Attorney Grievance Comm'n of Md. v. Olszewski

• Decision Date: 27 January 2015
• Docket Number: Misc. Docket AG No. 48, Sept. Term, 2013.
• Citation: 441 Md. 248,107 A.3d 1159
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kevin Trent OLSZEWSKI.
• Court: Court of Special Appeals of Maryland

441 Md. 248

107 A.3d 1159

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Kevin Trent OLSZEWSKI.

Misc. Docket AG No. 48, Sept. Term, 2013.

Court of Appeals of Maryland.

Jan. 27, 2015.

Raymond A. Hein, Deputy Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

Dennis J. Quinn, Esq. (Carr Maloney PC), for respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD and WATTS, JJ.

Opinion

GREENE, J.

On September 27, 2013, the Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16–751(a), filed a “Petition For Disciplinary Or Remedial Action” against Kevin Trent Olszewski (“Respondent” or “Olszewski”) arising out of two separate client complaints. Petitioner charged Respondent with violating various Maryland Lawyers' Rules of Professional Conduct (“MLRPC” or “Rule”), specifically Rule 1.1 (Competence),¹ Rule 1.3 (Diligence),² Rule 1.4 (Communication),³ Rule 1.5 (Fees),⁴ Rule 1.7 (Conflict of Interest),⁵ Rule 1.15 (Safekeeping Property),⁶ 1.16 (Declining or Terminating Representation),⁷ Rule 8.1 (Bar Admission and Disciplinary Matters),⁸ and Rule 8.4(a) and (d) (Misconduct).⁹

This Court referred the matter to the Honorable Robert Edward Cahill, Jr. of the Circuit Court for Baltimore County for a hearing and to render findings of fact and conclusions of law pursuant to Maryland Rule 16–757. Judge Cahill conducted an evidentiary hearing on February 20, 2014, at which the parties submitted an agreed stipulation of facts and exhibits. Judge Cahill heard testimony from Respondent and three other witnesses: Shaneise T. Ware, Lizabel Acosta–DeJesus, and Margaret Hoffman. Thereafter, Judge Cahill issued Findings of Fact and Conclusions of Law, in which he found, by clear and convincing evidence, that Respondent violated MLRPC 1.1, 1.3, 1.4, 1.5, 1.7, 1.15, 1.16, 8.1, 8.4(a) and (d).

Findings of Fact and Conclusions of Law

Respondent was admitted to the practice of law on December 10, 1982, and maintains a solo practice in Bel Air, Maryland, focusing on collections, construction law, general civil litigation, and wills and estate matters. The instant proceedings arose out of two separate client complaints: one filed by Mr. and Mrs. Ware, the other by the office of Ramon A. DeJesus, M.D., LLC.

Ware Complaint

Mrs. Ware retained Respondent to represent her and her husband, Mr. Ware, on September 24, 2009, following a single vehicle accident in which both Mr. and Mrs. Ware sustained injuries. The accident occurred on September 21, 2009, at which time Mrs. Ware was driving and Mr. Ware was a front seat passenger. Due to the severity of his injuries, Mr. Ware was taken to the University of Maryland's Shock Trauma Unit for treatment. He remained in the hospital at the time that Mrs. Ware retained Respondent to represent them, but Mr. Ware signed a separate retainer agreement with Respondent on November 10, 2009.

On behalf of Mr. and Mrs. Ware, Respondent secured the payment of PIP benefits from Mrs. Ware's insurer, the Maryland Automobile Insurance Fund. In completing further investigation of the Wares' potential claims, Respondent discovered that the vehicle involved in the accident, a 2000 Buick LeSabre, was a rebuilt salvage vehicle. That fact had not been disclosed to the Wares when they purchased the vehicle in July 2009 from BH Motors in Joppa, Maryland. Respondent also learned that Mrs. Ware's insurance policy provided the minimum statutory liability limits, which Mr. Ware's medical bills far exceeded.

On June 29, 2012, Mr. and Mrs. Ware filed a complaint with Petitioner, alleging that Respondent would not return their telephone calls or advise them about “the status of our case.” Petitioner sent letters to Respondent, dated July 13, 2012, August 8, 2012, and October 12, 2012, requesting a response to the Wares' allegations. Despite receipt of the letters, Respondent failed to respond.

On September 21, 2012, Respondent filed in the Circuit Court for Harford County a civil action against Mrs. Ware on behalf of Mr. Ware. Then, on September 24, 2012, Respondent filed a separate action in the Circuit Court for Harford County on behalf of both Mr. and Mrs. Ware against BH Motors. On February 23, 2013, the Circuit Court consolidated the two civil cases pursuant to a joint motion filed by the respective defendants. Ultimately, both cases were dismissed.

Respondent admitted that his representation of Mr. Ware against Mrs. Ware created a conflict of interest. Although Respondent maintained that he discussed the conflict of interest with the Wares, the hearing judge found otherwise based on the credible testimony of Mrs. Ware, who testified that Respondent never discussed the question of a conflict with her. Respondent acknowledged that he should have instructed Mr. Ware to retain a different attorney, or referred the case to another attorney, in the lawsuit against Mrs. Ware. In any event, the hearing judge found that Respondent “plainly knew, or should have known of this obvious conflict and ignored it.”

In addition, the hearing judge found that, though Respondent adequately communicated with Mrs. Ware in the early stages of his representation, Respondent failed to respond to her telephone calls during the months leading up to the Wares' filing of the attorney grievance complaint. Therefore, the hearing judge found that Respondent “failed to adequately or effectively communicate with Mrs. Ware about the status of her claims, or about the propriety of representing Mr. Ware in his case against her.”

With regard to the Ware complaint, Judge Cahill reached the following conclusions of law:

1. The Petition for Disciplinary of Remedial Action alleges that, with respect to Mr. and Mrs. Ware, [Respondent] violated Rules 1.1 (Competence), 1.3 (Diligence), 1.4(a) (Communication), 1.7 (Conflict of Interest), 1.16(a) (Declining/Terminating Representation), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a) and (d) (Misconduct) of the [MLRPC].

2. Petitioner has proved that [Respondent] violated Rule 1.1 by clear and convincing evidence. While [Respondent] secured PIP benefits for both Mr. and Mrs. Ware from [the Maryland Automobile Insurance Fund], and while he initiated a proper investigation into claims arising from the purchase of the 2000 Buick LeSabre and the accident, a minimal threshold of competent representation was breached when he agreed to represent one client against another and continued with that representation to the point of filing an action against Mrs. Ware on behalf of Mr. Ware.

3. Petitioner also proved by clear and convincing evidence that [Respondent] violated Rule 1.3 by failing to act with reasonable diligence and promptness in the representation of the Wares. He waited until the end of the limitations period to file the actions in court, and appears to have done so at least partially due to the filing of the Attorney Grievance Commission complaints. In Mr. Ware's case against his wife, while the progress of discovery was complicated by the fact that Mr. Ware was incarcerated for important periods of time, and the fact that the Wares, at some point, obtained protective orders against one another, [Respondent] clearly violated the diligence standard in failing to timely furnish discovery, resulting in the need for [the trial court] to actively intervene in the matters.

4. Petitioner has proved a violation of Rule 1.4. [Respondent] failed to keep Mrs. Ware reasonably informed about the status of her matter and did not comply promptly with her reasonable requests for information when she repeatedly attempted to contact him by phone during the months prior to filing a grievance. Such failure to communicate violated subsections (a)(2) and (a) (3) of Rule 1.4. When he initially undertook the joint representation of the Wares, [Respondent] did not inform Mrs. Ware of a decision or circumstance with respect to which her informed consent, as defined in Rule 1.0(f), was required. He therefore violated Rule 1.4(a)(1). By virtue of his failure to provide Mrs. Ware with any information regarding the filing of a lawsuit against her and his failure to explain to Mrs. Ware that a motion to dismiss had been filed and granted in the case in which she was a plaintiff, [Respondent] violated Rule 1.4(b).

5. Petitioner has established a violation of Rule 1.7. [Respondent]'s joint representation of Mr. and Mrs. Ware, even if it did not immediately present a conflict of interest in his mind, certainly became a conflict of interest for him when he filed suit on behalf of Mr. Ware against Mrs. Ware. As counsel for [BH Motors] noted in response to the motion for reconsideration filed by [Respondent] after the Wares' joint action was dismissed with prejudice due to discovery failures, [Respondent] “represented Shaneise T. Ware in one case as Plaintiff, and sued her in another case as Defendant, which would appear to be the very definition of a conflict.” [Respondent]'s conflict involved the type of directly adverse representation to which a client cannot consent, inasmuch as it involved “the assertion of a claim by one client against another client represented by the lawyer in the same litigation or other proceeding before a tribunal.” Rule 1.7(b)(3). Even if the conflict could have been waived, [Respondent] never sought to obtain Mrs. Ware's informed consent, in writing or otherwise, at any time before filing suit against her on behalf of Mr. Ware. By engaging in an obvious conflict of interest, [Respondent] violated Rule 1.7.

6. Petitioner has proved a violation of Rule 1.16 by clear and convincing evidence. By failing to withdraw from the representation of both Mr. and Mrs. Ware once it was apparent that [Respondent]'s continued representation presented an obvious conflict, [Respondent] violated Rule 1.16(a)(1), which requires withdrawal when “the representation will result in a violation of the [MLRPC] or other law.”

7. [Respond

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