Attorney Grievance Com'n of Maryland v. Milliken

• Decision Date: 01 September 1995
• Docket Number: Nos. 46,49,s. 46
• Citation: 704 A.2d 1225,348 Md. 486
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Herschel D. MILLIKEN. Misc. Docket (Subtitle BV),
• Court: Maryland Court of Appeals

Page 486

348 Md. 486

704 A.2d 1225

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Herschel D. MILLIKEN.

Misc. Docket (Subtitle BV) Nos. 46, 49, Sept. Term, 1995.

Court of Appeals of Maryland.

Jan. 22, 1998.

Melvin Hirshman, Bar Counsel, and Raymond A. Hein, Asst. Bar Counsel, for Attorney Grievance Commission of Maryland, petitioner.

Herschel D. Milliken, Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE, RODOWSKY, CHASANOW, RAKER and WILNER, JJ., and KARWACKI, J. (retired, Specially Assigned).

RAKER, Judge.

Acting through Bar Counsel, the Attorney Grievance Commission filed two petitions for disciplinary action against Herschel D. Milliken for violations of the Rules of Professional Conduct. On February 14, 1996, this Court consolidated the two petitions. We referred the matter, pursuant to Maryland Rule BV9 (b) ¹ to Judge Carol E. Smith of the Circuit Court for Baltimore City to make findings of fact and conclusions of law. Following an evidentiary hearing and oral argument involving ten separate complaints, Judge Smith found evidence sufficient to sustain nine of the ten complaints. Judge Smith found that Milliken had repeatedly violated Rules 1.1, ² 1.3, ³ 1.4, ⁴ 1.15(a), (b), ⁵ 1.16(d), ⁶ 3.2, ⁷ 5.3(b), ⁸ 5.4(a), ⁹ 8.1, ¹⁰ 8.4, ¹¹ of the Maryland Rules of Professional Conduct, and Maryland Rules BU7(a) ¹² and BU9. ¹³ We set forth those findings and conclusions as follows:

FINDINGS OF FACTS AND CONCLUSIONS OF LAW

Introduction

"Herschel D. Milliken, Esquire is the subject of two Petitions for Disciplinary Action filed by the Attorney Grievance Commission ("AGC") of Maryland pursuant to Maryland Rule BV9. Bar Counsel, acting on the direction of the Review Board and pursuant to Maryland Rule BV7, filed charges against the Respondent pertaining to eight separate Complaints received by the Review Board. The charges related to each Complaint were set forth in the Petition for Disciplinary Action, case number 96022071. On January 18, 1996, the Court of Appeals ordered that the charges be transmitted to the Circuit Court for Baltimore City for service and hearing in accordance with Maryland Rule BV9. On February 13, 1996, Bar Counsel, again acting on the direction of the Review Board, filed a second set of charges against Respondent Milliken pertaining to two Complaints by former clients. The charges related to these two Complaints were set out in the second Petition for Disciplinary Action, Case number 96053040. On February 14, 1996, the Court of Appeals ordered that these new charges be transmitted to the Circuit Court for Baltimore City, and further ordered that the Petitioner's Motion for Consolidation of these two matters for a hearing of charges be granted.

"The charges in both Petitions allege that the Respondent engaged in misconduct, defined by Maryland Rule BVl(k) as "an act or omission by an attorney, individually or in concert with any other person or persons which violates the Maryland Rules of Professional Conduct, as adopted by Rule 1230, whether or not the act or omission occurred in the course of an attorney-client relationship." The hearings on both Petitions for Disciplinary Action were held before the undersigned judge, and took place over the course of several days in April and May, 1996. Raymond Hein, Assistant Bar Counsel, represented the Petitioner, Attorney Grievance Commission of Maryland. Herschel D. Milliken, the Respondent, proceeded pro se. In support of its allegations, Petitioner's counsel entered nineteen exhibits into evidence.

Standard of Proof

"Maryland Rule BVlO(d) provides that the hearing of charges is governed by the same rules of law, evidence, and procedure as in civil proceedings in equity. Consequently, factual findings shall be supported by clear and convincing evidence. In contrast, an attorney establishing a defense, including mitigating circumstances, need only prove factual matters by a preponderance of the evidence. Attorney Grievance Commission v. Bakas, 322 Md. 603, 589 A.2d 52, modified, 323 Md. 395, 593 A.2d 1087 (1991).

Background

"At the hearings before this Court in April and May, 1996, the following facts were established by clear and convincing evidence.

"The Respondent attended the University of Baltimore School of Law, and obtained his Juris Doctor degree in 1979. Mr. Milliken was admitted to practice in Maryland in September 1981. Except for one year when he worked for the firm of Singleton, DeShiell & Robinson, Milliken has historically engaged in the general practice of law as a sole practitioner. The Respondent has always practiced law in Baltimore City, and currently maintains a law office in his home at 1509 East 36th Street, Baltimore, Maryland.

I. Complaint of Tonya L. Steward (Dorsey)

"As a preliminary matter before this Court, Petitioner requested that Mr. Milliken stipulate to the submission of the IPT of Ms. Dorsey because she had moved from her last known address, and the Petitioner was unable to locate her. The Respondent refused to stipulate to this witness' testimony and stated that he was interested in conducting a cross-examination of Ms. Dorsey on certain matters. The Respondent had an opportunity to cross-examine Ms. Dorsey at the IPH on March 21,1994. The Respondent also stated that he wished to see if the witness would recant her testimony. The Respondent further suggested that Petitioner's Counsel had not satisfactorily proven Ms. Dorsey's unavailability as defined by Maryland Rule 5-804(a).

"Finding that Ms. Dorsey was absent from the hearing and that Bar Counsel had made reasonable, albeit unsuccessful, attempts to procure her attendance through the issuance of subpoenas at her last known address, this Court declared Ms. Dorsey to be "unavailable" in accordance with Maryland Rule 5-804. Due to Mr. Milliken's prior opportunity to cross-examine Ms. Dorsey, this Court held that Ms. Dorsey's former testimony at the IPH was admissible under the standards set forth in Maryland Rule 5-804.

"At the April 16, 1996 hearing before this Court, the Petitioner introduced evidence and testimony obtained through its investigation of this Complaint and established the following facts. Tonya Dorsey met Respondent in May, 1993, and hired him to represent her in a divorce case. A fee was agreed upon at that time. Although there was a discrepancy between Ms. Dorsey's testimony that the Respondent wanted $700.00 and Respondent's testimony at the Circuit Court hearing that his standard fee in such a matter was $350.00, it is clear from the evidence that Ms. Dorsey wrote a check on May 5, 1993, to Herschel D. Milliken payable in the amount of $200.00 as partial payment of his fee for representation. There was no written retainer agreement and she did not receive any correspondence either during, or after the period in which the Respondent was supposed to be representing her.

"Ms. Dorsey's case had already been filed and a hearing was scheduled for June 4, 1993.

"The Respondent accepted and kept the $200.00 paid to him by Ms. Dorsey despite the fact that he never performed any work beyond conducting the initial interview. He never reviewed the court file to check the status of Ms. Dorsey's case. He conceded that he had no justification for keeping Ms. Dorsey's $200.00 payment and he did not deposit her check in a trust account. Instead, he cashed it immediately. Curiously, Respondent noted his trust account number on the back of the check. However, this was done to identify him as a person who maintained an account with the bank in order that the bank would cash the check, and not for the purpose of placing it in the trust account.

"In fact, Mr. Milliken admitted that he tried to liquidate checks as soon as possible. It appears from his testimony that generally checks were either cashed immediately or placed directly in his operating account.

"Mr. Milliken testified several times over the course of the hearing that it was his policy to be paid in full before appearing in court or performing any work. Indeed, he suggested in this particular instance that he did not show up because he had not been paid the balance. Both the Respondent and Ms. Dorsey agreed that her case already had been filed and a trial was scheduled for June 4, 1993. Although she left several messages on the Respondent's answering machine, Ms. Dorsey was unable to reach him to discuss her divorce and the balance of the fee. After paying Mr. Milliken the $200.00 retainer, she was not contacted by him until June 3, 1993, the day before her hearing. During this phone conversation, the Respondent instructed Ms. Dorsey to meet him in court the next day with the balance of his fee. However, the Respondent failed to appear the next day for Ms. Dorsey's hearing. Ms. Dorsey was forced to proceed without an attorney. The Respondent telephoned Ms. Dorsey on June 5, 1993 to apologize for his behavior and promised to refund the money she had paid. However, no refund was ever made.

"In light of the clear and convincing evidence as set forth above, this Court finds that the Respondent violated Maryland Rule 1.1 of the Rules of Professional Conduct which provides that "a lawyer shall provide competent representation to a client" and Maryland Rule 1.3 which requires that an attorney act "with reasonable diligence and promptness in representing a client." Mr. Milliken's failure to contact his client, to review her file and prepare her case, and to appear in court are clear violations of these rules. Further, the Respondent's lack of communication with Ms. Dorsey, which was evidenced by his neglecting to send her correspondence, failing to respond to her phone messages and/or failing to contact her by telephonic or other means of communication to inform and prepare her for trial violates Maryland Rule l.4(a) which obligates a lawyer to "keep a client reasonably informed about the status of the matter and promptly comply with reasonable requests for information."...