Maryland Court of Appeals
Criminal Procedure; Voir dire: Judgment of the Court of Special Appeals, which affirmed the judgment of the circuit court, reversed because trial court abused its discretion by asking compound “strong feelings” questions and refusing to ask properly-phrased “strong feelings” questions during voir dire. Gordon Collins v. State of Maryland, No. 54, Sept. Term, 2018.
Evidence; Open door doctrine: Where defendant testified on direct examination that he had never been in trouble before, defense counsel had opened the door for the State to introduce rebuttal evidence to rebut the image of defendant’s good character, but the prosecution’s questioning exceeded the scope of the open door doctrine. State of Maryland v. Harry Malik Robertson, No. 40, Sept. Term 2018.
Professional Responsibility; Disbarment: Disbarment was the appropriate sanction for attorney who made misleading representations to clients that he had performed work that he, in fact, had not performed; failed to take action to advance client matters despite requests to do so; failed to timely file a Petition to Caveat; failed to provide clients with timely invoices for work he performed for several years of representation; executed a new retainer agreement without client’s authorization; and used a recently obtained Power of Attorney to retroactively increase his hourly rate. Attorney Grievance Commission of Maryland v. Jonathan David Robbins, Misc. Docket AG No. 12, Sept. Term, 2017.
BOTTOM LINE: Judgment of the Court of Special Appeals, which affirmed the judgment of the circuit court, reversed because trial court abused its discretion by asking compound “strong feelings” questions and refusing to ask properly-phrased “strong feelings” questions during voir dire.
CASE: Gordon Collins v. State of Maryland, No. 54, Sept. Term, 2018 (filed April 2, 2019) (Judges Greene, WATTS, Hotten, Getty & Harrell (Senior Judge, Specially Assigned)) (Judges Barbera & McDonald, dissent).
FACTS: In the Circuit Court for Anne Arundel County, the State charged Gordon Collins with first-degree burglary and theft of property with a value of less than $1,000. During voir dire, the court asked the “victim” question and the “law enforcement agency” question, to each of which multiple prospective jurors responded. The court asked the following compound “strong feelings” questions: “Does anyone on this panel have any strong feelings about the offense of burglary to the point where you could not render a fair and impartial verdict based on the evidence?”; and “Does any member of this panel have strong feelings about the offense of theft to the extent that it would make you unable to be fair and impartial and base your decision only on the evidence in this case[?]”
None of the prospective jurors responded to either of the compound “strong feelings” questions. Collins’s counsel requested that the circuit court ask properly-phrased “strong feelings” questions, and the court refused. The jury was sworn and heard preliminary jury instructions and opening statements.
After a recess, the prosecutor advised the court that the compound “strong feelings” questions were improper, and proposed that the circuit court ask the jury properly-phrased “strong feelings” questions. Over Collins’s counsel’s objection, the circuit court did so. None of the jurors responded.
As a witness for the State, the victim testified that, on March 17, 2017, at approximately 11:20 p.m., she and her husband were in bed in their home when they heard someone downstairs. They called 911 and went downstairs to find the living room in disarray and several items missing. Sergeant Kenneth Brown responded and, on his way to the victims’ home, saw Collins walking in the opposite direction with a garbage. When Sergeant Brown turned around and headed back towards Collins, he saw Collins, who was no longer holding the garbage bag, walk back onto the sidewalk on the south side of the street.
Sergeant Brown stopped and spoke to Collins. After another officer arrived, Sergeant Brown checked the other side of a fence on one end of 408 Adams Street, and
found a garbage bag that contained items reported missing from the victims’ home. The jury found Collins guilty of first-degree burglary and theft of property with a value of less than $1,000. The Court of Special Appeals affirmed.
Collins appealed to the Court of Appeals, which reversed.
LAW: Voir dire is critical to implementing a defendant’s right to a fair and impartial jury. See Pearson v. State, 437 Md. 350, 356 (2014). “[I]n Maryland, the sole purpose of voir dire is to ensure a fair and impartial jury by determining the existence of specific cause for disqualification.” Id. at 356. To that end, “[o]n request, a trial court must ask a voir dire question if and only if the voir dire question is reasonably likely to reveal specific cause for disqualification.” Id. at 357.
“There are two categories of specific cause for disqualification: (1) a statute disqualifies a prospective juror; or (2) a collateral matter is reasonably liable to have undue influence over a prospective juror.” Id. at 357. “The latter category is comprised of biases [that are] directly related to the crime, the witnesses, or the defendant.” Id. at 357. One example of a question that is reasonably likely to reveal bias that is directly related to the crime is what is commonly called the “strong feelings” question—i.e., “‘Do any of you have strong feelings about [the crime with which the defendant is charged]?’” Id. at 354.
In Dingle v. State, 361 Md. 1, 8-9, 5-6 (2000), it was held that a trial court abused its discretion by asking during voir dire compound questions, such as: “[H]ave you or any family member or a friend been the victim of a crime, and[,] if the answer to that part of the question is yes, would that fact interfere with your ability to be fair and impartial in this case?” It was observed that a trial court “must decide whether, and when, cause for disqualification exists for any particular [prospective juror]. That is not a position occupied, or a decision to be made, by…the individual [prospective juror]s.” Id. at 14-15. In Dingle, the trial court “avoid[ed] examination of each affected [prospective juror] as to the admittedly relevant matters[,] and allow[ed] each such person to make his or her own call as to his or her qualification to serve.” Id. at 14. In other words, it was concluded that compound questions “usurped the [trial] court’s responsibility” to “determine, in the final analysis, the fitness of the individual” prospective jurors. Id. at 8-9.
The compound questions also “deprived [the defendant] of the ability to challenge…for cause” any prospective jurors who did not respond to the compound questions because the defendant lacked “information bearing on the relevant experiences or associations of” those prospective jurors. Id. at 21.
Nevertheless, it has also been held that trial courts abused their discretion by refusing to ask compound “strong feelings” questions. In State v. Thomas, 369 Md. 202, 204-05 (2002), it was held that a trial court abused its discretion by refusing to ask: “Does any member of the jury panel have such strong feelings regarding violations of the narcotics laws that it would be difficult for you to fairly and impartially weigh the facts at a trial where narcotics violations have been alleged?” In Sweet v. State, 371 Md. 1, 9-10 (2002), it was held that a trial court abused its discretion by refusing to ask: “Do the charges stir up strong emotional feelings in you that would affect your ability to be fair and impartial in this case?” And, in State v. Shim, 418 Md. 37, 40 (2011), it was held that a trial court abused its discretion by refusing to ask: “Does any member of the jury panel have such strong feelings concerning the violent death of another human being that you would be unable to render a fair and impartial verdict based solely on the evidence presented?”
Notably, “although Thomas, Sweet, and Shim postdate Dingle, in none of the three cases did the Court supersede Dingle; in Thomas, Sweet, and Shim, the Court did not address any issue regarding the ‘strong feelings’  questions’ phrasings.” Pearson, 437 Md. at 363-64. In Pearson, these cases were overruled to the extent that they required a trial court, on request, to ask the “strong feelings” question in compound form, and held “that, on request, a trial court must ask during voir dire: ‘Do any of you have strong feelings about [the crime with which the defendant is charged]?’”
Here, by asking compound “strong feelings” questions and refusing to ask properly phrased ones during voir dire, the circuit court prevented voir dire from fulfilling its purpose of “ensur[ing] a fair and impartial jury by determining the existence of specific cause for disqualification.” Pearson, 437 Md. at 356. Compound “strong feelings” questions are improper because they “‘shift from the trial court to the prospective jurors [the] responsibility to decide prospective juror bias.’” Id. at 362. Specifically, where a trial court asks a compound “strong feelings” question, “each prospective juror decides whether his or her strong feelings (if any) about the crime with which the defendant is charged would make it difficult for the prospective juror to fairly and impartially weigh the facts.” Pearson, 437 Md. at 362.
Compound “strong feelings” questions make it impossible to know whether any prospective juror, in fact, had strong feelings about the crimes with which the defendant was charged, yet determined for him- or herself that he or she could be fair and impartial despite his or her strong feelings. For example, here, although no prospective juror responded to the compound “strong feelings” questions, the record leaves us in the dark regarding whether any prospective juror had strong feelings about burglary and/or theft, but nonetheless judged him- or herself to be able to be fair and impartial.
Critically, by asking compound “strong feelings” questions, the circuit court failed to elicit significant information, in response to which Collins’s counsel could have followed up with further questions, and moved to strike prospective jurors for cause. Asking the selected jury properly-phrased “strong feelings” questions after preliminary jury instructions and opening statements was too little, too late. By the time that the trial was underway, it was impossible to recreate the circumstances that had existed during voir dire, and the circumstances were such that the selected jurors were less likely to disclose the existence of any strong feelings about burglary and/or theft. Thus, the circuit court abused its discretion by asking compound “strong feelings” questions and refusing to ask properly-phrased “strong feelings” questions during voir dire.
Accordingly, the judgment of the Court of Special Appeals was reversed.
COMMENTARY: The Court disagreed with the reasoning of the State and the Court of Special Appeals, that it was consequential that none of the prospective jurors responded to the “something in the past,” “sympathy, pity, anger, or any other emotion,” and “catchall” questions. These questions essentially constituted compound questions because they “‘shift[ed] from the trial court to the prospective jurors responsibility to decide prospective juror bias.’” Pearson, 437 Md. at 362 (quoting Dingle, 361 Md. at 21). The “something in the past” question required the prospective jurors to decide for themselves whether any prior experiences would “prevent” them from reaching a particular verdict “under any circumstances[.]” Similarly, the “sympathy, pity, anger, or any other emotion” question required the prospective jurors to decide for themselves whether any emotion would “influence” the verdicts. Finally, the “catchall” question required the prospective jurors to decide for themselves whether any matter that had not already been covered would prevent them from being “fair and impartial[.]”
Due to the way in which the circuit court phrased these three questions, it was impossible to know whether any prospective juror refrained from responding because, even though he or she was involved with a prior experience, emotion, or other matter that posed a threat to his or her ability to be fair and impartial, the prospective juror determined for him- or herself that the prior experience, emotion, or other matter would not prevent him or her from being fair and impartial.
To be clear, a trial court may ask the “something in the past,” “sympathy, pity, anger, or any other emotion,” and “catchall” questions. The point with regard to the “something in the past,” “sympathy, pity, anger, or any other emotion,” and “catchall” questions is that, contrary to the position of the State and the Court of Special Appeals, these questions did not substitute for properly-phrased “strong feelings” questions.
DISSENT: The dissent would have affirmed the judgment of the Court of Special Appeals because it carefully reviewed the voir dire process as a whole and concluded that the process adequately served the purpose of determining whether there were specific reasons to disqualify prospective jurors. In the dissent’s view, the opinion of the Court of Special Appeals applied the holding of Pearson in a sensible way that honors the underlying concern about the biases and prejudices that voir dire seeks to expose, as well as the concern about juror self-valuation.
PRACTICE TIPS: In the context of voir dire, “a prospective juror’s experience as the victim of a crime lacks a demonstrably strong correlation with a mental state that gives rise to specific cause for disqualification.” Pearson v. State, 437 Md. 350, 359 (2014).
Open door doctrine
BOTTOM LINE: Where defendant testified on direct examination that he had never been in trouble before, defense counsel had opened the door for the State to introduce rebuttal evidence to rebut the image of defendant’s good character, but the prosecution’s questioning exceeded the scope of the open door doctrine.
CASE: State of Maryland v. Harry Malik Robertson, No. 40, Sept. Term 2018 (filed April 2, 2019) (Judges Barbera, Greene, HOTTEN, Getty & Wilner (Senior Judge, Specially)) (Judges McDonald & Watts, dissent).
FACTS: On the evening of February 1, 2016, Harry Malik Robertson, then a student at Coppin State University, was involved in an altercation between two groups of men near the Morgan State University campus. The fight concluded after one of the participants, Gerald Williams (“the decedent”), was stabbed and ultimately died from his wounds.
A week earlier, Daequon Gordon purchased ten dollars’ worth of marijuana from Brandon Parker. Gordon purchased the marijuana with a counterfeit fifty-dollar bill and received the marijuana and forty dollars in return. When Parker learned that the fifty-dollar bill was counterfeit, he contacted Gordon and demanded his money back. A meeting was arranged, and both Parker and Gordon showed up to the meeting with friends. Among them was the decedent, who was one of Gordon’s friends, and Robertson, who was one of Parker’s friends.
Gordon, testifying for the State, contended that when the two groups met, he refused to pay Parker. Gordon then punched Parker, provoking a larger fight among the group. As Robertson and others ran from the area, the decedent collapsed and Gordon, observing that the decedent was bleeding, called an ambulance.
Another State witness, Isaiah McClin, who fought as part of the decedent’s group, testified that “all hell broke loose” after the groups met, and though he did not recall who was fighting, he heard the decedent yell something during the fight, shortly after which the fight abruptly ended. Although McClin did not see the stabbing, or observe Robertson in possession of a weapon, he recalled Robertson and the decedent fighting at some point.
D’ana Glenn, another witness for the State, testified that she observed the altercation and never saw a large group fighting with each other. Rather, Glenn testified, only Robertson and the decedent were fighting. She stated that she saw the decedent charge towards Robertson, and Robertson stab the decedent. Glenn conceded that her view of Robertson was not clear and that she only saw Robertson holding a knife after he and the decedent clashed.
Robertson denied stabbing the decedent and further denied having a knife. He contended that he fought two men during the fight: Mathew Agogo and McClin. Robertson testified that after the men dispersed, he told his cousin, Ron, who was also engaged in the fight, that they should leave. Robertson got into Ron’s car with their friends, including Abayomi Akinwold. At one point, the car stopped, Akinwold exited, and tossed a knife into a storm drain.
Robertson was arrested. James Alston, who was detained at the same facility as Robertson on a probation violation, testified that Robertson admitted that he had killed someone during a fight. Alston denied receiving anything in exchange for his testimony, but admitted that his probation violation had been dropped prior to Robertson’s trial.
On direct examination by defense counsel, Robertson testified that he had never been arrested before. On cross-examination, however, the State asked Robertson about a previous unrelated incident. Defense counsel objected, but the court allowed the question on the grounds that defense counsel’s questioning had opened the door to enable the State to inquire about the incident.
jury in the Circuit Court for Baltimore City found Robertson guilty of accessory after the fact to murder, but acquitted him of first- and second-degree murder and of carrying a weapon openly with intent to injure. The Court of Special Appeals reversed, holding that the trial court erred in permitting the State to question Robertson regarding his participation in a previous, unrelated incident during which a knife had been brandished because the door had not been opened for questioning by the State.
The State appealed to the Court of Appeals, which affirmed.
LAW: The open door doctrine is based on principles of fairness and serves to “balance any unfair prejudice one party may have suffered.” Little v. Schneider, 434 Md. 150 (2013). It authorizes parties to “‘meet fire with fire,’ as they introduce otherwise inadmissible evidence [henceforth, “rebuttal evidence”] in response to evidence put forth by the opposing side.” Id. at 157 (citing Terry v. State, 332 Md. 329 (1993)). The doctrine manifests the claim of, “[m]y opponent has injected an issue into the case, and I ought to be able to introduce evidence on that issue.” Clark v. State, 332 Md. 77, 85 (1993).
Here, the Court of Special Appeals observed that defense counsel’s questioning did not open the door, and if it did, the questioning was limited to rebuttal evidence pertaining to Robertson’s previous involvement with the justice system. Robertson, slip op. at 8. The Court of Special Appeals concluded that defense counsel’s questioning was narrowed by the context of Robertson’s engagement with the law. Id. at 0. Given the narrowed scope of questioning, had the door been opened, proportional rebuttal evidence could solely address Robertson’s previous engagement with the criminal justice system. Id. Because the previous incident did not result in any criminal charges, but merely related to Robertson’s suspension from Morgan State University, the Court of Special Appeals concluded that the trial court abused its discretion regarding the proportionality of the State’s rebuttal evidence. Id. at 11.
Defense counsel’s questioning was not specific to Robertson’s previous engagement with police, but was general in nature. He asked whether Robertson was ever in any kind of trouble as a juvenile. Counsel’s next question—“How about as an adult?”—carried over from the previous question, implying the same general questioning regarding Robertson’s character. The use of the term “any” expanded defense counsel’s questioning beyond Robertson’s previous engagement with the justice system. The Court of Special Appeals’s selective quotations from counsel’s questioning and Robertson’s arguments about the use of legal terminology were unconvincing to limit the State’s rebuttal evidence to Robertson’s criminal history.
The State, under the open door doctrine, was permitted to introduce evidence to rebut the image of Robertson as an upstanding individual who had never been in any trouble. See Md. Rule 5-404(a)(2)(A); see also Md. Rule 5-608(b). Such rebuttal evidence was within the ambit of the open door doctrine, and the trial judge properly determined that the door was open for rebuttal evidence. Beyond the issue of credibility, the general nature of defense counsel’s questioning generated an issue as to Robertson’s good character. Robertson attempted to benefit from his good character, which opened the door to the State’s questioning about his previous disciplinary action at Morgan State University.
However, though the State was entitled to question Robertson about the previous knife incident to rebut the assertion that he had never been in any trouble, the State improperly used the evidence throughout the trial. The State’s evidence exceeded the scope of the open door doctrine. Rather than simply introducing the previous incident to rebut Robertson’s general good character, the State elicited details about the incident. See Khan v. State, 213 Md. App. 554, 575 (2013) (holding that, under the open door doctrine, a party can use rebuttal evidence of a prior incident, but the rebuttal evidence cannot seek to elicit “details” of the prior incident). On multiple occasions throughout the exchange, Robertson clarified that he did not have a knife during the previous incident, nor was he the individual who pulled a knife during that incident. Regardless of this clarification, the State reiterated that Robertson wielded a knife and attempted to elicit details of the prior incident.
The State impermissibly expanded the scope of the open door doctrine and therefore, its use of rebuttal evidence was not a proportional response to the general good character that defense counsel painted. As such, the trial court abused its discretion regarding the proportionality of the response.
Accordingly, the judgment of the Court of Special Appeals was affirmed.
COMMENTARY: The State contended that defense counsel had opportunity to object to prejudicial statements during trial and failed to object to any questions about the previous incident. However, defense counsel adequately objected to the State’s use of the previous incident during cross-examination.
A party should object to each question or assert a continuing objection to an entire line of questioning. Ware v. State, 170 Md. App 1, 19 (2006). However, it has also been held that objections need not be reasserted if those objections “would only spotlight for the jury the remarks of the [State].” Johnson v. State, 325 Md. 511, 515 (1992).
Here, defense counsel immediately objected to the State’s inquiry pertaining the previous incident. When the judge overruled defense counsel’s objection, the State pursued a continuing line of questioning about Robertson’s participation in the previous incident. Continuing objections would have been futile and would likely “spotlight for the jury the remarks of the [State].” Id. As such, defense counsel’s initial objection to the State’s continuing line of questioning was sufficient.
DISSENT: According to the dissent, the Majority Opinion suggests that, in not interrupting and limiting the cross-examination sua sponte, the trial court “failed to follow guiding principles.” The dissent disagrees with the Majority Opinion’s apparent view that the trial judge abused his discretion when he failed to inject himself into the cross-examination because this would seem to establish a standard under which a trial court must act as back-up defense counsel (without the benefit of having defense counsel’s knowledge of where the questions will likely lead), and intervene sua sponte in a cross-examination or risk being found to have abused its discretion.
PRACTICE TIPS: “Although trial judges have wide discretion ‘in weighing relevancy in light of unfairness or efficiency considerations, trial judges do not have discretion to admit irrelevant evidence.’” Perry v. Asphalt & Concrete Services, Inc., 447 Md. 31, 48 (2016) (quoting State v. Simms, 420 Md. 705, 724 (2011)). Given that the open door doctrine is a matter of relevancy, which is a legal issue, the Court of Appeals reviews the question of whether a party opened the door to introduce rebuttal evidence de novo.
BOTTOM LINE: Disbarment was the appropriate sanction for attorney who made misleading representations to clients that he had performed work that he, in fact, had not performed; failed to take action to advance client matters despite requests to do so; failed to timely file a Petition to Caveat; failed to provide clients with timely invoices for work he performed for several years of representation; executed a new retainer agreement without client’s authorization; and used a recently obtained Power of Attorney to retroactively increase his hourly rate.
CASE: Attorney Grievance Commission of Maryland v. Jonathan David Robbins, Misc. Docket AG No. 12, Sept. Term, 2017 (filed April 3, 2019) (Judges Barbera, Greene, McDonald, Watts, Hotten, Getty & ADKINS (Senior Judge, Specially Assigned)).
FACTS: Jonathan David Robbins was admitted to the Maryland Bar in 1988. Upon admission, he began work with Ernst & Whinney and practiced law part-time. He is also licensed as a Certified Public Accountant and a Certified Financial Planner, holding professional financial specialist and global management accountant designations from the Association of International Certified Public Accountants. Robbins is a solo practitioner. He operates the Law & Accounting Offices of Jonathan D. Robbins, Chartered, a law/accounting/estate and financial planning business. Approximately 50% of his time is spent preparing income tax returns and providing representation to clients with matters brought by tax agencies. The remaining half of his time is focused on legal work involving trusts and estates, formation of business entities, and litigation over trusts and estates.
The Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) charging Robbins with violating the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) in his capacity as attorney for Shelba Bossom, Annette Torchinsky, and Helen Nutt. Specifically, Bar Counsel alleged that Robbins violated the following rules: (1) MLRPC 1.1 (Competence); (2) MLRPC 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer); (3) MLRPC 1.3 (Diligence); (4) MLRPC 1.4 (Communication); (5) MLRPC 1.5 (Fees); (6) MLRPC 1.6 (Confidentiality of Information); (7) MLRPC 1.7 (Conflict of Interest – General Rule); (8) MLRPC 1.8 (Conflict of Interest: Current Clients: Specific Rules); (9) MLRPC 1.15 (Safekeeping Property); (10) MLRPC 1.16 (Declining or Terminating Representation); (11) MLRPC 8.1 (Bar Admission and Disciplinary Matters); and (12) MLRPC 8.4 (Misconduct). Pursuant to Maryland Rules 19-722 and 19-727, this Court designated the Honorable Harry C. Storm of the Circuit Court for Montgomery County (“hearing judge”) to conduct an evidentiary hearing and make findings of fact and recommend conclusions of law.
In 1992, Robbins prepared estate planning documents for Shelba Bossom’s mother, Louise Sutherland, which named Bossom as successor trustee and sole beneficiary of Sutherland’s estate. Soon after Sutherland’s death in May 2012, it came to light that in July of 2007, Sutherland executed revised estate planning documents, which named Bossom’s daughter, DeLee Yaukey, and son-in-law, Kirk Yaukey, as successor trustees and personal representatives. The new documents set forth that Sutherland’s estate was to be equally divided between Bossom and her daughter.
Bossom executed two retainer agreements with Robbins on May 22, 2012. The first was for Bossom as personal representative of her mother’s estate and the second as trustee of her mother’s trust (“2012 Bossom Retainer Agreements”). Given the amendments that Sutherland made in 2007 to her estate planning documents, Bossom was no longer named personal representative or trustee. Robbins stated that he was hired “to find out what was happening in terms of the financial situation that Louise Sutherland left once she died.” The 2012 Bossom Retainer Agreements included provisions giving Robbins “the right to request replenishment of the retainer ‘so that representation may continue’” and the “unilateral right to withdraw from further representation” if invoices or statements were not paid within 30 days.
On June 26, 2012, Robbins informed Bossom that he had hired Eugene Kane, Jr., Esq. to assist with imminent litigation. Robbins represented that he was drafting documents to be filed with the court, affidavits, and a letter to DeLee. He also requested that Bossom replenish her retainer with $5,000. The hearing judge found, however, that there was no credible evidence showing that at the time of this communication Mr. Robbins was in fact drafting any court documents.
On July 10, 2012, Robbins communicated to Bossom that “the situation is urgent at this time” and “we must and will file the necessary challenges [to the 2007 Will] as soon as possible.” Yet, another three months passed before Robbins told Bossom that his part of the Caveat document was complete and that he had “almost finished with the Complaint document.” Finally, on December 15, 2012 Robbins again indicated that he “expect[ed] to be able to file the lawsuit against Mr. Yaukey very shortly.” The hearing judge found no credible evidence, either from Robbins’ time and billing entries or otherwise, to support this representation by Robbins.
Robbins ultimately filed a Petition to Caveat on December 19, 2012—seven days late. The Petition was dismissed as untimely. Bossom received notice of the dismissal on December 22, 2012 and emailed Robbins. The hearing judge found that no material work appears to have been performed in furtherance of Bossom’s case between July 24, 2012 when Mr. Morrison responded to Robbins’ letter and December 19, 2012, when Mr. Robbins filed the untimely Petition.
In September 2013, Robbins met with Robert Scanlon and retained Scanlon’s services as litigation counsel for Bossom against the Yaukeys. The court found that this was the first “meaningful action” Robbins took in 14 months. Scanlon drafted a complaint within weeks of being retained and sent it to Robbins for review. He also advised Robbins on September 19 that he had spoken with the Bossoms and they were ready to proceed. On September 28, Robbins provided a copy of the Complaint to Bossom and requested that she send $5,000 to cover fees and expenses as well as Scanlon’s fees.
Suit was filed on October 7, 2013 and identified both Robbins and Scanlon as counsel. The Complaint alleged, inter alia, that the 2007 trust agreement was procured by undue influence. The hearing judge found that there was no credible and reasonable explanation offered by Robbins for the delay in preparing and filing suit against the Yaukeys.
From May 2012 to May 2015, the attorneys’ fees and costs that Robbins charged Bossom were $219,330. During the course of his representation, Bossom paid Robbins $31,992. From April 22, 2015 to April 31, 2015—after Robbins had withdrawn his representation— he included further charges in a second invoice to Bossom totaling $21,200.
Bossom filed a complaint against Robbins with Bar Counsel in August 2015. Bar Counsel also obtained information from Scanlon and Edwards regarding observations and concerns they had about Robbins. A copy of the complaint was sent to Robbins on September 10, 2015 with a request that he provide a written response. In his response to Bar Counsel, Robbins stated that “Bossom (i) never requested a billing invoice during the pendency of the representation; (ii) that she had agreed verbally to an increase in his hourly rate[;] and (iii) that she authorized him to execute the July 2014 Agreement using the Power of Attorney.”
The hearing judge found that Robbins’ first statement was “misleading” and his “second statements were knowingly false and misleading.” Bar Counsel took Robbins’ statement under oath in July 2016 in which he testified that Bossom “did not want to see Mr. Scanlon’s bills, and that she authorized [Robbins] to sign the July 2014 Bossom Retainer Agreement.” The hearing judge found that these statements were “knowingly false and misleading.”
In November 2012, Annette Torchinsky contacted Robbins regarding representation on estate planning and tax matters. Torchinsky signed a retainer agreement14 (the “First Torchinsky Retainer Agreement”) on December 28, 2012 and gave Robbins an initial retainer of $3,500. The representation was “in connection with her estate planning, Income Tax Return preparation and other matters as she may refer to Robbins from time to time.” The First Torchinsky Retainer Agreement provided for fees and terms similar to those in the Bossom Retainer Agreement.
In June of 2014, Robbins and Torchinsky were involved in a sexual relationship. On May 27, 2013, Torchinsky executed a second retainer agreement for work to be done relating to Kindle Korp, LLC (the “Kindle Korp Retainer Agreement”). This retainer agreement only differed from the 2012 Torchinsky Retainer Agreement in that non-income tax matters were billed at $500 per hour and a $1,300 retainer was required. Robbins also handled a leasing matter for a rental property owned by Torchinsky. On June 8, 2013, in an email, she inquired how much this would cost and Robbins’ response was, “Let me work on the amount.”
In July 2013, as Torchinsky’s relationship with her siblings grew more contentious, Robbins told her that litigation was probable. Robbins began to discuss Torchinsky’s litigation needs with Robert Scanlon and continued to communicate with him regarding her issues. The pending litigation with Torchinsky’s siblings never materialized, but Robbins continued to engage in discussions with Torchinsky’s siblings and their counsel into 2014.
On alleged advice from Robbins, Torchinsky had taken out a home equity line of credit (“HELOC”). In July, he instructed her to pay him $50,000 out of her HELOC as a retainer. Torchinsky provided Robbins with two checks equaling $50,000 to replenish her retainer. Robbins used these funds to make regular payments to himself and three 18 payments to Scanlon’s firm. The court was not persuaded by Torchinsky’s testimony that Robbins had requested and maintained the $50,000 for future litigation.
In October of 2013, Torchinsky executed estate planning documents that Robbins had prepared for her. Approximately five months later, Robbins, allegedly at the request of Torchinsky, again prepared and attempted to have Irving execute a new retainer agreement, conflict waiver related to a durable power of attorney, and living will/health care power of attorney. Irving did not sign them.
The hearing judge found that from July 2013 through the summer of 2014, Robbins’ representation included much more than only preparing flat fee documents for Torchinsky. Torchinsky never asked Robbins for an invoice related to the disbursements from the $50,000 retainer. Robbins was able to pay himself without any accountability for two years because he failed to provide Torchinsky with billing statements. Regular invoices would have clarified what work was being performed on an hourly basis and what was being completed on a flat fee basis. Torchinsky terminated Robbins’ representation by letter dated July 7, 2015. In the letter, she itemized the work she believed to have been done on a flat fee basis. Robbins responded on July 9, 2015 acknowledging that some tasks had been done on a flat fee basis.
Helen Nutt was nearly 88-years old when she and her son, Randy Nutt, met Robbins to discuss estate planning matters. At the time, Nutt’s assets were valued at approximately $2 million to $2.5 million. Nutt fell in her home soon after retaining Robbins. She spent a week in Holy Cross Hospital, then was transferred to a rehabilitation facility, and finally settled in an assisted living facility. Nutt retained Robbins to represent her “for estate planning and other matters” on October 6, 2013 (“Nutt Retainer Agreement”). The retainer agreement set Robbins’ billing rate at “$350 per hour for most tax return preparation engagements and $500 per hour for all other matters.” Nutt paid an initial retainer of $3,500. In boldface type and underlined in the Nutt Retainer Agreement it was set forth that “[w]here possible, work will be done on an [sic] flat fee amount basis.”
The initial estate planning documents prepared for Nutt included a Durable Power of Attorney for the Property of Helen E. Nutt, a Living Will and Durable Power of Attorney for Heath Care Decisions of Helen E. Nutt, a Revocable Trust, Last Will and Testament, and amendments to the Helen Nutt Living Trust and the James Nutt Family Trust. Robbins identified himself as Helen Nutt’s “attorney and personal friend” and named himself as her agent or health care surrogate. He also was named as Trustee, personal representative, and co-trustee on the respective documents.
According to Robbins, Nutt suffered from several deficits including aphasia causing her speech to be impaired; mild dementia; short term memory loss; and inability to recall amounts, dates, and, eventually, to write checks. He also claimed that Nutt could not remember information about her income and expenses that he verbally provided to her because of a long-term deficit. As a result, Robbins stated that he “was actively involved in the management of her legal, financial and personal affairs.” He wrote checks and paid bills for Nutt, including paying himself, all the while charging her $500 per hour.
LAW: MLRPC 1.1 requires that lawyers provide competent representation to their clients. The hearing judge found that Robbins violated MLRPC 1.1 in his handling of the Bossom and Nutt matters. Regarding the Bossom matter, the hearing judge stated that Robbins violated Rule 1.1 when he: (i) failed to file a timely Petition to Caveat Ms. Sutherland’s Will and failed to take meaningful action to advance Ms. Bossom’s case from May 2012 through August 2013; (ii) falsely communicated to her on multiple occasions the status of his efforts on her behalf . . . ; (iii) increased her hourly billing rate effective January 1, 2013, without her knowledge or informed consent; (iv) used the Power of attorney to execute a new retainer agreement (which was also at the higher hourly rate) without authorization and disclosure; (v) acted in a manner that negatively impacted Ms. Bossom’s trust in her relationship with Mr. Scanlon through unfounded comments about Mr. Scanlon’s integrity; and (vi) failed to withdraw timely as attorney of record, when he knew he would be a necessary trial witness, and failed to advise Ms. Bossom of the problems inherent in his conflicting positions.
As to Robbins’ representation in the Nutt matter, the hearing judge concluded Robbins violated Rule 1.1 by: (i) “fail[ing] to file tax returns for her for tax years 2013, 2014, and 2015”; and (ii) “fail[ing] to complete the detailed financial plan from February 2015 until July 2016.”
Typically, when attorneys are accused of failing to withdraw from representation due to their necessity as a witness, such behavior is not evaluated under Rule 1.1, but under Rule 3.7. See, e.g., Attorney Grievance Comm’n v. Dyer, 453 Md. 585, 665, 670 (2017). In this case, Bar Counsel did not charge Robbins with violating Rule 3.7—the proper vehicle for such claims—and cited no cases establishing a “timeliness” of withdrawal requirement for competence. It was not apparent that Robbins’ withdrawal to serve as a witness prejudiced Bossom’s case in any manner, as other attorneys remained on her case. Therefore, the Court sustained Robbins’ objection to the hearing judge’s reliance on Robbins’ “failure to withdraw timely as attorney of record” as a basis for a Rule 1.1 violation in this circumstance.
MLRPC 1.2 requires that a “lawyer abide by a client’s decisions concerning the objectives of the representation and, when appropriate, consult with the client as to the means by which they are to be pursued.” It also provides that a “lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation,” and that a “lawyer shall abide by the client’s decision whether to settle a matter.”
The hearing judge determined that Robbins violated Rule 1.2 by attempting to “control all relevant decision-making.” Specifically, Robbins “viewed the case as ‘his case,’ not the client’s”; “exerted control over communications between Ms. Bossom and Mr. Scanlon”; “attempted to control the settlement of the case”; and “acted inappropriately and unprofessionally in trying to convince Shelba Bossom not to settle on the fourth day of trial.”
Robbins excepted to the hearing judge’s determination that he violated Rule 1.2, again arguing that the judge failed to make any findings that were inconsistent with Robbins’ testimony that he was acting with full knowledge of Ms. Bossom. The Court accepted the hearing judge’s findings on these matters as not clearly erroneous. The client must be appropriately informed to have the “ability to make informed decisions.” Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 182 (2015). Robbins’ actions prevented this and his exceptions were overruled.
Robbins also stated that any conduct occurring in the conference room during the trial happened after he withdrew from the case and, therefore, is “not subject to disciplinary review.” Even if he had technically withdrawn as counsel, he should have realized that his statements—made soon after his withdrawal, in the context of formal settlement negotiations, and pursuant to a long-term relationship with the client—were almost certain to appear to her to be made as part of his role as her attorney. In any event, the Court has disciplined attorneys in the past for violating Rule 1.2 for acts occurring after termination of the attorney-client relationship. See Attorney Grievance Comm’n v. Sacks, 458 Md. 461, 494 (2018).
MLRPC 1.5(a) provides in part that: “An attorney shall not make an agreement for, charge, or collect an unreasonable amount for expenses.” For a fee to be “reasonable,” it must be “commensurate with the legal services provided.” Attorney Grievance Comm’n v. Bellamy, 453 Md. 377, 397 (2017). Factors to be considered in determining reasonableness appear in Rule 1.5(a), subsections (1) through (8).
The hearing judge concluded that Robbins violated MLRPC 1.5(a) in the Bossom, Torchinsky, and Nutt matters. First, each of Robbins’ retainer agreements provided for different hourly rates for attorneys, paralegals and administrative personnel. Notwithstanding the language in the retainer agreements, Robbins, who did not have paralegals, legal assistants or administrative personnel, billed all time at his hourly attorney rate regardless of the task.
An attorney has engaged in professional misconduct and violated Rule 8.4(a) whenever he or she is found to have violated the Rules of Professional Conduct. See Attorney Grievance Comm’n v. Framm, 449 Md. 620, 664 (2016). Additionally, an attorney can violate Rule 8.4 by committing a “criminal act that reflects adversely on the attorney’s honesty, trustworthiness or fitness,” Rule 8.4(b); engaging in “conduct involving dishonestly, fraud, deceit or misrepresentation,” Rule 8.4(c); or “conduct that is prejudicial to the administration of justice,” Rule 8.4(d).
Robbins violated MLRPC 8.4(a), (c), and (d). Robbins violated numerous Rules of Professional Conduct and made misrepresentations in connection with this disciplinary proceeding. Finally, Robins’ conduct, taken as a whole, and involving multiple misrepresentations, brought the legal profession into disrepute. Such conduct was prejudicial to the administration of justice, and in violation of Rule 8.4(d).
It was concluded that Robbins demonstrated no compelling extenuating circumstances that would justify a lesser sanction. Accordingly, it was held that disbarment was the appropriate sanction.
COMMENTARY: When assessing the appropriate result in an attorney disciplinary matter, the Court often refers to the American Bar Association’s Annotated Standards for Imposing Lawyer Sanctions xvii (2015), which advises the consideration of four questions: (1) “What ethical duty did the lawyer violate?”; (2) “What was the lawyer’s mental state?”; (3) “What was the extent of the actual or potential injury caused by the lawyer’s misconduct?”; and (4) “Are there any aggravating or mitigating circumstances?” The respondent in an attorney disciplinary proceeding has the burden of demonstrating the presence of any mitigating factors by a preponderance of the evidence. Attorney Grievance Comm’n v. Joseph, 422 Md. 670, 695 (2011).
Robbins has never before been disciplined. This, however, was the only mitigating factor he was able to prove by a preponderance of the evidence. Moreover, there were multiple aggravating factors. First, Robbins had a dishonest or selfish motive when he profited by withholding information from his clients. Additionally, the three similar instances of misconduct that are the subject of the case constitute a pattern of misconduct and multiple offenses. Robbins was found to have made knowingly false statements to Bar Counsel. Moreover, he refused to acknowledge the wrongful nature of his conduct, instead shifting blame to others. Importantly, Nutt was a “vulnerable” client due to her old age and dementia diagnosis. Finally, Robbins had substantial experience, as he had been practicing law since 1988.
PRACTICE TIPS: Under Comment 1 to Rule 1.7, “Loyalty and independent judgment are essential elements in the attorney’s relationship to a client. Conflicts of interest can arise from the attorney’s responsibilities to another client or from the attorney’s own interests.” Rule 1.7(a)(2) specifically contemplates that a “significant risk” of materially limited representation is sufficient to cause a conflict.