When A Respondent Defaults

The Maryland Supreme Court explained the implications of a default in rejecting some findings of misconduct but nonetheless ordered an attorney’s indefinite suspension for sustained charges 

Here, as stated above, Petitioner did not include any factual allegations in the PDRA or in its requests for admissions concerning Ms. Rossbach’s failure to obtain informed consent, confirmed in writing, from Mr. Kukin or Ms. Desogugua to the deposit of their advance fee payments in an account other than an attorney trust account. Nor did the hearing judge make any factual finding that Ms. Rossbach failed to obtain such informed consent. Petitioner did not call either Mr. Kukin or Ms. Desogugua as witnesses at the evidentiary hearing, where they could have been asked whether Ms. Rossbach explained the difference between an attorney trust account and an operating account to them. It may well be that Ms. Rossbach failed to obtain informed consent from Mr. Kukin and/or Ms. Desogugua on this point, despite at least Ms. Desogugua’s apparent initialing of that provision in her the retainer agreement. However, it was Petitioner’s burden to show by clear and convincing evidence that there was an absence of informed consent. Petitioner failed to do so.

To be sure, this case proceeded to the evidentiary hearing in a default posture. In such cases, it often is wasteful and unnecessary to call live witnesses. See Thomas, 440 Md. at 550 (opining that, given the Order of Default entered by the hearing judge, “there was no apparent need for a full-blown evidentiary hearing”). That is so because, in many such cases, Petitioner can meet its burden to prove the charged violations by clear and convincing evidence based simply on the factual averments contained in the PDRA and/or on matters deemed admitted by virtue of a respondent’s failure to timely respond to Bar Counsel’s requests for admissions. But Bar Counsel must examine the record as it exists after an Order of Default is entered with a critical eye. If that record reveals that Bar Counsel is missing an essential element of a charged violation, if it still wishes to proceed on that charge, it cannot simply rely on the deficient record.

For the above-stated reasons, we do not conclude that Ms. Rossbach violated Rule 1.15(a) and (c).

Among the sustained violations

Ms. Rossbach demonstrated a dishonest and selfish motive by making knowing and intentional misrepresentations to Bar Counsel to conceal her misconduct and by refusing to refund unearned client funds. As noted above, Ms. Rossbach failed to perform the services for which she was retained. However, when responding to Bar Counsel, she knowingly and intentionally misrepresented that she had performed a significant amount of work on behalf of both clients. Ms. Rossbach’s statements to Bar Counsel that she was refunding the clients’ unearned fees were also false.

Ms. Rossbach displayed a pattern of misconduct in both matters by failing to communicate with her clients, failing to appear for scheduled meetings, and failing to perform the services for which she was retained. As discussed above, Ms. Rossbach has committed multiple MARPC violations.

Sanction

We agree with Bar Counsel that an indefinite suspension is the appropriate sanction in this case. “Indefinite suspension ensures that [Ms. Rossbach] is not permitted to practice law until this Court is satisfied that she is able to do so in a manner that is consistent with the M[A]RPC. We have reiterated that indefinite suspension is not permanent, so [Ms. Rossbach] may apply for reinstatement under Maryland Rule 19-752.” Id. at 467.

We decline, however, as we did in Attorney Grievance Commission v. Green, to set a minimum time period that must run before Ms. Rossbach may apply for reinstatement…

(Mike Frisch)