Maryland Court of Appeals
Consumer Protection; private right of action: Where there was no private right of action under a Baltimore City statute prohibiting unlicensed landlords from collecting rent, tenants could not sue their landlord under the statute for the rent it collected while it was unlicensed. Aleti v. Metropolitan Baltimore LLC, No. 39, Sept. Term, 2021 (filed July 28, 2022).
Consumer Protection; private right of action: Although a Baltimore City statute does not allow tenants to sue landlords to recover rent collected during a period it was unlicensed, because the statute does not create a private right of action, tenants could sue the landlord under state consumer protection statutes for engaging in debt collection activity or pursuing ejectment actions against a tenant who failed to pay rent during the unlicensed period. Assanah-Carroll v. Law Offices of Edward J. Maher PC, Misc. No. 11, Sept. Term, 2021 (filed July 28, 2022).
Domestic relations; best interest of the child: Where the juvenile court did not hold a hearing to allow the parties to present evidence concerning whether father was able and willing to provide proper care for the minor child, and that the custody arrangement that was in his best interest, before awarding sole legal and physical custody to father, the case must be remanded to that court for further proceedings. In re: T.K., No. 60, Sept. Term, 2021 (filed July 28, 2022).
Medical malpractice; apparent agency: Where a hospital impliedly represented that a trauma surgeon was its agent, an injured person relied on that representation in seeking treatment at the trauma center and the reliance was reasonable, the hospital was liable for the surgeon’s negligence, even though he was actually an independent contractor. Williams v. Dimensions Health Corporation, No. 42, Sept. Term, 2021 (filed July 28, 2022).
PIA; administrative records exception: Where the online Maryland Case Search system does not include the names of judges on the District Court in Baltimore City, a code key that matches codes to those judges must be produced to a requester. The code key was not exempt from disclosure under the exception for certain administrative records in Maryland Rule 16-905(f)(3). Administrative Office of the Courts v. Abell Foundation, No. 48, Sept. Term, 2021 (filed July 28, 2022).
Sanctions; indefinite suspension: Where an attorney failed to terminate a representation due to a conflict of interest; sent her client a 20-page letter containing numerous antisemitic, personally insulting, profane and otherwise inappropriate comments and made a false claim to bar counsel about the letter, she was indefinitely suspended from the practice of law. Attorney Grievance Commission of Maryland v. Maiden, Misc. Docket AG No. 72, Sept. Term, 2020 (filed July 28, 2022).
Sanctions; disbarment: Where an attorney violated numerous provisions of the Maryland Attorneys’ Rules of Professional Conduct when she lied to her clients, bar counsel and the tribunal, she was disbarred. Attorney Grievance Commission of Maryland v. Proctor, Misc. Docket AG No. 1, Sept. Term, 2020 (filed July 25, 2022).
Private right of action
BOTTOM LINE: Where there was no private right of action under a Baltimore City statute prohibiting unlicensed landlords from collecting rent, tenants could not sue their landlord under the statute for the rent it collected while it was unlicensed.
CASE: Aleti v. Metropolitan Baltimore LLC, No. 39, Sept. Term, 2021 (filed July 28, 2022) (Judges Getty, McDonald, Hotten, BOOTH, Biran) (Judges Watts, Wilner concur and dissent).
FACTS: In 2018, the Baltimore City Council amended § 5-4(a)(2)1 of the Baltimore City Code to prohibit any person from charging, accepting, retaining or seeking to collect rent for a rental dwelling unless the person was properly licensed at the time of both the offer to provide the dwelling and the occupancy.
Petitioners filed a putative class action, alleging that for a period of approximately 10 months while they were tenants, Metropolitan did not hold an active rental license for the property. They sought restitution or disgorgement of all rent and fees that they paid during the unlicensed period.
The circuit court dismissed the case, reasoning that § 5-4(a) did not create a private right of action. In dismissing the count for money had and received, the court found that the Aletis had failed to plead with specificity “that they paid more than what they would have paid” but for the violation of § 5-4. And having found that the Aletis had no claim under § 5-4(a) itself, the court concluded that they also had no contractual claim based on the incorporation of that provision into the lease. The Court of Special Appeals largely agreed with the circuit court.
LAW: In determining whether a state statute contains an implied private right of action, the court considers: (1) Is the plaintiff one of the class for whose special benefit the statute was enacted? (2) Is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? and (3) Is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff?
The Aletis’ assert that, by prohibiting a “person” from charging or collecting rent from “another” for an unlicensed property, the provision necessarily reflects an intent to benefit tenants because they are the “another” from whom rent and other fees may not be collected. The fact that tenants might benefit from the prohibition on the collection of rent, however, does not mean that the City Council desired or intended that outcome.
Second, there is nothing in the legislative history that reveals an intent to benefit a particular class of persons, specifically, city tenants, in the form a judicial remedy for restitution of rent. There is also no mention of any intention to create a private right of action in any of the comments generated by any city departments that offered testimony in support of the bill.
It is also noteworthy that organizations which would ordinarily be most vocal about a bill creating a private right of action for disgorgement of rent did not raise concerns about this issue in the written testimony provided by such organizations. Nor is there any evidence in the public testimony or discussion by the City Council that the bill intended to create a private right of action. Finally, and perhaps most significantly, the city’s law department, which provided written comments as part of its review of the Bill “for form and legal sufficiency,” did not discuss or mention the possibility of any language contained therein as creating a private right of action.
Turning to the third factor, while the creation of a private right of action would certainly encourage landlords to comply with the license requirement lest they be required to refund any and all rent paid during the unlicensed period, it is also entirely reasonable that the City Council did not intend to enact such a punitive remedy.
Next, the circuit court did not err in dismissing the claim for money had and received for the Aletis’ payment of rent or related fees that they paid during the unlicensed period. Where a tenant seeks a remedy of restitution of rent based solely on a lack of licensure and without any other damages, the tenant has received the benefit of the bargain. However, the circuit court did err in dismissing the Aletis’ claim as to any legal fees that Metropolitan may have collected during the unlicensed period in connection with bringing actions for nonpayment of rent.
Finally the circuit court did not err in dismissing the claim that Metropolitan breached the lease by charging them rent while it was unlicensed. First, to the extent that the lease purports to incorporate by reference the “terms, rights or remedies” of applicable laws and ordinances, § 5-4(a)(2) does not provide a private right or remedy to the tenants. Second, “the Aletis have not identified any material breach of the lease or any cognizable damages from any such breach.”
Judgment of the Court of Special Appeals affirmed.
CONCUR/DISSENT: I would hold that § 5-4(a)(2) provides for an implied private right of action under which tenants may recover unlawfully charged rent. In addition, based on the circumstances of the case, I would conclude that the Aletis sufficiently pled claims for breach of contract and monies had and received.
Private right of action
BOTTOM LINE: Although a Baltimore City statute does not allow tenants to sue landlords to recover rent collected during a period it was unlicensed, because the statute does not create a private right of action, tenants could sue the landlord under state consumer protection statutes for engaging in debt collection activity or pursuing ejectment actions against a tenant who failed to pay rent during the unlicensed period.
CASE: Assanah-Carroll v. Law Offices of Edward J. Maher PC, Misc. No. 11, Sept. Term, 2021 (filed July 28, 2022) (Judges Hotten, BOOTH, Biran, McDonald) (Judge Watts concurs and dissents) (Judges Getty and Gould concur and dissent).
FACTS: This matter comes before the court pursuant to two questions of law certified by the federal district court regarding a tenant’s right to recoup rent voluntarily paid by a tenant, as well as a landlord’s right to collect unpaid rent, which is attributable to the period in which the landlord was not licensed.
The federal district court has certified two questions to this court, which it has slightly rephrased. First, can a tenant who voluntarily paid rent to a landlord who lacked a rental license pursuant to the Baltimore City Code, Art. 13 § 5-4 maintain a private action under either the Maryland Consumer Debt Collection Act, or MCDCA, or the Maryland Consumer Protection Act, or MCPA, to recover restitution of rent where the tenant has not alleged that the lack of licensure caused her any actual injury or loss?
Second, does a currently licensed landlord violate either the MCDCA or the MCPA by engaging in debt collection activity or pursuing ejectment actions against a tenant who has failed to pay rent that is attributable to the period when the landlord was not licensed under Baltimore City Code, Art. 13 § 5-4, where the tenant does not allege any damages separate from the rent payment itself?
LAW: In Aleti v. Metropolitan Baltimore LLC, this court determined that there is nothing in the legislative history of Bill 18-0185 to suggest that the Baltimore City Council intended to create a stand-alone implied private right of action under § 5-4(a)(2) that would enable city tenants to pursue a judicial remedy of restitution of rent. Even if the Baltimore City Council intended to create modified or expanded remedies for city tenants that could be pursued by filing a private action under the MCPA or MCDCA, moreover, the General Assembly, through the express powers granted to Baltimore by statute and Article II of the Baltimore City Charter, has not conferred upon the city the authority to adopt a local law that alters the remedies provided under the MCPA—a state statute.
Certified question two involves a landlord’s right to engage in debt collection activities, including pursuing claims against the tenant in court, where the tenant has failed to pay rent attributable to the unlicensed period. Specifically, the court must determine whether a landlord who is currently licensed may engage in collection activity or initiate a summary ejectment action based upon the tenant’s failure to pay rent during the period when the dwelling unit was unlicensed. The answer does not depend upon the specific language of any local law, but instead, is dependent upon established principles of common law that this court has the authority to apply.
In McDaniel v. Baranowski, 419 Md. 560 (2011), this court applied common law principles to prohibit a landlord from enforcing his contractual right to collect rent from a tenant by filing a summary ejectment proceeding during a period that the property was unlicensed. The court today determines that there is no reason to limit the holding in McDaniel to those situations where an unlicensed landlord is contemporaneously attempting to enforce a contractual right to collect rent by filing actions in the courts.
The court concludes that the same common law principles should apply when a landlord subsequently obtains a license but is attempting to collect rent that is attributable to the unlicensed period. Turning to the precise issue presented in question two, a tenant may have a right of action under the MCDCA and the MCPA where the landlord engages in such activity, and the tenant can establish that the unlawful conduct caused damages.
Certified questions of law answered.
CONCUR/DISSENT: I join the majority’s decision to answer the second certified question of law “yes.” But, I would also answer the first certified question of law “yes” and hold that, in an action under the MCDCA and the MCPA, a tenant can recover rent collected by an unlicensed landlord in violation of § 5-4(a)(2). The tenant need not show that the tenant was injured due to the condition of the rental dwelling because the injury is being forced to pay rent illegally. In other words, I would hold that a tenant forced to pay rent illegally to an unlicensed landlord suffers an actual injury or loss.
CONCUR/DISSENT: I concur with and join the majority’s analysis and response to certified question one. However, I dissent to the majority’s analysis and answer to certified question two.
Best interest of the child
BOTTOM LINE: Where the juvenile court did not hold a hearing to allow the parties to present evidence concerning whether father was able and willing to provide proper care for the minor child, and that the custody arrangement that was in his best interest, before awarding sole legal and physical custody to father, the case must be remanded to that court for further proceedings.
CASE: In re: T.K., No. 60, Sept. Term, 2021 (filed July 28, 2022) (Judges FADER, Watts, Booth, Biran, Gould, Eaves) (Judge Hotten dissents).
FACTS: The General Assembly has adopted a statutory scheme to balance the fundamental right of parents to raise their children with the state’s obligation and prerogative to protect a child who requires court intervention for protection. Under that statutory scheme, a child is in need of assistance, or CINA, if the child requires court intervention because, as relevant here, (1) the child has been abused or neglected and (2) the child’s parents, guardian or custodian are unable or unwilling to properly care for the child. Unless both of those prongs are proven by a preponderance of the evidence, court intervention is unavailable and a court ordinarily must dismiss the CINA case without further involvement.
The General Assembly, however, has authorized a limited but important exception to that general rule when (1) the allegations of a CINA petition are proven against only one of the child’s parents and (2) another parent is able and willing to provide care for the child’s needs.
In this case the court must clarify: (1) when a juvenile court has the discretion to make an award of custody under § 3-819(e); (2) what standard applies to the exercise of that discretion and (3) when a juvenile court must afford a parent who stands to lose custody as a result of an application of § 3-819(e) an opportunity to present evidence relevant to the court’s exercise of authority under that provision.
LAW: The first prerequisite to the exercise of discretion under § 3-819(e) requires that, following the adjudicatory hearing, the juvenile court will have sustained allegations in the petition that are sufficient to support determinations that: (1) the child has been abused or neglected and (2) one of the child’s parents is unable or unwilling to provide proper care for the child. The second prerequisite to a juvenile court’s authority to award custody under § 3-819(e) is that “there is another parent available who is able and willing to care for the child.”
If the two prerequisites to the juvenile court’s exercise of discretion under § 3-819(e) are satisfied, a juvenile court should exercise its discretion to award custody of a child to the parent who it finds available, willing and able to provide care only if it determines that doing so is in the best interest of the child.
The final legal question raised by mother’s appeal is when is a parent, whose custody is in jeopardy due to a request that a juvenile court award custody to the “other parent” pursuant to § 3-819(e), entitled to a hearing at which that parent can present evidence. The department now agrees that in most cases a juvenile court should conduct an evidentiary hearing before making a custody determination pursuant to § 3-819(e). As a general matter, the court agrees.
Depending on the case, such a hearing may address whether the court has authority to award custody pursuant to § 3-819(e)—in other words, whether the statutory prerequisites are satisfied—and, if so, whether and how it should exercise that authority. Although such a hearing may be unnecessary in some (perhaps many) cases in light of evidence already presented at the adjudicatory hearing or by stipulation of the parties, in other cases additional evidence not yet presented may be relevant. That is especially true when, as here, little or no evidence was presented at the adjudicatory hearing about a non-custodial parent who subsequently seeks an award of custody pursuant to § 3-819(e).
The department, father and T.K. all take the position that a juvenile court may rely on proffers from counsel, if not contradicted, both to establish that the “other parent” is able and willing to care for the child and to serve as the basis for a court’s best interest determination. They further contend that proffers made in this case by the department and father were sufficient for both purposes. There are two problems with that argument as applied to this case. The first is that proffers are not evidence and, where the matter is contested, cannot provide the basis for necessary factual findings. The second problem is that the proffers at issue here were contradicted.
Judgment of the Court of Special Appeals reversed.
DISSENT: The record demonstrates that the juvenile court considered the best interests of T.K. by awarding custody to the father. The mother stipulated to allegations of neglect, and the department established that the father was willing and able to assume custody of T.K. Given the unique position of the juvenile court to marshal the applicable facts, assess the situation and determine the best interests of T.K., it would be detrimental to the welfare of T.K. to require subsequent proceedings to further establish what is already manifest in the record. I would hold that the juvenile court did not abuse its discretion by awarding custody of T.K. to the father, and I would affirm the Court of Special Appeals.
BOTTOM LINE: Where a hospital impliedly represented that a trauma surgeon was its agent, an injured person relied on that representation in seeking treatment at the trauma center and the reliance was reasonable, the hospital was liable for the surgeon’s negligence, even though he was actually an independent contractor.
CASE: Williams v. Dimensions Health Corporation, No. 42, Sept. Term, 2021 (filed July 28, 2022) (Judges Watts, Hotten, Gould, Raker, McDonald) (Judges Getty, Biran dissent).
FACTS: Terence Williams suffered serious injuries as a result of a vehicle crash and was transported by ambulance to the Prince George’s Hospital Center. He suffered further injuries when the surgeon who treated him there failed to exercise the standard of care expected of trauma surgeons.
Mr. Williams sued both the surgeon and the hospital. The hospital contended that the surgeon was an independent contractor and that the hospital therefore was not responsible for his conduct in treating Mr. Williams. However, under prior decisions of this court, as well as decisions by other courts around the country, a hospital may be vicariously liable for the negligence of a health care provider who staffs the hospital’s emergency room, regardless of the formal relationship between the provider and the hospital, under the doctrine of apparent agency.
A jury returned a verdict finding that the surgeon was negligent and directly liable, that the surgeon was an agent of the hospital and that the hospital was vicariously liable for that negligence. The hospital moved for judgment notwithstanding the verdict on the ground that there was insufficient evidence to show that Mr. Williams had believed that the surgeon was an agent of the hospital when he was brought there by the ambulance. The circuit court granted that motion and the Court of Special Appeals affirmed that ruling.
LAW: Under the doctrine of apparent agency, an entity may be found vicariously liable to a third party for the negligence of its apparent agent if (1) the entity represents, or acquiesces in the appearance, that an individual is its agent; (2) the third party relies on that appearance to the party’s detriment and (3) the third party’s reliance is reasonable under the circumstances.
First, the hospital had an emergency room that held out that it offered treatment for patients in emergency circumstances. Moreover, the hospital had obtained a designation as a Level II trauma center, thus representing publicly, in accordance with that designation and as stipulated at trial, that it would have an orthopedic surgeon available to treat those in need of such services. Dr. Blundon was the surgeon who fulfilled the hospital’s obligation in that respect. In that way, the hospital held out and at least created the impression that Dr. Blundon was its agent in providing those services to patients brought to its trauma center.
With respect to the second element, the hospital argues that no reasonable jury could have concluded that Mr. Williams both believed that Dr. Blundon was the hospital’s agent and relied on that belief. The hospital’s argument overlooks the context in which medical services were provided in this case.
EMS personnel, in accordance with protocols, transported Mr. Williams to the hospital, instead of another hospital closer to the accident, because of the hospital’s designation as a Level II trauma center. Mr. Williams testified that he knew at the time that he was at the hospital, that he was aware that it was a trauma center and that he relied on the hospital to treat him. There was sufficient evidence at trial, viewed in the light most favorable to Mr. Williams, that he, and the EMS personnel attending to him, relied on the representation of the hospital that it would provide the requisite medical staff to treat Mr. Williams’ injuries on an emergency basis.
Regarding the third element, the hospital uses a consent form to notify arriving patients that the hospital does not consider the physicians and surgeons providing emergency care to be its employees or agents. Even in legible form, these two paragraphs are hardly models of clarity. In any event, Mr. Williams did not sign the form, and there was no evidence that he ever saw it. As the trial court opined, the relevance of this consent form to the question of apparent agency was “marginal to none.”
Judgment of the Court of Special Appeals reversed.
DISSENT: While the majority provides a comprehensive summary and explanation of the doctrine of apparent agency in Maryland, I diverge with the majority’s apparent revision of the requisite subjective belief necessary to establish an apparent agency relationship and conclusion that “there was sufficient evidence for the jury to conclude that the reliance element was satisfied.” Accordingly, I would affirm the judgment of the Court of Special Appeals.
Administrative records exception
BOTTOM LINE: Where the online Maryland Case Search system does not include the names of judges on the District Court in Baltimore City, a code key that matches codes to those judges must be produced to a requester. The code key was not exempt from disclosure under the exception for certain administrative records in Maryland Rule 16-905(f)(3).
CASE: Administrative Office of the Courts v. Abell Foundation, No. 48, Sept. Term, 2021 (filed July 28, 2022) (Judges Getty, Watts, Booth, HARRELL, McDonald) (Judges Hotten and Biran dissent).
FACTS: Information about Maryland judicial proceedings are reported in an online database known as Case Search. For cases in many courts, the judge who presided over the particular proceeding is identified in Case Search. However, for cases in the District Court sitting in Baltimore City, the judge is identified only by an alphanumeric code. e clerks who enter the information from paper records into the digital database have a code key that assigns each judge a code. However, that code key does not appear in Case Search – or apparently anywhere else that is accessible to the public.
In July 2018, Abell Foundation requested a copy of the code key from the Administrative Office of the Courts, or AOC, under the Maryland Public Information Act. The AOC, declined to provide that document, citing a Maryland Rule that states an exception to disclosure for certain types of “administrative records.” The circuit court and the Court of Special Appeals concluded that the exception did not apply to the code key.
LAW: The only point of dispute is whether the code key is a “policy or directive that governs the operation of the court” – in which case the exception in subsection (f)(3) would not apply – or is not a “policy or directive” – in which case the exception would apply. Both the circuit court and the Court of Special Appeals concluded that the code key was the functional equivalent of a policy and therefore that the exception did not apply. The AOC argues that those courts adopted a strained reading of the word “policy” to extend it to a list of codes and names.
While the dictionaries are somewhat informative on what subsection (f)(3) might ordinarily mean, they do not establish a clear meaning of the word “policy” as applied to the code key, which, in and of itself, neither sets a procedure for its use nor requires its use. The court therefore looks more broadly to the purpose and history of subsection (f)(3) – and the access rules of which it is a part.
It seems clear that both the 2003 court committee and the court intended at the time that the access rules were first adopted that the presumption of disclosure in those rules would be at least as broad as that in the PIA; that the disclosure of the Judiciary’s administrative records would generally follow the principles applicable to Executive Branch agency records under the PIA, with the PIA filling any gaps in the access rules; and that the particular exception set forth in subsection (f)(3) would protect the same sorts of pre-decisional records that the PIA exception in SG §10-618(b) – now codified at GP §4-344 – protected from disclosure.
The code key is just a list of names and codes, it did not lead to or even precede a decision pertaining to its content; it did not reflect deliberations among judiciary staff; it was not prepared as an internal report or analysis to aid a decisionmaker. Because the code key “patently do[es] not represent the content of confidential communications of an advisory or deliberative nature,” the exception stated in subsection (f)(3) does not apply to it.
The court thus holds that the code key that matches alphanumeric codes in Case Search to the judges on the District Court in Baltimore City is disclosable in response to Abell’s public records request and is not exempt from disclosure under the exception for certain administrative records in Maryland Rule 16-905(f)(3), as it existed in July 2018 – or as it exists in current Maryland Rule 16-913(d).
Judgment of the Court of Special Appeals affirmed.
DISSENT: I respectfully dissent. As explained below, I cannot agree that Maryland Rule 16- 905(f)(3)(B)(i) (effective through July 31, 2020) permits Abell Foundation to access to the edit table. To conclude otherwise requires ignoring the plain language of the Rule and reading additional language into the Rule that does not appear in its text. This court has repeatedly reiterated that neither practice is acceptable. The legislative intent behind the enactment of the access rules does not compel a different result. While the majority applied a nuanced analysis of the Maryland Rules that weighed the competing objectives of general transparency and specific record confidentiality, this analysis cannot supersede the plain meaning of the rule.
BOTTOM LINE: Where an attorney failed to terminate a representation due to a conflict of interest; sent her client a 20-page letter containing numerous antisemitic, personally insulting, profane and otherwise inappropriate comments and made a false claim to bar counsel about the letter, she was indefinitely suspended from the practice of law.
CASE: Attorney Grievance Commission of Maryland v. Maiden, Misc. Docket AG No. 72, Sept. Term, 2020 (filed July 28, 2022) (Judges FADER, Watts, Hotten, Booth, Biran, Gould, Eaves).
FACTS: The Attorney Grievance Commission of Maryland, acting through bar counsel, filed a petition for disciplinary or remedial action against Amber Lisa Maiden, arising out of her representation of Brian Riese. The commission alleged that Ms. Maiden committed several violations of the Maryland Attorneys’ Rules of Professional Conduct, or MARPC, resulting from her: (1) creation of, failure to recognize and failure to terminate representation due to a conflict of interest that arose when she made herself a co-party to Mr. Riese’s administrative appeal of the dismissal of a discrimination complaint and asserted a 50% share of any punitive damages award; (2) sending Mr. Riese a 20-page letter containing numerous antisemitic, personally insulting, profane and otherwise inappropriate comments; and (3) false claim to bar counsel that she had sent the letter by mistake.
A hearing judge found by clear and convincing evidence that Ms. Maiden had committed all the violations alleged by the commission. The hearing judge also found the existence of several aggravating and two mitigating factors. Neither party filed exceptions. The commission recommended a sanction of indefinite suspension.
LAW: Ms. Maiden created a conflict of interest by making herself a co-claimant along with Mr. Riese for the purpose of asserting a cause of action under 42 U.S.C. § 1981. Although an attorney may continue to represent a client notwithstanding the existence of a conflict of interest in certain situations, the attorney must first, among other things, obtain the client’s “informed consent, confirmed in writing.” Ms. Maiden neither informed Mr. Riese of the conflict nor obtained his written (or even verbal) consent.
Ms. Maiden also created a conflict of interest by claiming a 50% share of any punitive damages Mr. Riese might obtain. Although a “reasonable contingent fee,” “subject to Rule 1.5,” is permitted as an exception to the general rule prohibiting an attorney from acquiring a proprietary interest in a cause of action, Ms. Maiden’s demand for a 50% share of any punitive damages award was premised at least in part on her status as a co-claimant with Mr. Riese — and her stated belief that she was a more appropriate recipient of those damages than he was — not on her legal work. Ms. Maiden thus violated Rules 1.7 and 1.8(i) by creating a conflict of interest without obtaining Mr. Riese’s written informed consent.
By failing to recognize the conflict of interest, Ms. Maiden violated Rule 1.1, which requires that an attorney “provide competent representation to a client.” Second, by failing to terminate her representation of Mr. Riese due to the conflict, Ms. Maiden violated Rule 1.16(a)(1), which requires an attorney who has commenced representation of a client to withdraw if “the representation will result in violation of the Maryland Attorneys’ Rules of Professional Conduct[.]”
The hearing judge found by clear and convincing evidence that Ms. Maiden engaged in professional misconduct by (1) sending Mr. Riese the 20-page letter that contained antisemitic and highly offensive comments, and (2) misrepresenting to bar counsel that the letter had been sent to Mr. Riese by mistake. On the first point, the letter is laced with statements that are offensive, demeaning, personally insulting, profane and premised on harmful religious, racial and ethnic stereotypes. The hearing judge correctly concluded that Ms. Maiden’s statements in the letter violated Rules 8.4(d) and (e).
Although Ms. Maiden argued that she could not have committed conduct that was prejudicial to the administration of justice when she sent the 20-page letter to Mr. Riese because she was not actively performing any legal services on his behalf at that time and the original terms of her representation agreement with Mr. Riese had already been fulfilled, the hearing judge properly rejected that argument.
The two other violations that the hearing judge concluded Ms. Maiden committed both arise from her representation to bar counsel that she had not intended to send Mr. Riese the 20-page letter. The hearing judge found that to have been a knowing and intentional misrepresentation. Although the court may treat the hearing judge’s findings as established in the absence of exceptions, it notes that the findings on that point were especially well-supported.
The hearing judge found clear and convincing evidence of the existence of four aggravating factors. The record supports the hearing judge’s findings with respect to all four aggravating factors. The hearing judge also found by a preponderance of the evidence the existence of two mitigating factors: “(1) absence of a prior disciplinary record and (2) personal or emotional problems.” The record supports the hearing judge’s findings with respect to each of those mitigating factors.
The commission recommends that Ms. Maiden be indefinitely suspended from the practice of law. Ms. Maiden neither responded to that recommendation nor offered a contrary recommendation. Given the severity, quantity and multiple categories of violations presented here, the appropriate sanction is indefinite suspension. For that reason, Ms. Maiden was indefinitely suspended on May 11, 2022.
BOTTOM LINE: Where an attorney violated numerous provisions of the Maryland Attorneys’ Rules of Professional Conduct when she lied to her clients, bar counsel and the tribunal, she was disbarred.
CASE: Attorney Grievance Commission of Maryland v. Proctor, Misc. Docket AG No. 1, Sept. Term, 2020 (filed July 25, 2022) (Judges Getty, Watts, Hotten, Booth, Biran, GOULD, McDonald).
FACTS: The Attorney Grievance Commission of Maryland, or AGC, acting through bar counsel, filed a petition for disciplinary or remedial action against Deidra Nicole Proctor, alleging that she violated numerous provisions of the Maryland Attorneys’ Rules of Professional Conduct, or MARPC. The hearing judge issued findings of fact and conclusions of law, finding by clear and convincing evidence that Ms. Proctor violated multiple MARPC rules.
LAW: In connection with the Belfast matter and the claims that she is liable for the unauthorized practice of law, Ms. Proctor argues that her due process rights were violated by the AGC’s lengthy 14-year delay in filing its petition. She contends she was prejudiced by this delay by virtue of a failing memory with the passage of time and that she no longer has her notes from the case. Ms. Proctor provides no support for her proposition that a disciplinary action of this kind is subject to the statute of limitations. In fact, it isn’t. To the extent Ms. Proctor is relying on the doctrine of laches, that too is unavailing to her.
Ms. Proctor excepts to all the hearing judge’s findings of fact because they resulted from facts established as a result of allegedly improper discovery sanctions. She contends that she was never properly served with the discovery requests, and therefore she was not required to respond. She complains that the hearing judge declined her request for a continuance to give her time to supplement her discovery responses, and sanctioned her without finding that the delay prejudiced bar counsel. Ms. Proctor’s exceptions are without merit.
Ms. Proctor next complains about an extension that was granted at the May 6 scheduling conference. Ms. Proctor’s exception fails for three simple reasons. First, she consented to the motion; that she did so lacking a familiarity with the process was of her own choosing. Second, the extension of the 120-day period was necessitated because of the issue of service that Ms. Proctor raised. Third, Ms. Proctor failed to articulate any prejudice to her from the extension, and no such prejudice is discernible in this record.
The hearing judge found by clear and convincing evidence that Ms. Proctor violated MARPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.5(a), 1.16(d), 3.3(a), 5.5(a) and (b), 8.1(a) and (b), and 8.4(a), (c) and (d). This court agrees with the hearing judge’s findings and overrule Ms. Proctor’s remaining exceptions.
Bar counsel urged the court to disbar Ms. Proctor; Ms. Proctor contended that a definite one-year suspension would be more appropriate. The court agreed with bar counsel. Ms. Proctor did not offer any mitigating factors and none were found. On the other hand, the court agrees with the hearing judge that bar counsel proved eight aggravating factors by clear and convincing evidence.
Ms. Proctor engaged in conduct involving intentional dishonesty, including lying to her clients, bar counsel and the tribunal. Due to this behavior alone, disbarment is generally warranted. Ms. Proctor’s misconduct directly harmed her clients. Her clients lost claims and defenses due to her serial neglect, paid unreasonable fees and were deprived of important information necessary to make informed decisions about their cases. Accordingly the court determines that disbarment is the appropriate sanction.