Not Making A Federal Case

The Maryland Court of Appeals has disbarred an attorney who had mishandled an appeal and engaged in further misconduct after that lapse

This attorney discipline proceeding involves an attorney who, among other instances of misconduct, failed to file an opening brief, an appendix, or a motion to extend time on behalf of a company in an appeal, resulting in the appeal being dismissed, and made a knowing and intentional misrepresentation to the owner of the company that he was working to have the appeal reinstated.

Thomas McCarthy, Jr., Respondent, a member of the Bar of Maryland, was retained by Jonathan B. Radding to represent his company, View Point Medical Systems, LLC (“View Point”), which was the appellant in an appeal before the United States Court of Appeals for the Fourth Circuit. The underlying case began as a breach of contract action in the Circuit Court for Baltimore City in which View Point was the plaintiff and the defendant in the lawsuit had the case removed to the United States District Court for the District of Maryland. On appeal, McCarthy failed to file an opening brief, an appendix, or a motion to extend time on View Point’s behalf, resulting in dismissal of the appeal. McCarthy knowingly and intentionally misrepresented to Radding that he was working on reinstating the appeal and briefing schedule. In actuality, McCarthy never drafted or filed a motion to reinstate the appeal or took any other steps to protect View Point’s claim. Radding caused a complaint against McCarthy to be filed with Bar Counsel. Bar Counsel made numerous requests for information and documentation, to which McCarthy knowingly and intentionally failed to provide timely and complete responses.

Sanction in light of prior decisions

Indeed, the circumstances of this attorney discipline proceeding warrant disbarment even more than those of Davenport. The attorney in Davenport was not determined to have violated MARPC 8.4(c). See id. at 30 n.3, 244 A.3d at 1038 n.3. By contrast, McCarthy violated MARPC 8.4(c) by knowingly and intentionally misrepresenting to Radding that he was working on reinstating the appeal. In other words, McCarthy did more than fail to provide a valid explanation for mishandling the appeal, he engaged in intentional dishonesty to cover his tracks. Like Miller, this attorney discipline proceeding implicates the principle that “disbarment is generally the appropriate sanction for intentionally dishonest conduct[.]” Id. at 228, 223 A.3d at 1006 (citation omitted). McCarthy’s violation of MARPC 8.4(c) along with all of the other MARPC violations and the presence of such numerous aggravating factors demonstrate that disbarment is warranted.

(Mike Frisch)