ATTORNEY GRIEVANCE COM'N v. Zdravkovich

• Decision Date: 09 June 2003
• Docket Number: Misc. Docket AG No. 41
• Citation: 375 Md. 110,825 A.2d 418
• Parties: ATTORNEY GRIEVANCE COMMISSION v. Dushan S. ZDRAVKOVICH.
• Court: Maryland Court of Appeals

825 A.2d 418

375 Md. 110

ATTORNEY GRIEVANCE COMMISSION v. Dushan S. ZDRAVKOVICH.

Misc. Docket AG No. 41, Sept. Term, 2002.

Court of Appeals of Maryland.

June 9, 2003.

Melvin Hirshman, Bar Counsel, John C. Broderick, Asst. Bar Counsel for Atty. Grievance Com'n, for petitioner.

Carlton M. Green (Walter W. Green), College Park, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

BATTAGLIA, J.

Pursuant to Maryland Rule 16-709(a),¹ Bar Counsel, at the discretion of the Review Board and on behalf of the Attorney Grievance Commission, Petitioner, filed a Petition for Disciplinary Action against Respondent, Dushan S. Zdravkovich, who has been a member of the Bar of this Court since November 1, 1981. The Respondent had been suspended indefinitely from the active practice of law on December 4, 2000, effective thirty days thereafter. Attorney Grievance Comm'n v. Zdravkovich, 362 Md. 1, 762 A.2d 950 (2000).²

In his Petition, Bar Counsel alleged that, with respect to a complaint filed by Milton E. Siegert, Jr., and with respect to Respondent's representation of Charles Hunter, III, Respondent violated Maryland Rules of Professional Conduct (hereinafter "MRPC") 1.4 (Communication)³, 1.15 (Safekeeping of Property),⁴ 8.1 (Bar Admission and Disciplinary Matters),⁵ 8.4 (Misconduct),⁶ Maryland Code, § 10-306 of the Business Occupations and Professions Article (1989, 2000 Repl.Vol.,),⁷ and Maryland Rule 16-607.⁸

The procedural history of this matter has importance because of Respondent's exceptions, so it will be reiterated in detail. After the Honorable Michael E. Loney of the Circuit Court for Anne Arundel County was designated, on August 23, 2003, to hear and to determine the charges contained in the Petition for Disciplinary Action,⁹ the Respondent, represented by counsel, propounded Interrogatories and a Request for Production of Documents, which were "hand-delivered" on August 29, 2002 to Bar Counsel. "Irreconcilable differences" arose between Respondent and his counsel about the appropriate way to respond to the Petition, whether by Answer or Motion for More Definite Statement.¹⁰ Counsel for Respondent moved to withdraw their appearances on September 26 and 30, 2002. The order striking their appearances was entered on October 4, 2002 by Judge Loney. Appended to that order was a pleading captioned, "Notice to Employ New Counsel", which stated:¹¹

It appears from the record in the above entitled case that you are not presently represented by counsel.

You are hereby notified this day, that your failure to have new counsel enter his appearance in this case within fifteen (15) days after service upon you of this notice shall not be grounds for postponing any further proceedings, concerning the case. You are warned that without counsel to protect your interests in the case, you risk a nonsuit or judgment by default and all court costs being ordered against you by the court.

All future notices to you will be sent to the address to which this notice is being sent. Please inform the clerk of any change of address. Failure to do so may result in a default judgment against you.

The day before the order striking appearance of counsel was entered, October 3, 2002, Bar Counsel filed a Notice with the Court, pursuant to Maryland Rule 2-401(d)(2),¹² that on October 1, 2000, Interrogatories and Request for Admissions of Fact addressed to Respondent were sent directly to him. On October 18, 2002, Bar Counsel moved for an Order of Default against Zdravkovich alleging that he was served, on September 1, 2002, with a copy of the Petition for Disciplinary Action and failed to respond to the charges within 15 days of the date of service pursuant to order of the Court of Appeals dated August 13, 2002, a copy of which also had been served upon Respondent.

Judge Loney granted the Motion on October 30, 2002 and entered an Order of Default against the Respondent informing him that he could move to vacate the order within 30 days after entry and further giving leave to Bar Counsel to present "such evidence as it deems necessary to allow the court to carry out its function under Maryland Rule 16-711a."¹³ A hearing was scheduled for December 18, 2002. The proceedings thereafter became more volatile when on November 8, 2002, Respondent filed a Motion for More Definite Statement, alleging that the Petition for Disciplinary Action "sets forth no facts, whatsoever, describing the mechanism through which these alleged violations occurred" and "no facts, whatsoever, describing the violations of the Respondent" and that, as a result, he "cannot frame an answer as required by Maryland Rule 2-323." Bar Counsel responded with a motion to Strike, alleging that Respondent's Motion for More Definite Statement would have been permissible under Rule 2-322(d) "before answering," "[y]et the time within which the Respondent is obliged to answer has passed making his motion untimely." Bar Counsel further alleged that the more definite statement Respondent sought to obtain "serve[s] in fact to replace an attempt at discovery, a procedure which, through his default, the Respondent may have abrogated," noting that, "Respondent had an opportunity to attend and participate in an Inquiry Panel proceedings[sic]" during which he "obtained the entire investigative file of the Petitioner, and had available to him the full measure of the subpoena powers granted under Maryland Rule, then in effect, 16-706d3(c)."

Respondent, on December 9, 2002, filed an Opposition to the Motion to Strike and also moved to strike or set aside the Order of Default, ostensibly because "the procedural requirements for entry of Order of Default had not been met." The day after these pleadings were filed, a "Blue Note" denying Respondent's Motion for More Definite Statement was filed, which had been signed by Judge Rodney C. Warren on December 2, 2002.¹⁴

On December 18, 2002, Judge Loney held the previously scheduled hearing in the case and concurred with Judge Warren in striking Respondent's Motion for More Definite Statement because it was "time-barred." Judge Loney also denied the Motion to Strike or in the Alternative to Set Aside the Order of Default, which the Respondent argued required a proof of service. Two motions also were filed by Respondent in Court that day, a Motion to Strike Petitioner's Request for Discovery and a Motion for Order of Default based upon the alleged failure of Bar Counsel to respond to discovery, i.e., requests for production of documents, interrogatories, and a notice of deposition, all of which had been sent by Respondent's prior counsel on August 29, 2002. Both of those motions were denied.

After the hearing judge entered these rulings, Respondent left the proceedings. Bar Counsel introduced the unresponded to Requests for Admissions, which were admitted, the Petition for Disciplinary Action, the averments of which were admitted by operation of the default order, and proposed Findings of Fact. On January 6, 2003, the hearing judge entered the following Findings of Fact and Conclusions of Law:

"This matter came before the Court on December 18, 2002, on a Petition for Disciplinary Action filed by the Attorney Grievance Commission of Maryland against Dushan S. Zdravkovich. The Petition was filed in accordance with Maryland Rule 16-709, et seq. and an Order of Default was entered against Respondent for failing to answer the Petition. At the hearing, the Court granted the Request for Admissions of Facts and held the case sub curia. The Court having reviewed the file, as well as the request for admissions of facts, and having considered all of the case law cited and the arguments of John C. Broderick, Esquire, Bar Counsel, the Court makes the following findings of facts and conclusions of law as required by the Maryland Rules of Procedure.

BACKGROUND

"Respondent, Dushan S. Zdravkovich, was admitted to the Maryland Bar on November 1, 1981. Presently, Respondent is suspended indefinitely from the active practice of law. (See Attorney Grievance Commission v. Zdravkovich, 362 Md. 1, 762 A.2d 950 (2000)

).

"Petitioner, Attorney Grievance Commission of Maryland, filed a Petition for Disciplinary Action in the Court of Appeals. On August 13, 2002, the Court of Appeals ordered that the matter be transmitted to the Circuit Court for Anne Arundel County to be heard and determined.

"On September 1, Counsel for Respondent accepted service of the Petition on behalf of Respondent. On October 1, Petitioner served Respondent Interrogatories and Request for Admission of Facts.15

15 The hearing judge included a footnote 1 in his opinion that stated, "The Interrogatories and Request for Admissions of Fact were mailed directly to Respondent, not his counsel."

"On October 4, 2002, the Court granted the Motion to Strike the Appearance of Respondent's Counsel Thomas A. Pavlinic, Esquire and Steven J. Parrott, Esquire. On October 30, 2002, the Court entered an Order of Default for Respondent's failure to answer the Petition. On December 18, 2002, the Court denied Respondent's Motion for a More Definite Statement.

"On December 18, 2002, the case was called in open court. Respondent was present and represented himself Pro-Se. He presented a Motion to Strike or in the Alternative Motion to Set Aside Order of Default, Motion for Order of Default, and Motion to Strike Petitioners Requests for Discovery. The Court denied all the Motions and Respondent elected to leave the hearing. The Court granted the Request for Admissions of Facts and held the case sub curia.

Complainant Milton E. Siegert, Jr.

FACTS

"Complainant, Milton E. Siegert, Jr., and his brothers, retained the Respondent to represent them in matters that arose as a result of the death of their father, Milton Edward Siegert, Sr. At the request of Respondent, the Siegerts paid to Respondent $300 which was to be used to retain and employ an investigator, Carl Yowell.

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