Attorney Grievance Comm'n of Md. v. Shuler, Misc. Docket AG No. 81, Sept. Term, 2015

• Decision Date: 11 July 2017
• Docket Number: Misc. Docket AG No. 81, Sept. Term, 2015
• Citation: 164 A.3d 209,454 Md. 200
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Melodie Venee SHULER
• Court: Court of Special Appeals of Maryland

454 Md. 200

164 A.3d 209

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Melodie Venee SHULER

Misc. Docket AG No. 81, Sept. Term, 2015

Court of Appeals of Maryland.

July 11, 2017

Reconsideration Denied September 21, 2017

Argued by Amy S. Paulick, Assistant Bar Counsel (Raymond A. Hein, Acting Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

No argument on behalf of Respondent.

Argued before Barbera, C.J., Greene, Adkins, McDonald, Hotten, Getty, Glenn T. Harrell, Jr. (Senior Judge, Specially Assigned), JJ.

Harrell, J."Saying that something is so does not make it so necessarily." Old Adage (Anonymous)

Petitioner, the Attorney Grievance Commission of Maryland, by its then Bar Counsel, Glenn M. Grossman, Esq., and Assistant Bar Counsel, Amy S. Paulick, Esq., filed with the Court of Appeals on 25 February 2016 public charges in this matter against Respondent, Melodie Venee Shuler. The charges stemmed from a complaint lodged by Calvin A. Keene, a former client of Respondent. Respondent was charged with violating the following Maryland Lawyers' Rules of Professional Conduct (MLRPC):¹ (1) Rule 1.1 (Competence); (2) Rule 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer); (3) Rule 1.3 (Diligence); (4) Rule 1.4 (Communication); (5) Rule 8.1 (Bar Admission and Disciplinary Matters); and, (6) Rule 8.4 (a), (c), and (d) (Misconduct).

The charges were assigned by this Court to the Hon. Ronald A. Silkworth of the Circuit Court for Anne Arundel County for the conduct of an evidentiary hearing and the rendition of findings of fact and conclusions of law. The hearing occurred over two days, 14 October and 1 November 2016.² Respondent, who lived apparently in South Carolina at the time, participated in the hearings by telephone. See Rules 16–757 and 2–513.

On 25 January 2017, Judge Silkworth filed with the Court his written findings of fact and conclusions of law, dated 13 January 2017. He concluded that Respondent violated MLRPC 1.1, 1.2, 1.3, 1.4(a), 1.4(b), 8.1, 8.4(a), 8.4(c), and 8.4(d). In addition, he found that Petitioner demonstrated by clear and convincing evidence nine aggravating factors infecting Respondent's misconduct. Respondent did not persuade Judge Silkworth, by a preponderance of the evidence, of the existence of any mitigating factor.

Petitioner filed no exceptions to Judge Silkworth's findings of fact and conclusions of law, and recommended this Court disbar Respondent, noting also that Respondent stood before the Court suspended from the practice of law in Maryland as a result of a prior disciplinary action, Atty. Griev. Comm'n v. Shuler , 443 Md. 494, 117 A.3d 38 (2015). Respondent filed written exceptions. Concurrently with filing her exceptions, Respondent filed a motion requesting the Court to sanction Assistant Bar Counsel Paulick for making allegedly false assertions during the proceedings regarding the amount and payment of the legal fee to Respondent on Mr. Keene's behalf, by his mother, Ms. Gale Scoggins. The Court denies Respondent's motion to sanction Assistant Bar Counsel Paulick.

Oral argument before the Court of Appeals on Respondent's exceptions and Bar Counsel's recommendation for disbarment was scheduled for a date in March 2017, with notice to the parties. Respondent sought a continuance. The Court, by order of 29 March 2017, granted a continuance to 3 April 2017 and required Respondent's appearance at that time.

Assistant Bar Counsel Paulick appeared before the Court on April 3. Respondent did not, nor did she communicate contemporaneously with the Court as to why she could not appear. The case was submitted on the papers and record. The Court entered a per curiam order disbarring Respondent the same day.³ We explain now the basis for that order.

STANDARDS OF REVIEW

As Chief Judge Barbera noted, writing for the Court recently in Atty. Griev. Comm'n v. Sweitzer , 452 Md. 26, 37, 156 A.3d 134, 140 (2017), reconsideration denied (Apr. 21, 2017):

"In attorney discipline proceedings, this Court has original and complete jurisdiction." Attorney Grievance Comm'n v. Page , 430 Md. 602, 626, 62 A.3d 163 (2013). If no exceptions to the hearing judge's findings of fact are filed, this Court may treat the facts as conclusively established. Attorney Grievance Comm'n v. Kwarteng , 411 Md. 652, 659–60, 984 A.2d 865 (2009). If exceptions to the hearing judge's findings of fact are filed, we will not overrule the findings unless we are persuaded that they are clearly erroneous. Attorney Grievance Comm'n v. Mahone , 435 Md. 84, 104, 76 A.3d 1198 (2013). This Court conducts a de novo review of the hearing judge's conclusions of law. Attorney Grievance Comm'n v. Garcia , 410 Md. 507, 515, 979 A.2d 146 (2009). Accordingly, this Court must determine, based on a "clear and convincing" standard of proof, whether sufficient evidence existed in the record to support the hearing judge's conclusions of law. Attorney Grievance Comm'n v. Tanko , 427 Md. 15, 27, 45 A.3d 281 (2012).

HEARING JUDGE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW

Satisfied that Bar Counsel met the clear and convincing evidence standard placed on it (see Md. Rule 16–757(c)) in attorney disciplinary cases, the hearing judge found the following facts, which we summarize.

Ms. Gale Scoggins, mother of Calvin Keene and herself apparently a person of modest means, retained Respondent in March 2011 to represent her son in pursuit of a modification of sentence in two criminal cases in the Circuit Court for Prince George's County.⁴ Scoggins paid Respondent $750 in cash to obtain her representation of Keene in the modification matter. According to Md. Rule 4–345(e)(1)(B), governing the revisory power of a sentencing court over sentences, the sentencing court's ability to revise/modify a sentence expires five years "from the date the sentence originally was imposed ...." Accordingly, because Keene had been sentenced on 14 August 2008, any modification had to be acted on or before 14 August 2013, or the sentencing court would lose its authority to act in such regard.

Respondent entered her appearance as Counsel for Keene in the two criminal matters on 8 June 2011. Although she acted promptly to gain access to Keene's pre-trial sentencing report in the cases (which the trial court granted on 14 June 2011), Respondent's communications with Scoggins about the sentence modification initiative became sporadic quite soon thereafter. According to Scoggins, many of her telephone and text messages to Respondent seeking status updates went unanswered for weeks at a time.

According to Scoggins, it was not until 3 April 2012 that Respondent recommended that October 2012 would be the "best time" to file a Motion for Modification of Sentence "because that would be five years after the offense." Respondent promised to visit Keene in jail in May of 2012 and to seek a meeting later in April 2012 with the State's Attorney's Office to attempt to gain support for sentence modification. Respondent did none of these things in the time frames promised or otherwise, and continued not to respond timely to Scoggins's letters seeking updates on efforts.

On 5 February 2013, Scoggins sent Respondent an email expressing concern about Respondent's uncommunicative posture. Respondent responded to the email, offering excuses about having personal problems that prevented her from receiving telephone, email, or regular mail. She promised that she would visit Keene and file the modification motion later in February. She did not accomplish either task, however. Similar representations were made by Respondent to Scoggins in March, May, July, and August of 2013, all of which proved equally hollow.

In a surprise to Scoggins, Respondent requested on 2 October 2013 an additional $500 to complete the representation of Keene, stating that Respondent discovered only lately that Keene had been sentenced in two criminal cases, rather than one (seemingly overlooking the fact that on 8 June 2011 she entered her appearance as Keene's counsel in both cases). On or about 4 February 2014, Scoggins paid an additional $300, as an installment, to Respondent.

The cycle of unfulfilled promises to act by Respondent resumed in May, June, and September of 2014. On 15 October 2014, Respondent represented to Keene that she was "in the process of filing" a Motion for Post–Conviction Relief on his behalf. At the same time, she solicited an additional $400, noting that the new total fee would be $1,500. Respondent stated, however, that the payment of the balance claimed would not prevent her from completing her representation of Keene.⁵

Apparently appreciating that, by operation of the time bar of Md. Rule 4–345(e)(1)(B), the trial court no longer could grant relief to modify his sentences, Keene acquiesced initially in January 2015 to Respondent's suggestion to file instead a post-conviction petition. Despite all that had gone before, Respondent, in February 2015, now used the excuse that, because pursuit of the modification motion was no longer viable, she needed more time to draft a post-conviction petition. She promised Scoggins that it would be filed before the end of March 2015. Instead, Respondent filed a motion to withdraw as Keene's counsel on 30 April 2015, having not filed any of the motions for relief she was engaged to prepare and prosecute, when she learned that Keene had filed a bar complaint about her representation.

Indeed, Keene filed with Petitioner on 16 February 2015 a complaint against Respondent. Respondent did not respond to Bar Counsel's multiple requests in February and March for a response to the complaint. She did respond, of a sort, to Bar Counsel's third invitation by advising Bar Counsel that she had been diagnosed with pneumonia

on or about 26 February 2015. Thereafter, Respondent rebuffed Bar Counsel's investigatory requests for information and indicated that she would respond, if at all, solely to emails. Respondent's intransigence continued to the...