to prosecute a client’s case after filing a complaint, violated MLRPC 1.2(a). See Attorney Grievance Commission v. Reinhardt, 391 Md. 209, 218 (2008),
Similarly, Cartzendafner’s and Phoebus’ cases were dismissed for lack of prosecution due to Brown’s inaction. Brown failed subsequently to inform either client of the dismissals and ignored the clients’ repeated requests for information. Brown failed similarly in Sweitzer’s case to pursue the claim or to inform Sweitzer about the imposition of discovery sanctions imposed due to Brown’s inaction. Brown’s conduct violated MLRPC 1.2(a).
Brown’s conduct also violated MLRPC 1.3 in three ways. First, a lawyer who causes discovery sanctions to be imposed against his/her client due to his/her failure to answer discovery requests violates MLRPC 1.3, even if the sanction is lifted later. Atty. Griev. Comm’n v. Culver, 381 Md. 241 (2004). In the cases of Wallace/ABS and Sweitzer, Brown’s lack of diligence and promptness in answering the opposing parties’ discovery requests caused the judge in each case to issue sanctions against Brown’s clients.
Second, an attorney violates MLRPC 1.3 when he/she fails to pursue his/her client’s case by not prosecuting the claim after filing the complaint. See Attorney Grievance Commission v. McCulloch, 404 Md. 388, 398 (2008).
In the cases of Cartzendafner and Phoebus, the HCAO dismissed both cases due to lack of prosecution and Brown’s failure to respond to motions to dismiss, despite the clients’ expectations that Brown would pursue their claims.
Finally, a lawyer may violate MLRPC 1.3 if the lawyer fails to protect against expiration of the statute of limitations regarding his/her client’s claim. See Bleeker, 414 Md. at 170-71. Here, the HCAO dismissed Phoebus’ and Cartzendafner’s claims due to Brown’s laggard representation. Prior to dismissal, the applicable statute of limitations expired on those claims. Brown was aware expressly of the impending statute of limitations deadlines in both cases.
In McCulloch, the Court of Appeals concluded that an attorney violated MLRPC 1.4(a) when she failed to communicate with her client, including not advising her client about the status of efforts to serve the defendant and to respond to the opponent’s motion to dismiss. McCulloch, 404 Md. at 398. Brown similarly failed to tell Wallace/ABS and Sweitzer about the discovery sanctions against them, failed to notify Phoebus that his claims had been dismissed for lack of prosecution, and failed to respond to Sweitzer’s and Phoebus’s numerous case-status requests.
Furthermore, a lawyer’s failure to inform his or her clients about a pending or granted motion to dismiss violates MLRPC 1.4(b). Atty. Griev. Comm’n v. Hodgson, 396 Md. 1, 6 (2006). Brown did not advise Phoebus about the notice of contemplated dismissal issued in his claim. Similarly, he did not advise Wallace/ABS of the discovery sanctions and motion for default judgment against him.
When a client requests his or her file from an attorney at the end of the representation, MLRPC 1.16(d) requires the attorney to surrender the portions of the file (or a copy) to which the client is entitled. Atty. Griev. Common v. Edib, 415 Md. 696, 715-17 (2011). Brown failed to respond to his clients’ requests doe their case files after ending their engagements with Brown.
An attorney who fails to comply with discovery requests and attempts to mitigate his or her shortcomings with “cryptic excuses” violates MLRPC 3.2. Atty. Griev. Comm`n v. Steinberg, 395 Md. 337, 366 (2006). Brown offered two excuses for his neglect. However, both were unsupported and “cryptic.”
Further, Brown’s failure to comply with the discovery requests caused the trial judge to issue sanctions and a default judgment against Wallace/ABS, which violated also MLRPC 3.2. Atty. Griev. Comm’n v. West, 378 Md. 395, 405-07 (2003).
Under MLRPC 8.1(b), an attorney must answer timely requests from the Commission regarding a complaint in a potential disciplinary matter. Bleeker, 414 Md. at 173-74. Brown’s failure to reply to two Commission letters was, therefore, a violation of this rule.
MLRPC 8.4(c) prohibits an attorney from, among other things, making misrepresentations to his or her client. See, e.g., Atty. Griev. Comm’n v. Maignan, 423 Md. 191, 204 (2011). Brown misrepresented to Cartzendafner the status of her case. Brown advised her in 2008 that her case was still pending in arbitration before the HCAO. In fact, the HCAO dismissed her case two years prior for lack of prosecution. Therefore, Brown made a direct misrepresentation to his client and violated MLRPC 8.4(c).
A MLRPC 8.4(c) violation also occurs when an attorney conceals material information from his or her client, despite not misrepresenting explicitly the information. Bleeker, 414 Md. at 168-69. Brown advised Phoebus to dismiss one of his claims, which had been dismissed already for lack of prosecution. Second, Brown failed to advise Phoebus that his second claim had been dismissed for lack of prosecution. Phoebus learned from a third party that his claims had been dismissed and were time-barred. Thus, Brown misrepresented, by concealment, that Phoebus’s claims were pending and active with the HCAO.
Finally, the totality of Brown’s conduct amounted to a violation of MLRPC 8.4(d). See Atty. Griev. Comm’n v. Rose, 391 Md. 101, 111 (2006).
Accordingly, Brown was disbarred.

COMMENTARY: “It is well-settled that the purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules, and those sanctions demonstrate to members of the legal profession the type of conduct that will not be tolerated. [I]n every case, we consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances.” Attorney Grievance Commission v. Paul, 423 Md. 268, 283-85 (2011).
Mitigating circumstances include: “Absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.” Paul, 423 Md. at 285-86.
In Bleeker, the Court of Appeals disbarred an attorney who misrepresented the status and the time-bar of his client’s case, failed to file timely a complaint, and ignored Bar Counsel’s requests for information. Bleeker, 414 Md. at 168-75.
Other than the conditional diversion agreements, Brown has not been reprimanded or sanctioned previously. However, given the gravity and pervasiveness of Brown’s misconduct, Brown was disbarred to protect the public and the integrity of the legal profession in this State. See Atty. Griev. Comm’n v. Wallace, 368 Md. 277, 293 (2002).

PRACTICE TIPS: “[T]he issue of recusal in attorney discipline matters is within the province of the Court of Appeals,” not within the province of the hearing judge, and “[t]he party requesting recusal has a heavy burden to…prove that the judge has a personal bias or prejudice against him or her or has personal knowledge of disputed evidentiary facts.” Atty. Griev. Comm’n v. Shaw, 363 Md. 1, 10-11 (2001).

Professional Responsibility

Disbarment

BOTTOM LINE: Disbarment was the appropriate sanction for multiple violations of the Maryland Lawyers’ Rules of Professional Conduct, including the misuse of trust funds and misconduct involving fraud, deceit and dishonesty.

CASE: Attorney Grievance Commission v. Camus, Misc. Docket AG No. 15, September Term, 2011 (filed Apr. 23, 2012) (Judges Bell, Harrell, Battaglia, Adkins, Barbera & McDONALD). RecordFax No. 12-0423-21, 22 pages.

FACTS: Constance Camus was admitted to the Maryland Bar in 1997. She operated a solo practice focused on family law.
After obtaining a protective order against her son’s father, Robin Martin needed legal representation for a hearing in that case in the circuit court. Camus agreed to represent her at the hearing for a $2,000 fee, which was paid. At the hearing, Camus entered her appearance and negotiated a consent order.
After the proceeding, Camus and Martin discussed Martin’s pending custody action in the circuit court. Camus agreed to represent her in the custody action if Martin, who owned a cleaning service, would clean Camus’ home once a week. From August 2009 until January 2010, Martin cleaned and did chores at Camus’ home.
As the custody case proceeded, Martin continued to receive mailings directly from the court because Camus had not entered her appearance in the case. Because there was no attorney of record in the case, opposing counsel also sent notices and discovery requests directly to Martin. Camus never entered her appearance in the case.
When Camus did not attend a December 2009, hearing concerning a violation of the consent order, Martin found another attorney to represent her. The substitute attorney called Camus to request the case file. Camus said the file could be picked up from her home, but did not have it ready when Martin attempted to retrieve it. Camus eventually provided Martin with a few documents.
On February 2, 2010, Martin filed a complaint against Camus with the Attorney Grievance Commission. After two requests by Bar Counsel, Camus eventually provided a belated written response to the complaint.
In June 2009, Donna Eyles was in negotiations to settle her contested divorce. Camus thought that Eyles should challenge the enforceability of a prenuptial agreement. Eyles signed a retainer agreement, which set a rate of $250 per hour for Camus’ services, and paid a $3,000 retainer. Camus entered her appearance on behalf of Eyles.
In July 2009, Camus told Eyles that she had spent considerable time researching the enforceability of the prenuptial agreement and would require an additional $5,000 payment. Eyles sent the payment and requested a billing statement. Camus did not respond.
In August 2009, Eyles, who had recently moved to Texas, contacted Camus for advice about a joint bank account that she had with her estranged husband. Camus advised Eyles to take the money out of the account and transfer it into Camus’ trust account for safekeeping. Eyles transferred $11,900 from the joint account to Camus’ trust account.
Camus encouraged Eyles to hire a forensic psychologist to testify as to Eyles’ state of mind at the time she signed the prenuptial agreement. Camus also thought it necessary to hire a forensic accountant to testify about the couple’s financial assets and how they should be divided. Eyles called Camus to ask if she could pay the accountant’s fee from the funds in the trust account. She was told that Camus had taken those funds for legal fees.
In April 2010, unsatisfied with Camus’ representation, Eyles terminated the representation. Eyles’ successor counsel called Camus and asked for Eyles’ files. Camus stated that the files would not be released until Eyles paid her outstanding legal bills. As of that time, however, Camus had not provided Eyles with a billing statement of any kind.
Two days after Eyles had retained a new lawyer, Eyles filed a complaint with the Commission against Camus. Bar Counsel wrote Camus on May 25, requesting a response to the complaint. Before submitting her response, however, Camus sent Eyles a “final legal bill” totaling $100,096. The bill indicated that $19,900 had already been paid. The credited amounts included the initial $3,000 retainer fee, the $5,000 additional payment, and the $11,900 that Camus had taken from the trust account — resulting in a “balance owed” of $80,106.
Eyles’ new counsel was eventually able to obtain copies of the pleadings from opposing counsel. In July 2010, the parties reached a settlement that was less than the offer obtained by the counsel who had preceded Camus. The expert opinions obtained by Camus were deemed unhelpful and were not used in the negotiation of the settlement.
Meanwhile, Bar Counsel continued to seek information from Camus about Eyles’ complaint to the Commission. Camus submitted her response more than 15 months after it was requested and just two days prior to the hearing on the complaints against her.
The hearing judge concluded that, with respect to both clients, Camus had violated MRPC 1.3 (duty to act with reasonable diligence and promptness), 1.4(a) (duty to inform and consult with the client), 1.4(b) (duty to enable the client to make informed decisions), 1.16(d) (duty to protect client interests after termination), and 8.4(d) (prohibition against conduct prejudicial to the administration of justice).
With respect to Martin alone, the hearing judge also concluded that Camus had violated MRPC 1.2(a) (duty to abide by client decisions regarding objectives of representation) and 3.4(c) (duty to obey an obligation under the rules of a tribunal).
With respect to Eyles alone, the hearing judge concluded that Camus had violated MRPC 1.1 (duty to provide competent representation), 1.5(a) (prohibition on unreasonable fees), 1.15(a) (duty to keep safe funds of client or third parties), 1.15(d) (duty to notify concerning funds or property received), 8.1(b) (duty to respond to lawful demands for information from a disciplinary authority), 8.4(b) (prohibition against commission of a criminal act that reflects adversely on fitness), and 8.4(c) (prohibition against conduct involving dishonesty, fraud, deceit, or misrepresentation).
The Court of Appeals disbarred Camus.

LAW: The failure of Camus to enter an appearance in the Martin case, together with her failure to carry out her undertakings with respect to discovery, was “prejudicial to the administration of justice” in violation of MRPC 8.4(d), as it caused considerable confusion for opposing counsel, who was unable to rely on any of Camus’ actions or statements in the case because she was not the attorney of record.
Those failings also violated MRPC 1.3 and MRPC 3.4(c). The failure to enter an appearance caused both opposing counsel and the circuit court to send notices and other filings directly to Martin. With this correspondence entirely bypassing Camus, she could hardly fulfill the obligations of MRPC 1.4(a)(2), which required her to “keep the client reasonably informed about the status” of her case.
Under MRPC 1.2(a), it is professional misconduct to disregard a client’s decisions about the objectives of the representation. Camus failed to further any of Martin’s objectives. Moreover, by responding to Martin’s questions with threats to terminate the representation, Camus violated both MRPC 1.4(a)(2) and (3), under which an attorney must “promptly comply with reasonable requests for information.” By not explaining to Martin the need for timely completion of opposing counsel’s discovery requests, Camus failed to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,” a violation of MRPC 1.4(b).
MRPC 1.16(d) directs that “[u]pon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as…surrendering papers and property to which the client is entitled[.]” After obtaining another attorney, Martin made multiple attempts to retrieve her file from Camus, but the file was never prepared for her. Although Camus eventually provided her with a few items related to her case, Martin’s interests were not served by the provision of these limited documents or the delays in transmitting them.
MRPC 1.1 codifies the lawyer’s duty to provide competent representation. Viewed as a whole, Camus’ representation of Eyles fell below the standard of a competent practitioner.
The representation was also marked by a failure to communicate with her client. Camus failed to inform Eyles of court dates, and did not explain to her that documents given to the forensic psychologist would be discoverable by opposing counsel. Camus did not send Eyles a billing statement when she requested one. Camus did not keep Eyles “reasonably informed” about the status of her case or “promptly comply with reasonable requests for information,” as required by MRPC 1.4(a). By not making the discovery procedures clear, Camus also failed to “explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation,” as required by MRPC 1.4(b).
MRPC 1.5(a) prohibits the charging of “an unreasonable fee or an unreasonable amount for expenses.” Among the factors that may be considered under MRPC 1.5(a) are “the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service properly.” The hearing judge found properly found that Camus’ $100,096.48 legal bill was unreasonable and a violation of MRPC 1.5(a).
Furthermore, Camus did not notify Eyles’ husband or his counsel that she had received the funds that Eyles had transferred, thus violating MRPC 1.15(d). Camus later took the $11,900, in its entirety, for herself, purportedly for legal fees. She did this without informing Eyles or obtaining her permission, and without keeping any record of the transaction, in violation of MRPC 1.15(a).
Under MRPC 1.16, Camus had a duty to protect Eyles’ interests even after the termination of the representation. Camus refused to release files to Eyles’ new attorney until her fees had been paid, even though she had not yet provided Eyles with a bill.
In connection with the Commission’s investigation of her conduct, Camus failed to provide timely answers to Bar Counsel’s inquiries. She repeatedly missed deadlines and requested extensions. This consistent inability to comply with reasonable deadlines set by Bar Counsel violated MRPC 8.1(b), which states that a lawyer shall not “knowingly fail to respond to a lawful demand for information” from a disciplinary authority.
Finally, willful misuse of trust funds deposited in an attorney trust account is a criminal act. See BOP §§10-303, 10-606(b). In taking the $11,900 from the trust account for herself — without informing Eyles or receiving her authorization — Camus “committed a criminal act that reflects adversely on [her] honesty, trustworthiness or fitness as a lawyer in other respects” and therefore violated MRPC 8.4(b). Such misappropriation is also “conduct involving dishonesty, fraud, deceit or misrepresentation” in violation of MRPC 8.4(c).
Furthermore, in requesting a continuance of the hearing on the enforceability of the prenuptial agreement, Camus told the circuit court that extra time was needed because the forensic psychologist was unprepared. However, the psychologist indicated that he would be ready for the hearing and had, in fact, been prepared to testify. This false statement to the court also constituted “conduct involving dishonesty, fraud, deceit or misrepresentation.” These actions by Camus may likewise be characterized as “conduct that is prejudicial to the administration of justice” under MRPC 8.4(d).

COMMENTARY: “It has long been the rule…that absent compelling extenuating circumstances, misappropriation by an attorney is an act infected with deceit and dishonesty and ordinarily will result in disbarment.” Attorney Grievance Comm’n v. Vlahos, 369 Md. 183, 186 (2002).
The record revealed a pattern of conduct marked by indifference toward and neglect of clients, disregard of a court order, cavalier treatment of trust funds, and an unreasonable and retaliatory bill. Camus proffered various circumstances in mitigation, including that she was overburdened by her caseload, had a thyroid illness, and has now changed her ways by forswearing family law for a practice focused on entertainment law. She contended that her failure to enter an appearance in Martin’s case had a minimal practical impact, as she was present at all court proceedings that she was required to attend and opposing counsel understood her to be Martin’s attorney. She maintained that any misconduct that did occur in her representation of either Martin or Eyles was unintentional. These considerations, however, were not compelling enough to overcome the seriousness of the misconduct.
Thus, disbarment was the appropriate sanction.

PRACTICE TIPS: It is not a prerequisite to a violation of MRPC 8.4(b) (prohibition against commission of a criminal act that reflects adversely on fitness) to have been charged with or convicted of a criminal offense.

Zoning

Conflict with Master Plan

BOTTOM LINE: Approval of plaintiff’s amended development plan was properly denied because the plan conflicted with the Baltimore County Master Plan.

CASE: HNS Development, LLC v. People’s Counsel for Baltimore County, No. 85, September Term, 2011 (filed Apr. 23, 2012) (Judges Bell, HARRELL, Battaglia, Greene, Adkins, Barbera & McDonald). RecordFax No. 12-0423-23, 29 pages.

FACTS: Ann Langenfelder owned a 194-acre farm, containing a historic mansion, in Baltimore County. She sold the majority of the farm to the Longfield Estates Development Corporation (LEDC), but retained 13 acres comprised of two parcels, one containing the Mansion (Lot 42) and one adjacent to the Mansion (Parcel A).
In 1990, the Baltimore County Review Group (CRG) approved Phase I of the Longfield Estates development. Phase II of the development was delayed and, when submitted for consideration, referred to the County Planning Board because of a perceived conflict between the development proposal and the extant version (1989-2000) of the Baltimore County Master Plan.
After reviewing the potential Master Plan conflict, the Planning Board recommended that the CRG approve Phase II of the development, but under conditions that altered the location and configuration of some lots and restricted house siting and landscaping on nine lots as a means to maintain the scenic view.
Lot 42 and Parcel A were retained by Langenfelder, while the remaining 181 acres (owned by LEDC) were subdivided for single-family residential lots with the restrictive covenants. No definitive restrictive covenants were placed on Lot 42 or Parcel A; however Note 18 was placed on the approved Phase II final development plan, which provided that the Office of Planning and Zoning would not support future development on Lot 42 or Parcel A because it would be considered a conflict with the Master Plan.
Phase II of the development plan was approved by the CRG, as recommended by the Planning Board, in 1991 and the development was built-out over the ensuing years.
In 2004, Langenfelder died. Her estate sold Lot 42 and Parcel A to HNS Development, LLC (HNS). Later in 2004, HNS applied for a building permit to erect a dwelling on Parcel A. The Planning Board rejected the building permit as a “clear violation of the approved plan,” relying on Note 18 as support for this position.
In 2005, HNS submitted an amended development plan to the CRG, proposing to subdivide Lot 42 into two lots, one for the Mansion and one for a new dwelling, as well as a dwelling on Parcel A. The CRG denied HNS’ amended development plan. HNS appealed to the Board of Appeals the CRG’s denial of the amended development plan.
The Board of Appeals remanded the matter to the Planning Board for further review in determining the meaning and effect of Note 18 in relation to the amended development plan and whether a Master Plan conflict continued.
On remand, the Director of the Planning Board prepared a report for the Board of Appeals, concluding that the proposed amended development plan conflicted with the 1989-2000 and 2010 Master Plans. The Planning Board adopted the director’s report and concluded that no further subdivision or development were allowed on Lot 42 or Parcel A.
Pursuant to B.C.C. §22-18(b), the Planning Board forwarded its decision to the County Council, but did not recommend that the Council take any action to reserve or acquire the property. The County Council took no action either to disagree with the determination of a Master Plan conflict or to reserve the property. Receiving no response from the County Council, the Planning Board sent its findings to the Board of Appeals.
The Board of Appeals affirmed the Planning Board’s decision that the amended development plan conflicted with the Master Plan and should not be approved. The circuit court affirmed the Board of Appeals’ decision. The Court of Special Appeal affirmed the circuit court.
HNS appealed to the Court of Appeals, which affirmed the judgment of the Court of Special Appeals.

LAW: The Baltimore County Master Plan sets forth “comprehensive objectives, policies, and standards to serve as a guide for the development of the county.” Baltimore County Charter, §523. The Master Plan objectives and policies are incorporated into the development purposes and policies set forth in B.C.C. §§22-37 (Development Policies) and 22-38 (Development Purposes). B.C.C. §22-37 states that “[a]ll development of land must conform to the master plan and these regulations.”
When the CRG meets on a development plan, if it appears that the proposal conflicts with the Master Plan, the development plan must be referred to the Planning Board. B.C.C. §22-59(a)(1). After its review of the potential Master Plan conflict, the Planning Board files concurrently a written decision with the CRG and the Baltimore County Council. B.C.C. §22-60(b)(1). Unless the County Council overrules the Planning Board’s determination regarding the Master Plan conflict, the Planning Board’s decision is binding upon the CRG and must be incorporated into the CRG’s final action on a proposed plan. B.C.C. §22-60(c). Any person “aggrieved or feeling aggrieved by final action on a plan” may appeal to the Board of Appeals within 30 days of the date of the final action by the CRG. B.C.C. §22-61(a). On review by the Board of Appeals, “[t]he final action on a plan shall be presumed correct and the person aggrieved shall have the burden of persuasion to show that such action was arbitrary or capricious, procured by fraud, or otherwise illegal.” B.C.C. §22-61(d).
B.C.C. §22-38 provides that “[c]ompliance with the development regulations hereinafter set forth shall be deemed the fulfillment of the development policies set forth in section 22-37 and the purposes set forth in section 22-38.” The “development regulations” are set forth in B.C.C. §22-37 through §22-119. B.C.C. §22-40(b). Compliance with the Master Plan is considered a part of the development plan review and approval process. B.C.C. § 22-54(b).
The language of B.C.C. §22-38 is clear and unambiguous. A development plan must adhere to all of the development regulations and procedures, from B.C.C. §22-37 through B.C.C. §22-119, in order to meet the broad goals set forth in B.C.C. §22-37, which includes regulations addressing the Master Plan goals. In this statutory context, conformance to the recommendations of the Master Plan rises to the level of a regulatory device, rather than a mere recommendation. A conflict with the Master Plan obliges the CRG to defer to the Planning Board, whose decision must be incorporated in the CRG’s final action on the development plan.
When the Planning Board concluded there was a conflict with the Master Plan and recommended denial of the amended development plan, there was no possible way for the amended development plan proposal to be “deemed in compliance with the” development regulations.
The Baltimore County Code provides a process where the County Council, as part of the development review process, may place in reservation, for up to 18 months, a portion or all of the land involved in a development submission, thus delaying development while the County determines if it should acquire the property. Sycamore Realty Co. v. People’s Counsel for Balt Cnty., 344 Md. 57 (1996). The County Council may acquire through negotiation or condemnation the reserved property for public interest purposes, including open space, environmental preservation, playgrounds, or parks. Id; see also B.CC. §32-2-301(a)(2003). If the Planning Board concludes that the County should reserve all or part of the land, it must send a report and recommendation to the County Council. B.C.C. §22-18. If the County Council does not resolve to reserve all or part of the property, the inquiry ends as to whether a reservation is in the public interest, and the property may not be considered again for reservation by the local government for a period of two years. B.C.C. §22-18.
Here the County Council did not act to overrule the Planning Board’s conclusion that the amended development plan conflicted with the 1998-2000 and 2010 Master Plans; therefore, B.C.C. §22-60(c) mandates that that decision become part of the final CRG action.
The county agency tasked with determining whether a Master Plan conflict existed made its decision. This decision was not arbitrary or capricious, based as it was on analysis of the prevailing Master Plan at the time of the original development approval of Phase II of the Longfield Estates development in 1991, Note 18 appended to that plan, and the Master Plan in effect when the proposed amended development plan for Lot 42 and Parcel A was considered.
Nine parcels in the original Phase II Longfield Estates development plan were found to be in conflict with the Master Plan initially, but were not acquired by the County, presumably because to do so would not benefit the public. Moreover, the developer modified its development proposal for these lots so as to ameliorate the conflict and induce the County not to reserve the lots. Acquisition of a property is not the only mechanism for the County to protect its Master Plan goals. Reasonable restrictions on development, including limiting lot sizes, house siting, and numbers of lots, are implemented regularly and were not challenged here by HNS. These restrictions were implemented in the initial Phase II Longfield Estates development plan, approved by the CRG, in order to bring the development into conformance with the Master Plan. The Planning Board is maintaining presently a position it took originally in 1991 with regard to Lot 42 and Parcel A in order to protect the Master Plan-recommended viewshed of a historic property.
In Coffey v. Maryland-National Capital Park & Planning Commission, 293 Md. 24 (1982), the Prince George’s County Planning Board rejected a proposed subdivision plan because it did not conform to the Master Plan, and the Court of Appeal concluded that “when subdivision regulations require that a proposed subdivision comply with the master plan, an application for approval of a preliminary subdivision plan that fails to so comply must be rejected.” See also Maryland-National Capital Park & Planning Commission v. Greater Baden-Aquas co Citizens Association, 412 Md. 73, 102 (2009).
Thus, because HNS’ proposed development plan conflicted with the Master Plan, it was properly denied.

COMMENTARY: Under Rule 8-504(a)(5), a brief is to contain “[a] concise statement of the applicable standard of review for each issue, which may appear in the discussion of the issue or under a separate heading placed before the argument.” Moreover, Rule 8-504(a)(6) requires a brief to supply “argument in support of the party’s position on each issue.”
Rule 8-504(c) allows the Court of Appeals to “dismiss the appeal or make any other appropriate order with respect to the case,” in the event of noncompliance with Rule 8-504(a)(5). See also Rollins v. Capital Plaza Assocs., 181 Md. App. 188, 202 (2009); Kramer v. Mayor & City Council of Balt., 124 Md. App. 616, 634 (1999).
HNS argued that, when the Board of Appeals denied the amended development plan solely on the basis of a Master Plan conflict, a taking without just compensation occurred. However, HNS’ brief addressing this question did not cite any constitutional or common law authority for its position.
Considering the well-developed body of law addressing Fifth Amendment takings, including those applied specifically to regulatory takings, this omission was unacceptable and, therefore, this argument was waived.

PRACTICE TIPS: “[C]ourts will not, in the absence of constitutional mandate, render advisory opinions, [n]or will the courts render advisory opinions unless there is an actual justiciable controversy between the parties.” Md.-Nat’l Capital Park & Planning Comm’n v. Randall, 209 Md. 18, 27 (1956).