A unanimous Maryland high court has disbarred an Annapolis attorney who compounded his failure to file an appeal as promised by not only declining to tell his business client about the court’s resulting dismissal of the case but then lying about trying to reinstate the appeal.
Thomas McCarthy Jr. also violated legal ethics by representing a client while suspended from the practice of law for having failed to pay his annual dues to the Client Protection Fund, the Court of Appeals ruled. In addition, McCarthy failed to cooperate with the Office of Bar Counsel in its investigation of his ethical misdeeds, the court held in its 7-0 decision Thursday.
In stripping McCarthy of his law license, the court stated that “disbarment is generally the appropriate sanction for intentionally dishonest conduct.”
View Point Medical Systems LLC’s breach-of-contract claim against another company was headed to the 4th U.S. Circuit Court of Appeals when the health care technology firm retained McCarthy in April 2016, according to the high court’s opinion.
The 4th Circuit notified McCarthy of its June 2, 2016, deadline for filing View Point’s opening brief in its appeal of the district court’s grant of summary judgment for the defendant, Athena Health Inc.
When McCarthy missed that deadline, the 4th Circuit warned him the appeal would be dismissed for “failure to prosecute” if he did not file the brief or move for a time extension by June 23, 2016.
McCarthy missed that final deadline as well — despite Jonathan Radding, View Point’s owner, having texted him on June 22 and 23 for an update on the appeal’s status.
McCarthy texted back, “Jon for God’s sake I am drafting and filing the brief and record extract,” the high court said, citing the findings of the judge it appointed to hold a hearing in the attorney’s disciplinary proceeding.
McCarthy, who was admitted to the Maryland bar in 1989, did not tell Radding of the 4th Circuit’s June 24 dismissal of the appeal, even after Radding texted him for an update several times over the next month.
Instead, McCarthy texted back, “Sorry, I can’t talk right now,” according to the hearing judge, Anne Arundel County Circuit Judge Glenn L. Klavans.
After learning of the dismissal on his own, Radding asked McCarthy what he intended to do. McCarthy texted back that he was “working on reinstating the case and (a) modified briefing schedule,” Klavans stated in his findings.
“McCarthy never drafted or filed a motion to reinstate the appeal or took any other steps to protect View Point’s claim,” Judge Shirley M. Watts wrote for the high court. “The hearing judge found that McCarthy’s statement ‘was a knowing and intentional misrepresentation made in an attempt to placate Mr. Radding and conceal the fact that the respondent (McCarthy) had not actually made any effort at all to reinstate View Point’s appeal.’”
Prior to View Point’s appeal, Radding had retained McCarthy in October 2015 to represent him in a personal foreclosure proceeding that was pending in Anne Arundel County Circuit Court. In March 2016, the Court of Appeals temporarily suspended McCarthy from the practice of law in Maryland courts due to nonpayment of the annual assessment.
(The high court’s administrative suspension for non-payment did not prevent McCarthy from representing clients in federal court.)
McCarthy failed to tell Radding of the suspension, continued to provide legal guidance to him and spoke with representatives of the mortgage servicing company as Radding’s attorney, the high court said. McCarthy’s dues-related suspension ended in February 2017, the court added.
Radding submitted a complaint to bar counsel in October 2017.
McCarthy failed to respond to bar counsel’s inquiries on at least five occasions, including instances in which the attorney said he would respond, the high court said.
In disbarring McCarthy, the Court of Appeals concluded he had violated Maryland Attorneys’ Rules of Professional Conduct pertaining to diligence; communicating with the client; unauthorized practice of law; failure to respond to bar counsel; dishonesty, fraud, deceit or misrepresentation; and conduct prejudicial to the administration of justice.
McCarthy did not respond to a telephone message seeking comment on the court’s decision.
Bar Counsel Lydia E. Lawless declined to comment on the ruling.
The high court rendered its decision in Attorney Grievance Commission of Maryland v. Thomas McCarthy Jr., Misc. Docket AG No. 72, September Term 2019.