Attorney Disbarred; Multiple Rules Violated

An attorney who had been retained by a client to seek to vacate a divorce settlement was disbarred for a laundry list of ethics violations by the Maryland Court of Appeals.

The court sustained several exceptions of Bar Counsel based on the hearing judge’s conclusions that rule violations were not proved, including fee misconduct

We sustain Petitioner’s exception. Respondent charged Mr. Wilson $58,748.77 and  collected over $54,000 to vacate a $55,000 divorce judgment. The hearing judge found that Respondent’s fees were reasonable in light of “the immense scope of the time and effort that were ultimately incurred as a result of Respondent’s representation.” The record does not reasonably support that finding. Despite the sizeable fee and length of representation, the time and effort Respondent expended was due largely to her own misconduct in connection with both the divorce case and the guardianship action…

Respondent further violated MLRPC 1.5(a) in connection with the fees she sought and obtained from Mr. Wilson in the guardianship action. She billed him for her representation of his legal adversary, Mr. Griggs. We cannot accept Respondent’s position that her bills were fair and reasonable when she billed Mr. Wilson for filing a pleading that was in direct opposition of his position.

  As indicated above, the attorney violated conflict of interest rules by initiating guardianship proceedings against her client

We overrule Respondent’s exception. We agree with the hearing judge that Respondent’s representation of Mr. Griggs in the guardianship case created a conflict of interest that could not be waived because Mr. Griggs and Mr. Wilson were in a directly adverse relationship. We do not subscribe to the contention that Mr. Griggs was a mere “incidental beneficiary” because his and Mr. Wilson’s interests were in fact aligned. We have explained that the formation of an attorney-client relationship “does not require an explicit agreement,” but rather may arise from the conduct of the parties. See Attorney Grievance Comm’n v. Brooke, 374 Md. 155, 175 (2003). The record reflects that Respondent represented Mr. Griggs, and Respondent concedes that she “technically” represented him in the second petition for guardianship. Respondent should have become aware that a conflict existed when the court appointed counsel to represent Mr. Wilson and, certainly so, at the latest, when she filed an opposition to Mr. Wilson’s answer to the petition.

The attorney also made false statements to a tribunal

 The hearing judge found that Respondent made material misrepresentations and omissions to Judge Russell in the fee case. The most significant of those relate to her characterization of Mr. Wilson’s mental capacity. Respondent misrepresented to Judge Russell that Mr. Wilson could “certainly deal with his day-to-day events and simple contracts,” and implied that Mr. Wilson’s only limitation concerned complex matters. The hearing judge found that Respondent intentionally omitted Dr. Lasson’s findings that Mr. Wilson was unable to recall and understand basic information. The hearing judge found that Respondent’s misrepresentation was made knowingly because she had personal knowledge of the extent of Mr. Wilson’s diminished capacity and her position in the fee case was directly contrary to the position she advanced before the court in the divorce and guardianship cases. As a result, the hearing judge concluded that Respondent’s conduct violated MLRPC 3.3.

Sanction

Respondent failed to act competently and communicate adequately with her client. She engaged in unreasonably aggressive discovery tactics that resulted in sanctions imposed on Mr. Wilson, which were lifted only after a judge later determined that her client was incompetent. Respondent made a misrepresentation to Mr. Wilson to conceal the fact that her misconduct excluded the only available medical evidence that would have been required to support his claims. Finally, and most egregiously, Respondent lied to and deceived the court to the detriment of her former client for her own monetary gain…

 We impose a sanction less severe than disbarment in cases of intentional misrepresentations only upon a showing of “compelling extenuating circumstances.” Steinberg, 395 Md. at 375. Respondent has not offered, nor do we find, the presence of any extenuating circumstances, much less the compelling circumstances we require. Accordingly, we hold that Respondent’s misconduct is deserving of the ultimate sanction.

 There is a good exam question lurking in these facts. (Mike Frisch)