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Opinions – 1/15/15: Maryland Court of Appeals

Professional Responsibility

Indefinite suspension 

BOTTOM LINE: Court of Appeals suspended indefinitely an attorney who violated Maryland Lawyers’ Rules of Professional Conduct by failing to communicate the scope of his representation and the amount of time billed to a client, failing to deposit an unearned retainer in a client trust account or escrow, and not responding to the lawful requests of bar counsel for information and a response to the complaints filed against him.

CASE: Attorney Grievance Commission v. Green, Misc. Docket AG Nos. 32 & 46, Sept. Term, 2013 (filed Dec. 22, 2014) (Judges Barbera, HARRELL, Battaglia, Greene, Adkins, McDonald & Watts). RecordFax No. 14-1222-20, 25 pages.

FACTS: John Green was admitted to the Maryland Bar on September 7, 1999. He was also licensed to practice law in the District of Columbia.

The Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed two petitions for disciplinary or remedial action against Green for alleged violations of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”).

On August 28, 2013, Green was served in the first case. A Status Hearing and Scheduling Conference were set for September 23, 2013. Both cases were referred to the circuit court to conduct a consolidated evidentiary hearing and file findings of fact and conclusions of law.

The Commission’s counsel, Raymond Hein, and Green appeared for the September 23rd hearing. By that time, a second disciplinary action had been filed against Green in the Court of Appeals. The Commission’s counsel and Green agreed on the record to consolidate the two disciplinary actions for trial, and a hearing was scheduled for December 16-17, 2013.

Green did not file an answer to either petition. He failed to appear for the pretrial hearing on December 2, 2013, and he did not appear when the case was called for trial on December 16, 2013, nor did he appear at any time that morning as the matter proceeded. The hearing was concluded on December 16, 2013. Following the hearing, the circuit court issued findings of fact and conclusions of law.

In its findings of fact, the court determined that the complainant in the first case, Mrs. V’Etta Ward, after hiring an attorney to assist her in the administration of her deceased husband’s estate, hired Green as a second attorney, for the purpose of preventing her daughter, Angela Ward, from coming into the house and “taking things.” Ward paid Green $125 as a legal consultation fee. On November 12, 2009, Mrs. Ward and Green signed a retainer agreement for Green to provide legal services in connection with “The Recovery of Assets for the Estate of James S. Ward, The Distribution of Requested Property and All Matters related Thereto.”

The agreement provided for payment of an initial retainer in the amount of $3,500, to be applied toward legal services to be billed by Green at a rate of $250 per hour. The agreement also provided that Green would provide Mrs. Ward with monthly interim invoices on a timely basis. The agreement further stated that Mrs. Ward would be invoiced a replenishing retainer of $1,250 once the advanced sum of $3,500 was expended.

On February 4, 2010, Ward paid Green’s initial retainer of $3,500 by check. Green did not deposit the check into an attorney trust or escrow account. The retainer amount had not yet been fully earned as of the date Green received the payment.

Meanwhile, Mrs. Ward sought Green’s additional legal guidance with regard to abandoning the residential property titled in her late husband’s name. The property was encumbered by two mortgages which in total exceeded the market value of the home. A petition to abandon was filed on February 1, 2011. On February 17, 2011, the Orphans’ Court approved an order granting Mrs. Ward’s request to abandon the property.

From the time of Mrs. Ward’s $3,500 retainer payment on February 4, 2010 until August 2011, Green did not send Mrs. Ward monthly or other periodic invoices. He did not inform her that her initial retainer was depleted, nor did he request a replenishing retainer from her, in that period. After the filing and granting of the petition to abandon property in February 2011, Green provided no additional legal services to Mrs. Ward.

Despite her repeated requests for invoices, it was not until August 11, 2011 that Green presented Mrs. Ward an invoice, which claimed a balance was due of $7,846 for legal fees and expenses. This was the first and only bill for services Mrs. Ward received from Green. On August 19, 2011, Mrs. Ward sent a letter to Green disputing his charges and reciting Green’s failure to provide monthly interim invoices in violation of this Retainer Agreement.

Not until May 29, 2012 did Green send Mrs. Ward a letter acknowledging her letter. In that letter, he demanded payment of $7,846 no later than June 5, 2012. Green’s letter raised the possibility of a collection action by his attorney if Mrs. Ward failed to comply.

After receiving Green’s payment demand, Mrs. Ward filed a grievance against Green with the Commission. On July 3, 2012, August 3, 2012, and October 12, 2012, the office of Bar Counsel re-sent an initial letter requesting a written response to Mrs. Ward’s enclosed complaint to Green. Green did not respond. Green also failed to respond to attempted communications by Commission Investigator Michael Peregoy.

The second petition against Green involved a family law matter in which Green represented Allen Young, the husband of complainant Nicole Jackson-Young. In November 2012, Nicole Jackson-Young’s complaint presented issues relating to Green’s conduct as counsel for her husband, Allen Young, Jr., at a protective order hearing on September 13, 2012 and in subsequent custody proceedings in the circuit court. On May 20, 2013, Ms. Jackson-Young and her attorney appeared in court for a deposition hearing as required. Green failed to appear with his client, necessitating continuance of the disposition hearing until June 3, 2013. Green did appear with his client on that date.

Following the consolidated hearing, the circuit court concluded that Green violated MLRPC 1.1 (competence), 1.4(a) (2)-(3) & (b) (communication), 1.5(a), 1.15(a), (c) & (d) (fees), 8.1(b) (failure to respond to requests from disciplinary authorities) and 8.4(a) & (d) (violation of the MLRPC). No exceptions were filed to the judge’s findings of facts or conclusions of law. The Commission recommended that Green be suspended indefinitely, and the Court of Appeals entered an order for Green’s indefinite suspension.

LAW: MLRPC 1.1 provides that a lawyer shall provide competent representation to a client. With regard to the abandonment of Mrs. Ward’s late husband’s residential property, although Green was unfamiliar with the specific legal principles and process at the outset, after consultation with a trusts and estates attorney and some legal research, he was able to file a petition to abandon that was accepted and acted upon favorably by the Orphans’ Court. Thus, the representation was competent and effective. Therefore, there was not clear and convincing evidence that Green violated MLRPC 1.1.

MLRPC 1.4 requires that lawyers communicate adequately with their clients and keep their clients informed about the progress of the representation. Green’s failure to provide Mrs. Ward the agreed-upon invoices, to request timely the agreed upon replenishing retainer, or to inform her of the amount of time he was expending on her representation did not provide Mrs. Ward with the information required to make informed decisions regarding continuance of the representation. Thus, the circuit court correctly concluded that Green violated MLRPC 1.4.

MLRPC 1.5 prohibits lawyers from charging unreasonable fees. Green’s failure to provide the agreed-upon monthly invoices, his failure to request the replenishing retainer, and his “bill” sent more than six months after the conclusion of the representation were unreasonable. It was also unreasonable, under the circumstances, for Green to bill the total amount of time he spent allegedly researching the law regarding how to abandon the residential property of Mrs. Ward’s late husband. Thus, the circuit court properly found that Green violated MLRPC 1.5(a).

MLRPC 1.15 concerns the safekeeping of client property. Green violated subsections (a) and (c) of MLRPC 1.15 when he failed to deposit Mrs. Ward’s retainer into a client trust or escrow account. Green violated subsection (d) of MLRPC 1.15 by failing to provide the monthly invoices that Mrs. Ward requested repeatedly.

MLRPC 8.1(b) prohibits, among other things, lawyers from failing knowingly to respond to the lawful demand for information from a disciplinary authority, i.e., Bar Counsel. Green failed to respond to multiple letters from the Office of Bar Counsel seeking a response to Mrs. Ward’s complaint. As such, Green violated MLRPC 8.1(b). MLRPC 8.4(a) provides that violations of the MLRPC constitute misconduct. By violating the other MLRPC provisions discussed previously, Green violated MLRPC 8.4(a).

In the Jackson-Young case, Green violated MLRPC 8.1(b) and 8.4(d) by his failure to answer Bar Counsel’s request for a response to Ms. Jackson-Young’s complaint. This conduct was prejudicial to the administration of justice, a violation of MLRPC 8.4(d), as well as a violation of MLRPC 8.1(b). The appropriate sanction for Green’s misconduct was indefinite suspension. An order for Green’s indefinite suspension was accordingly entered.

COMMENTARY: Indefinite suspension, with the right to apply for reinstatement in no sooner than 60 days, has been held to be the appropriate sanction for an attorney’s for lack of diligence in pursuing a client’s matter, failing to keep the client reasonably informed about the status of the representation, and failing to deposit an unearned retainer in a client trust account. See Attorney Grievance Commission v. Stillwell, 434 Md. 248, 274 (2013). While it is sometimes appropriate to state a minimum period of time that an attorney who has been suspended indefinitely must wait before he or she may apply for reinstatement to the Bar, where there is no evidence in the record bearing on the likelihood that the offending attorney may not repeat the misconduct, the Court of Appeals has refrained from specifying a minimum duration for an indefinite suspension. See Attorney Grievance Comm’n v. Kovacic, 389 Md. 233, 240 (2005). Because there was nothing in the record regarding the reasons for Green’s misconduct or the likelihood of recidivism, an open-ended indefinite suspension was appropriate.

 

PRACTICE TIPS: While failure to maintain records, pay third party medical providers with settlement proceeds, and maintain an escrow account to shield client funds from garnishment from personal financial difficulties has been held to constitute a violation of the Maryland Lawyers’ Rules of Professional Conduct regarding competence, not every mismanagement of client trust monies violates the rule regarding competence.

 

Professional Responsibility

Indefinite suspension

 

BOTTOM LINE: Attorney who abandoned a client, failed to communicate with his clients, made misrepresentations to a client and to Bar Counsel, and failed to cooperate with Bar Counsel’s investigation was indefinitely suspended from the practice of law.

CASE: Attorney Grievance Commission v. Brigerman, Misc. Docket AG No. 16, Sept. Term, 2013 (filed Dec. 18, 2014) (Judges BARBERA, Harrell, Battaglia, Greene, Adkins, McDonald & Watts). RecordFax No. 14-1218-20, 23 pages.

FACTS: Ronald Brigerman was admitted to the Maryland Bar in 2003. On May 14, 2013, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with the Court of Appeals a Petition for Disciplinary or Remedial Action against Brigerman, in connection with complaints filed by three of Brigerman’s former clients, Kent Brummell, Renee Copper, and Terry Holden. The matte was referred to a circuit court judge to conduct an evidentiary hearing and render written findings of fact and conclusions of law.

In her findings of fact, the hearing judge determined that In 2010, Kent Brummell retained Brigerman to defend him in a criminal prosecution. Brummell was found guilty and sentenced to 35 years of incarceration. In January 2012, Brummell filed a complaint with the Commission, citing Brigerman’s failure to provide him with copies of documents from his case file. The Commission commenced an investigation. In February 2012, Brigerman wrote a letter to the Commission stating that he never received Brummell’s requests for the documents, adding that he would forward the documents upon his receiving Brummell’s written request for the case file that included instructions on where to mail the file.

On February 23, 2012, Brummell sent Brigerman a request for the documents and instructions as to where to send the file documents. Brigerman did not reply to the request. The Commission sent letters dated May 17, 2012, June 6, 2012, and July 11, 2012, requesting that Brigerman respond to Brummell’s complaint. Brigerman received the letters, but did not reply.

Brigerman later told an investigator from the Commission that he would send the documents to Brummell and respond to the Commission’s letters. On August 17, 2012, Brigerman mailed Brummell’s documents, via certified mail, to the correctional facility in which Brummell was incarcerated. Brigerman did not, however, inform the Commission or the investigator that he had done so until the evidentiary hearing. Brigerman also failed to respond to subsequent communications from the Commission stating that the case would be formally docketed for an investigation and possible disciplinary action.

The hearing judge found that in March 2010, Renee Copper retained Brigerman to represent her in a personal injury claim resulting from an August 14, 2009, automobile accident. Copper eventually authorized Brigerman to accept a settlement offer of $10,000 made by the defendant’s insurance company. In May 2012, Progressive sent Brigerman a $10,000 settlement check made payable to Brigerman, and a dismissal of Copper’s case was filed.

Brigerman did not inform Copper of his receipt of the settlement check or the subsequent dismissal. Brigmerman failed to respond to Copper’s subsequent attempts to contact Brigerman about her case the settlement. On September 12, 2012, Copper ran into Brigerman by chance at a local store and questioned Brigerman about the settlement check. The following day, Brigerman deposited the check in Brigerman’s account and wrote Copper a check for her portion of the settlement proceeds. The Commission began investigating Copper’s complaint in August 2012. The Commission sent Brigerman letters dated August 2, 2012, September 4, 2012, October 2, 2012, October 16, 2012, and October 31, 2012. Brigerman not respond to the letters.

The hearing judge further found that on June 6, 2012, Terry J. Holden retained Brigerman to represent her as a defendant in a civil matter involving Holden’s alleged failure to pay for contractual services involving a home improvement project. The trial date was set for August 6, 2012, in the district court. Holden paid Brigerman a flat fee of $2,500 and provided him court documents and photographs of her home. Sometime later, Brigerman cashed the check without depositing or maintaining the fees in a trust account, without receiving Holden’s informed consent not to deposit or maintain the fees in trust.

Apart from a five-minute telephone call with a potential expert witness, Brigerman did not perform any additional work on Holden’s case. After the initial June 6, 2012, meeting, Holden attempted unsuccessfully to contact Brigerman. In August 2012, Holden filed a pro se notice of intention to defend her case in the district court. Thereafter, she filed a complaint with the Commission. Brigerman received, but did not respond to, letters from the Commission dated August 29, 2012, September 27, 2012, November 15, 2012, and November 27, 2012.

Based on these facts, the hearing judge concluded that Brigerman violated MLRPC 1.1 (competence); MLRPC 1.2 (scope of representation and allocation of authority between client and lawyer); MLRPC 1.3 (diligence); MLRPC 1.4(a) and (b) (communication); MLRPC 1.15(a), (c), and (d) (safekeeping property); MLRPC 1.16(d) (declining or terminating representation); MLRPC 8.1(a) and (b) (bar admission and disciplinary matters); MLRPC 8.4(a), (c), and (d) (misconduct); and Maryland Rule 16-604 (trust account – required deposits). The Court of Appeals found that the appropriate sanction was indefinite suspension. An order for Brigerman’s indefinite suspension was entered.

LAW: The Commission filed one exception to the hearing judge’s legal conclusion that Brigerman violated MLRPC 8.4(c) “by misrepresenting to Copper that he mailed her a letter containing a settlement breakdown.” Although the hearing judge’s factual findings supported that Brigerman made this misrepresentation, because the Commission did not charge Brigerman with a violation of MLRPC 8.4(c) in connection with his representation of Copper, the hearing judge was precluded from finding that Brigerman violated that rule while representing Copper. As such, this exception was sustained.

Brigerman violated MLRPC 1.1 (competence), in connection with his representation of Holden, when he accepted Holden’s fee and subsequently failed to provide her with competent or meaningful legal services. Brigerman took a $2,500 fee from Holden, yet he failed to perform any legal services on her behalf beyond a five-minute telephone call with a potential witness. In addition, the facts found by the hearing judge established that Brigerman failed to perform any meaningful legal services on Holden’s behalf after entering into a retainer agreement, thereby violating MLRPC 1.3, which provides that a lawyer shall act with reasonable diligence and promptness in representing a client. See Attorney Grievance Comm’n v. Bahgat, 411 Md. 568, 575 (2009). And, by failing to notify Copper in May 2012 that he had received the $10,000 settlement check and to promptly deliver the check to her, Brigerman violated MLRPC 1.3 and MLRPC 1.15(d) in connection with his representation of Copper.

MLRPC 1.4 requires, in part, that a lawyer shall keep the client reasonably informed about the status of the matter and promptly comply with reasonable requests for information. During the course of their representation by Brigerman, both Copper and Holden repeatedly tried, without success, to contact Brigerman. Brigerman failed to inform Copper about the settlement and dismissal of her case, and failed to respond to her multiple, reasonable requests for information as to the status of her case and the expected settlement. Those findings established that Brigerman violated MLRPC 1.4 in his representation of Copper and Holden.

MLRPC 1.15(a) and (c) provide that a lawyer shall hold property of clients or third persons that is in a lawyer’s possession in connection with a representation in a trust account, separate from the lawyer’s own property, unless the client gives informed consent, confirmed in writing, to a different arrangement. Maryland Rule 16-604 contains a similar provision. Brigerman violated Maryland Rule 16-604 by failing to deposit the monies into his attorney trust account. He violated MLRPC 1.15(a) by cashing the check and co-mingling his unearned fee with his own property. He violated MLRPC 1.15(c) by not obtaining Holden’s informed consent.

MLRPC 1.16(d) states that, upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client’s interests, such as giving reasonable notice to the client and surrendering papers and property to which the client is entitled. The hearing judge found that Brigerman failed to respond to the requests of Brummell’s and the Commission’s to return Brummell’s file documents between January 2012 and August 2012. Thus, notwithstanding that Brigerman eventually returned those documents to Brummell, Brigerman violated MLRPC 1.16(d). See Attorney Grievance Comm’n v. Page, 430 Md. 602, 631 (2013). Brigerman also violated MLRPC 1.16(d) in connection with his representation of Holden when Brigerman effectively abandoned her without notice.

By failing to respond to a total of 14 letters from the Commission regarding the complaints of Brummell, Copper, and Holden, Brigerman violated MLRPC 8.1(b) in connection with his representation of those clients. By his actions, Brigerman also violated MLRPC 8.4(d) (conduct prejudicial to the administration of justice). He likewise violated MLRPC 8.4(a), which states that it is professional misconduct for a lawyer to violate or attempt to violate the MLRPC.

The appropriate sanction for Brigerman’s misconduct was indefinite suspension, and an order for Brigerman’s indefinite suspension was accordingly entered.

COMMENTARY: The Commission recommended the sanction of disbarment, while Brigerman recommended a sanction of a reprimand. Brigerman effectively abandoned his representation of Holden when he took a fee from her and failed to perform any meaningful work on her matter. Brigerman also neglected all three complainants when he failed to communicate with them or respond to their reasonable requests for information. Accordingly, Brigerman committed the same violations as the attorneys in two case in which disbarment was held to be the appropriate sanction. See Attorney Grievance Comm’n v. Lara, 418 Md. 355 (2011); Attorney Grievance Comm’n v. Tinsky, 377 Md. 646 (2003). Brigerman’s misconduct was further exacerbated by his violations of MLRPC 8.1(a) and 8.4(c), which were not present in Lara and Tinsky.

Significantly, however, the hearing judge found that Brigerman was experiencing personal problems, stemming from his divorce and child custody proceedings, during the time of his misconduct. Prior to these difficulties, Brigerman never had been formally disciplined. And, unlike the attorneys in Lara and Tinsky, Brigerman returned his unearned fees. Thus, while Brigerman’s misconduct was severe, taking into account the mitigating factors, the appropriate sanction was an indefinite suspension.

PRACTICE TIPS: Disbarment is the default sanction in cases of intentional dishonesty, misappropriation cases, fraud, stealing, and serious criminal conduct.