BOTTOM LINE: Defendant’s conviction and sentence for assault with intent to murder were illegal because that crime was not contained in the indictment returned by the grand jury.
CASE: Johnson v. State, No. 84, September Term, 2011 (filed July 10, 2012) (Judges Bell, Harrell, Battaglia, Greene, ADKINS, Barbera & McDonald). RecordFax No. 12-0710-21, 26 pages.
FACTS: In March 1992, police officers executed a search warrant at an apartment in the 600 block of Baker Street in Baltimore. When the officers entered the apartment, gunfire erupted, and they saw Jarmal Johnson firing an automatic weapon in the direction of the officers. They also found large amounts of cocaine and heroin.
Johnson was arrested, and the arresting officer prepared a “statement of charges” that listed assault with intent to murder along with approximately ten other charges. That charge was not included in the indictment returned by the grand jury, however. Rather, the indictment charged four crimes: (1) attempted murder, (2) common law assault, (3) unlawful wearing, carrying, or transporting of a handgun, and (4) unlawful use of a handgun in the commission of a felony or crime of violence.
Before hearing Petitioner’s plea, the trial court asked the attorneys to “go over what the offenses are and what the maximum penalties are[.]” In the discussion that followed, the attorneys did not mention assault with intent to murder.
Similarly, in opening statements, the attorneys mentioned attempted murder and other crimes, but did not mention assault with intent to murder. The verdict sheet prepared for the jury at the close of evidence, however, included assault with intent to murder. The trial court also instructed the jury about the crimes on the verdict sheet, including assault with intent to murder.
The jury acquitted Johnson of attempted murder, but found him guilty of (1) assault with intent to murder, (2) common law assault, (3) unlawful use of a handgun in the commission of a felony or crime of violence, and (4) unlawful wearing, carrying, or transporting of a handgun. Johnson did not object, at trial, to the jury instructions or guilty verdict for assault with intent to murder.
At sentencing, the trial court imposed a 30-year sentence for assault with intent to murder, merging common law assault into that conviction. The court also imposed a 20-year consecutive sentence for the use of a handgun in a felony or crime of violence, merging unlawful wearing, carrying, or transporting a handgun into that conviction.
Johnson filed a direct appeal but did not argue that his conviction or sentence for assault with intent to murder was illegal.
In January 2008, Johnson filed a motion to correct an illegal sentence, arguing that his sentence for assault with intent to murder was illegal because the indictment did not charge that crime. The circuit court denied the motion. The Court of Special Appeals affirmed.
Johnson appealed to the Court of Appeals, which reversed.
LAW: Rule 4-252(d) provides: “A motion asserting failure of the charging document to show jurisdiction in the court or to charge an offense may be raised and determined at any time.” Under Rule 4-345(a), the court may correct an illegal sentence at any time. “If a sentence is ‘illegal’ within the meaning of [Rule 4-345(a)], the defendant may file a motion in the trial correct to ‘correct’ it, notwithstanding that…the sentence was not challenged in a timely-filed direct appeal. The sentence may be attacked on direct appeal, but it also may be challenged collaterally and belatedly, and, if the trial court denies relief in response to such a challenge, the defendant may appeal from that denial and obtain relief in an appellate court.” Chaney v. State, 397 Md. 460, 466 (2007).
To constitute an illegal sentence under Rule 4-345(a), “the illegality must inhere in the sentence itself, rather than stem from trial court error during the sentencing proceeding.” Matthews v. State, 424 Md. 503, 512 (2012). Accordingly, “we have denied relief pursuant to Rule 4-345(a) because the sentences imposed were not inherently illegal, despite some form of error or alleged injustice.” Id. at 513.
“There is one type of illegal sentence which this Court has consistently held should be corrected under Rule 4-345(a). Where the trial court imposes a sentence or other sanction upon a criminal defendant, and where no sentence or sanction should have been imposed, the criminal defendant is entitled to relief under Rule 4-345(a).” Alston v. State, 425 Md. 326, 339 (2012).
In Walczak v. State, 302 Md. 422 (1985), the trial court ordered the defendant Walczak, as a condition of probation, to pay restitution to a victim of a crime (armed robbery) of which Walczak had not been convicted. Walczak failed to object in the trial court to the restitution, and the Court of Special Appeals held that Walczak had waived the issue. This Court, however, held that the restitution order was not authorized by statute and that it should not have been imposed. The Court further held that it was an illegal sentence, and, under Rule 4-345(a), it should be corrected despite the failure to object in the trial court.
Johnson argued that the trial court did not have the power to render a verdict and impose a sentence on the uncharged offense of assault with intent to murder. Johnson’s claim goes to the trial court’s power or authority, and thus may be raised “at any time” under Rule 4-345(a).
Furthermore, a motion to correct an illegal sentence under Rule 4-345(a) is not waived even if “no objection was made when the sentence was imposed” or “the defendant purported to consent to it[.]” Chaney, 397 Md. at 466. Thus, although Johnson may have acquiesced to his conviction and sentence at trial, his claim was not waived.
Because Johnson’s motion to correct illegal sentence was not waived and could be raised “at any time” under Rule 4-345(a), the next issue was the legality of his conviction and sentence for assault with intent to murder.
The State contended that Johnson’s conviction and sentence for assault with intent to murder were proper because the indictment was “constructively amended” to include that charge.
Rule 4-204 provides: “On motion of a party or on its own initiative, the court at any time before verdict may permit a charging document to be amended except that if the amendment changes the character of the offense charged, the consent of the parties is required.” See also Brown v. State, 285 Md. 105, 108 (1979).
The purpose of Rule 4-204 is to prevent any unfair surprise to the defendant and his counsel. Rule 4-204’s prevention of “unfair surprise” fulfills a constitutional requirement contained in Art. 21 of the Maryland Declaration of Rights that each person charged with a crime must be informed of the accusation against him. State v. Morton, 295 Md. 487, 490-91 (1983). Thus, any amendment outside the confines of the rule will not be allowed.
Rule 4-204 does not permit the State to add new charges to an existing indictment. Rather, the “‘[a]mendments’ contemplated by Rule 4-204 are changes, alterations, or modifications to an existing charge in an existing charging document.” Tracy v. State, 319 Md. 452, 456-57 (1990). If the State desires to charge a defendant with additional crimes, it must “file additional charging documents charging new offenses.” Id. at 457.
The amendment in this case was not allowable, under Rule 4-204, because it added a new charge to an existing indictment, thereby leaving a conviction on a charge not contained in the indictment. Thus, the trial court erred in convicting Johnson of assault with intent to murder because that crime was not contained in the indictment.
Accordingly, the judgment of the Court of Special Appeals was reversed.
COMMENTARY: When the illegality of a sentence stems from the illegality of the conviction itself, Rule 4-345(a) dictates that both the conviction and the sentence be vacated See State v. Griffiths, 338 Md. 485 (1995).
Johnson’s sentence on assault with intent to murder was illegal because the conviction itself was illegal. Therefore, both the sentence and the conviction were vacated.
At the time Johnson was convicted, the crime of unlawful use of a handgun in the commission of a felony or crime of violence was defined in Article 27, Section 36B(d): “Any person who shall use a handgun…in the commission of any felony or any crime of violence…shall be guilty of a separate misdemeanor[.]”
After vacating Johnson’s conviction for assault with intent to murder, no “crime of violence,” as defined in the statute, stands to support his conviction for use of a firearm during the commission of a felony or crime of violence. Yet the jury found Johnson guilty, under a separate indictment, of three other felonies not affected by the holding: (1) possession with intent to manufacture and distribute heroin, (2) possession with intent to manufacture and distribute cocaine, and (3) wearing, carrying, or transporting a firearm during and in relation to a drug trafficking crime.
Thus, the record showed the factual and legal predicate for Johnson’s conviction for use of a handgun during the commission of a felony or crime of violence.
PRACTICE TIPS: “[M]ere delay is not sufficient to constitute laches, if the delay has not worked a disadvantage to another. Prejudice or injury to the party raising laches is an essential element.” Howell v. Brummell, 293 Md. 646, 649-50 (1982).
BOTTOM LINE: Disbarment was the appropriate sanction for an attorney who engaged in a pattern of misconduct that included the abandonment of paying and pro bono clients and denying to bar counsel that she represented one of the pro bono clients, as that conduct was dishonest and prejudicial to the administration of justice.
CASE: Attorney Grievance Commission of Maryland v. Dominguez, Misc. Docket AG No. 47, September Term, 2011 (filed July 3, 2012) (Judges Bell, Harrell, BATTAGLIA, Greene, Adkins, Barbera & McDonald). RecordFax No. 12-0703-20, 21 pages.
FACTS: In June 2006, Denese Dominguez began to serve as a volunteer attorney for the Homeless Persons Representation Project (HPRP). HPRP staff members assigned Dominguez the duty of completing expungement petitions pro bono on behalf of several homeless persons.
At the November 2009 HPRP attorneys’ meeting, Dominguez appeared without her clients’ files and requested permission to send her prepared expungement petitions to HPRP prior to the December 2009 attorneys’ meeting. By December 2009, HPRP had not received the completed expungement petitions that Dominguez had promised to submit.
On December 15, 2009, Dominguez and HPRP client, George A. Lee, both signed an HPRP retainer agreement and Mr. Lee’s expungement petition. On June 29, 2010, Antonia Fasanelli, HPRP Executive Director, filed a complaint with the Attorney Grievance Commission. Dominguez provided a response to Ms. Fasanelli’s complaint and denied that George Lee was her client.
On January 24, 2011, Dominguez entered into a conditional diversion agreement. By signing the agreement, Dominguez acknowledged engaging in professional misconduct that violated Rules 1.1, 1.3, 1.4(a), 1.16(d), and 8.4(d) of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC). Under the agreement, Dominguez agreed to a course of remedial action that required her compliance with the terms of the agreement, including the monitoring of her practice by a law practice monitor, expressly conditioned on Dominguez not engaging in any further conduct that would constitute professional misconduct.
During the pendency of the agreement, Bar Counsel received two related grievance complaints alleging additional misconduct by Dominguez. In July 2011, the Attorney Grievance Commission, having concluded that Dominguez was in material default of the agreement, revoked the agreement pursuant to Rule 16-736(f)(3). In October 2009, Dominguez was retained by Wanda M. Suter to represent Suter in an employment matter related to wrongful termination on a contingency fee basis. On January 4, 2010, Dominguez filed suit on behalf of Suter in the circuit court against Suter’s former employer’s property management company, HP Properties Management.
In May 2010, HP Management filed a motion for sanctions and/or a motion to compel after Dominguez failed to respond to discovery that had been served upon her in April 2010. The court ordered Dominguez to answer HP Management’s discovery within thirty days. On July 19, 2010, Dominguez filed an answer to HP Management’s discovery.
In October 2010, Dominguez was ordered to answer all interrogatories related to Suter’s expert witness within fifteen days. Dominguez failed to do so and, as a result, Suter was ordered to pay $250.00 in attorney’s fees to HP Management and produce full and complete responses to HP Management’s discovery request.
Sometime in late January 2011, Dominguez decided that she could not handle Suter’s case anymore. However, she failed to terminate her representation.
In late January 2011, Dominguez incorrectly informed her client that she did not need to appear in court on February 1, 2011 for a hearing. Dominguez did not appear either. The court issued a show cause order for Dominguez’s failure to appear and ordered that both parties appear in court for a hearing. Dominguez failed to appear at the hearing or show cause on behalf of Suter. The court issued an order assessing fees against Dominguez in the amount of $1,200.00 for HP Management’s counsel and Suter’s former employer in the amount of $280.00. In addition, the judge referred the matter to the Attorney Grievance Commission for investigation. Suter also filed a complaint with the Commission against Dominguez.
The Commission filed a petition for disciplinary or remedial action against Dominguez alleging that Dominguez violated (MLRPC) 1.1, 1.3, 1.4, and 8.4(a) and (d).
The hearing judge concluded that Dominguez violated Rules 1.1, 1.3, 1.4, 1.16(d), 8.1(b), and 8.4(a), 8.4(c) and (d).
The Court of Appeals disbarred Dominguez.
LAW: Because neither party filed any exceptions, the hearing judge’s findings of fact were established by clear and convincing evidence, pursuant to Rule 16-759(b)(2)(A). Attorney Grievance v. Tinsky, 377 Md. 646, 653 (2003).
As to the conclusions of law, Dominguez violated Rules 1.1, 1.3, 1.4(a), 1.16(d), and 8.4(d) based not only on the hearing judge’s specific findings, but also upon Dominguez’s admissions of misconduct and violations of the specified Rules contained in the conditional diversion agreement. See Attorney Grievance v. Brown,__Md.__ (2012). The Rules violations also constituted a violation of Rule 8.4(a), because “it is well established that various rule violations, of themselves, are sufficient to support a violation” of Rule 8.4(a). Attorney Grievance v. Seltzer, 424 Md. 94, 114 (2011).
Rule 8.1(b) prohibits knowingly failing to respond to a lawful demand for information from Bar Counsel. Dominguez violated this Rule by failing to respond to Bar Counsel’s demands for information for her progress with respect to the conditional diversion agreement as well as after its revocation. See Attorney Grievance v. Nelson, 425 Md. 344, 362 (2012).
Dominguez also violated Rules 8.4(c) and (d), prohibiting conduct that is dishonest and prejudicial to the administration of justice, respectively, based on her denial to Bar Counsel of representing Mr. Lee, one of her clients through HRRP, even though she signed a retainer agreement with Mr. Lee. This was clearly a false statement and was, therefore, a violation of Rules 8.4(c) and (d). See Attorney Grievance v. Payer, 425 Md. 78 (2012).
With respect to the complaints regarding Dominguez’s representation of Ms. Suter, Rule 1.1 requires an attorney to provide competent representation on behalf of her clients. Dominguez failed to respond to repeated discovery requests, even after a court order to do so, resulting in sanctions against Ms. Suter. Moreover, Dominguez advised her client not to attend a hearing and did not appear herself. Finally, Dominguez did not attend the show cause hearing. Her failure to respond to discovery requests and to appear for required hearings are actions that violate Rule 1.1. See Attorney Grievance v. Brady, 422 Md. 441, 457 (2011).
Dominguez also violated Rule 1.3, which requires an attorney to act with reasonable diligence and promptness when handling client matters, because she failed to respond to opposing counsel’s discovery requests after having been ordered to do so by the circuit court. See Tinsky, 377 Md. at 651.
Rules 1.4(a)(2) and (a)(3) require an attorney to keep a client reasonably informed as to the status of the client’s matter and to promptly respond to client requests for information about the client’s case. Dominguez failed to respond to Suter’s repeated requests for information over a period of four months. See Attorney Grievance v. Nelson, 425 Md. 344 (2012). Therefore, Dominguez violated Rules 1.4(a)(2) and 1.4(a)(3).
Dominguez violated Rule 8.4(d) based on Dominguez’s failure to attend hearings on behalf of Ms. Suter and Dominguez’s failure to withdraw her representation in a timely manner. See Attorney Grievance v. Mooney, 359 Md. 56, 83 (2000).
Dominguez violated Rule 8.4(a) based on her violation of the aforementioned Rules in connection with her representation of Ms. Suter. Violations of other Rules of Professional Conduct constitutes a violation of Rule 8.4(a). Seltzer, 424 Md. at 114.
COMMENTARY: Section 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions sets forth aggravating factors, four of which were relevant here: (c) a pattern of misconduct; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; and (h) vulnerability of victim. Seltzer, 424 Md. at 116-17.
With respect to factor (c), Dominguez neglected the welfare of at least five clients at HRRP and also neglected Ms. Suter’s suit. Dominguez’s acts of neglect involved multiple clients over a period sixteen months, thereby implicating a “pattern of misconduct.” See Attorney Grievance v. Coppola, 419 Md. 370, 406 (2011).
Dominguez provided false information to Bar Counsel during the initial investigation of HRRP’s claims, implicating factor (f). Dominguez failed to respond to lawful requests from Bar Counsel during the investigation following Ms. Suter’s complaint, implicating factor (e). See Attorney Grievance v. Nelson, 425 Md. at 364.
Finally, factor (h) was implicated with respect to Dominguez’s representation of her homeless clients, who are clearly victims, because the homeless lack the resources and the capability to safeguard their own interests. See In re Allen, 949 P.2d 710 (Or. 1997).
The purpose of imposing sanctions for violations of the Rules of Professional Conduct is to protect the public. Seltzer, 424 Md. at 116. In Attorney Grievance v. Fox, 417 Md. 504 (2010), the Court of Appeals considered the issue of an appropriate sanction for an attorney who had violated the same Rules that Dominguez violated. The Court held that the appropriate sanction was disbarment, because “[t]he 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 is unfit to practice law.” Id. at 544-45.
Accordingly, Dominguez was disbarred.
PRACTICE TIPS: In the context of professional responsibility, other aggravating factors include: “(a) prior disciplinary offenses; (b) dishonest or selfish motive; (d) multiple offenses; (g) refusal to acknowledge wrongful nature of conduct; (i) substantial experience in the practice of law; and (j) indifference to making restitution.” See §9.22 of the American Bar Association Standards.
BOTTOM LINE: Disbarment was the appropriate sanction where attorney had previously been disbarred and, after reinstatement, engaged in intentionally dishonest conduct.
CASE: Attorney Grievance Commission of Maryland v. London, No. 12, September Term, 2011 (filed July 10, 2012) (Judges Bell, Harrell, Battaglia, Greene, ADKINS, Barbera & McDonald). RecordFax No. 12-0710-20, 28 pages.
FACTS: Gregory Kane was introduced to Perry London in April, 2006 by Gladys Basilio in connection with the transfer of the real property located at 813 N. Carey Street from Ms. Basilio to Mr. Kane. Mr. Kane paid London $450 in cash on April 27, 2006 which represented the pre-payment of attorney fees at a rate of $150 per hour.
Representing Ms. Basilio, London wrote to the Baltimore Housing Authority on April 27, 2006 and to the City Solicitor’s Office on May 11, 2006. A handwritten note contained in London’s file, dated April 27, 2006, indicated that once the title to the property was cleared, a recorded deed was to be forwarded to Friendly Outreach Services, Inc. The next activity in the file showed that the docket entries for the tax redemption case 24-C-99-005261 were printed on September 28, 2006, that a search of the State’s Department of Assessments and Taxation Real Property Database was completed on April 3, 2007, and that a search of the City of Baltimore Tax Certificate Auction website was completed on May 15, 2007. There was no evidence that Mr. London ever prepared a deed for this property. There was no evidence documenting any other communication with Mr. Kane regarding this property.
A second file for the property located at 813 N. Carey Street was created sometime in 2007. As of December 24, 2007, London was on notice that title to the property had not been transferred to Mr. Kane or to Friendly, his company. Lien Certificate Number 0570326, issued on December 28, 2007 at the request of London, indicated that a deed could not be recorded until clearance was obtained from the Tax Sale Section.
On June 26, 2008 Mr. London wrote to the tenant at 813 N. Carey Street on behalf of Friendly, providing formal notice to the tenant to vacate the premises. A copy of the notice was sent to Friendly. On December 11, 2008, London applied again for a lien certificate, which was issued on December 15, 2008. There was no other activity recorded in this file until April 1, 2010 when an inquiry was made to the Maryland Department of Assessments and Taxation Real Property Database which indicated that the property located at 813 N. Carey Street was still titled to Gladys Basilio. There was no evidence documenting any other communication with Mr. Kane. There was no evidence that London ever prepared a deed for this property.
In July 2006, Mr. Kane and Marriam Robinson agreed on the sale of property located at 2701 Classen Avenue in Baltimore City for a price of $11,000. Mr. Kane and Ms. Robinson came to London with a signed option agreement for the sale and an anticipated settlement date of August 20, 2006. By September 27, 2006, London knew or should have known that there were a number of outstanding liens on the property, that real property taxes had not been paid since 2003, that there may have been additional delinquent taxes for years prior to 2003, and that Marriam Robinson was the personal representative of the Estate of Clifford Robinson, Jr., the recorded owner of the property.
On October 13, 2006, London wrote to Ms. Robinson to discuss the liens, property taxes and water bills. There was no evidence that there was any communication with Mr. Kane regarding this development. As of March 30, 2007, $6,025 was required for Mr. Robinson’s estate to redeem the property for unpaid taxes. On December 11, 2008, London completed an application for a lien certificate for the Classen Avenue property, listing Clifford Robinson as the owner.
There was no evidence of any action on the case after this date, nor any communication with Mr. Kane, Ms. Donigan, or any of their agents.
A file was opened for 428 Mosher Street on or about April 3, 2007, when a search of the State of Maryland Department of Assessments and Taxation Real Property Database was conducted. On June 18, 2007 Shameka Littles transferred title to this property to Friendly in a deed prepared by London. There was no evidence that this deed was ever recorded.
On September 9, 2009 Mr. Kane faxed to London nine pages related to a petition to foreclose right of redemption filed by Harbor Pier Homes, LLC for the property located at 428 Mosher Street. On September 30, 2009, London filed an answer on behalf of Littles, representing that she was the title holder and owner of the property and intended to redeem the property. $11,533 was due as of November 3, 2009 to redeem the property. There were no other documents in the file other than the court’s order dated March 23, 2010 denying the petition to redeem. There was no documentation of any communication between London and Mr. Kane or his agents regarding this property.
There was a file regarding 809 N. Carey Street which indicated that London received a fax from the City of Baltimore Department of Finance, Collection Division regarding this property on September 19, 2007. There was no evidence of any other activity until April 1, 2009 when a search was run on the Maryland Department of Assessments and Taxation Real Property Database. There was no documentation of any communication between London and Mr. Kane or any of his agents regarding this property.
There was a file regarding 2123 Division Street, a distressed property which may have been purchased by Friendly Outreach Services through a tax sale. Respondent’s Exhibit #6 indicates that a Petition to Foreclose Rights of Redemption, filed by someone other than Mr. London in May 2005, was dismissed in March 2008 for lack of prosecution. On December 15, 2008 Mr. London obtained the tax lien record for the property. There was no documentation of any communication between Mr. London and Mr. Kane or his agents regarding this property.
The Attorney Grievance Commission filed a petition for disciplinary or remedial action against London. The hearing judge concluded that London violated Maryland Lawyers’ Rules of Professional Conduct (MLRPC) Rules 1.1, 1.3, 1.4, and 8.4
The Court of Appeals disbarred London.
LAW: London broadly asserted that the hearing judge failed to take into consideration the fact that London had moved his offices and all records were in storage and, therefore, he did not have accessibility to the stored records.
The hearing judge recognized and dealt with the lack of records in her memorandum opinion. Ultimately, however, the hearing judge held the lack of records against London, finding that he was not as credible in his testimony in part because of his poor and incomplete records. See Att’y Grievance Comm’n v. McGlade, 425 Md. 524, 540 (2012).
Furthermore, sound record-keeping is an essential part of competent representation, and an attorney’s failure to keep or produce records can itself lead to a violation of the MLRPC. See, e.g., Att’y Grievance Comm’n v. Taylor, 405 Md. 697, 718 (2008).
Rule 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in representing a client.” The hearing judge concluded that London’s “neglect,” “repeated failure to monitor the work,” and lack of “activity” on several client matters constituted a violation of Rule 1.3. The failure to consistently monitor and manage a client’s business is a classic example of a Rule 1.3 violation. See, e.g., Att’y Grievance Comm’n v. Fox, 417 Md. 504, 523 (2010).
London argued that his conduct did not display neglect or a lack of diligence because he continued to monitor the various undertakings requested by the client. That may be so, but monitoring without diligent action is still a violation. See Att’y Grievance Comm’n v. Lee, 390 Md. 517, 526 (2005). London failed to take action in the 813 N. Carey Street matter for periods of 7 months (September 2006 to April 2007); 5 months (January 2008 to June 2008); and 16 months (December 2008 to April 2010); and in the 2701 Classen Avenue matter for a period of 21 months (March 2007 to December 2008). Such neglect is a violation of the diligence norm.
Moreover, by failing to prepare an authorization for Littles, London “neglected to perform” the necessary services for his client, which also constitutes a violation of Rule 1.3. See Att’y Grievance Comm’n v. Patterson, 421 Md. 708, 737 (2011). This exception was overruled.
London noted an exception to the hearing judge’s conclusion that he violated Rule 8.4. “It is professional misconduct for a lawyer to…(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” The hearing judge concluded that London’s misrepresentations regarding the 813 N. Carey Street matter constituted misconduct under Rule 8.4.
London contended that no misrepresentation occurred because he simply did what Kane requested, which was to prepare a deed to transfer 813 Carey Street. He did not take the extra step of recording the deed because Mr. Kane is experienced in real estate and was able to undertake the recording of the deed and Mr. Kane sought to minimize the costs of all legal representation and therefore, avoid or at least reduce costs by recording the deeds himself.
Although Kane may have been able to record the deed himself, Kane testified that London told him that he had “filed the deed” and that he “has the deed and it’s taken care of.” These statements were contrary to London’s characterization of an agreement in which London would prepare a deed and Kane would file it. Moreover, Kane testified that he never received any deeds from London. Thus, regardless of whether London prepared a deed and didn’t file it or never prepared it at all, his misrepresentation of the work he had performed clearly constituted a violation of Rule 8.4(c). See Att’y Grievance Comm’n v. Reinhardt, 391 Md. 209, 222 (2006).
At the very least, London failed to communicate regarding a material fact of his representation concerning 813 N. Carey Street. The failure to communicate a material fact with a client, when done in a misleading way, is a violation of Rule 8.4(c). See Att’y Grievance Comm’n v. Brown, ___ Md.___ (2012) (Misc. AG No. 1, September Term, 2011) (filed April 23, 2012).
Again, London’s failure to keep adequate records clearly played a role in the hearing judge’s conclusion, as she observed that there was no copy of the deed that London claimed to have prepared. With no reason to doubt the hearing judge’s finding that Kane was a more credible witness than London, the evidence was sufficient to support a violation of Rule 8.4(c).
London noted an exception to the hearing judge’s conclusion that he violated Rule 1.4, which provide: “A lawyer shall…keep the client reasonably informed about the status of the matter.” Rule 1.4(a)(2).
The hearing judge concluded that London’s general lack of communication with Kane, combined with his misrepresentation regarding 813 N. Carey Street, constituted a violation of Rule 1.4. London’s misrepresentation alone constituted a violation of Rule 1.4. See Att’y Grievance Comm’n v. Webster, 402 Md. 448, 469 (2007). This exception was overruled.
As a sort of summary of London’s violations of the MLRPC, the hearing judge concluded that London failed to provide competent representation under Rule 1.1.
Rule 1.1 requires, among other things, the “thoroughness and preparation reasonably necessary for the representation.” An important part of a lawyer’s thorough preparation is keeping detailed, accurate, and accessible records. See Att’y Grievance Comm’n v. Agiliga, 422 Md. 613, 616 (2011).
London may have kept perfectly good records, but because he moved them into storage in such a way that prevented access to them, they were of no use. Without reasonable access to a client’s records, a lawyer cannot hope to meet the standard of “thoroughness and preparation necessary for the representation.” Rule 1.1. Thus, London’s failure to maintain accessible records constitutes a violation of Rule 1.1.
COMMENTARY: “[W]hen it appears that the attorney has engaged in intentional dishonest conduct…disbarment will be the appropriate sanction absent compelling extenuating circumstances.” Att’y Grievance Comm’n v. Keiner, 421 Md. 492, 523 (2011).
London was previously disbarred in 1977. Furthermore, London presented no mitigating circumstances.
In Att’y Grievance Comm’n v. Lane, 367 Md. 633 (2000), the Court of Appeals disbarred a lawyer for misrepresentations to his clients. The lawyer had “failed to diligently act on his clients’ behalf and he then compounded this failure by engaging in a pattern of deceitful and lying conduct designed to conceal his lack of diligence.” Id. at 647.
Kane testified that London met with him as many as 10 times about the 813 N. Carey Street matter, each time representing that he was working on transferring and filing the deed, but never completed the task. Such “continual deceit” could “herald problems for [the lawyer’s] future clients.” Id.
Accordingly, London was disbarred.
PRACTICE TIPS: “[A]n attorney violates Rule 8.1(b) when he fails to make a timely and orderly reply even though the failure was because of disorganization in his record keeping practices.” Att’y Grievance Comm’n v. Taylor, 405 Md. 697, 718 (2008).