Attorney Grievance Com'n of Maryland v. James

• Decision Date: 01 September 1992
• Docket Number: No. 21,21
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard Allen JAMES. Misc. Docket (Subtitle BV),
• Court: Maryland Court of Appeals

Page 174

333 Md. 174

634 A.2d 48

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Richard Allen JAMES.

Misc. Docket (Subtitle BV) No. 21, Sept. Term, 1992.

Court of Appeals of Maryland.

Dec. 13, 1993.

Melvin Hirshman, Bar Counsel, and Glenn M. Grossman, Asst. Bar Counsel for the Attorney Grievance Com'n of Md.

Ralph W. Powers, Jr., Upper Marlboro, for respondent.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, KARWACKI and ROBERT M. BELL, JJ.

RODOWSKY, Judge.

This disciplinary complaint against the respondent, Richard Allen James (James), was referred for hearing to Judge Graydon S. McKee, III of the Circuit Court for Prince George's County. Judge McKee has concluded that James engaged in conduct involving dishonesty, deceit, fraud and misrepresentation, in violation of Rule 8.4(c) of the Maryland Rules of Professional Conduct. That conclusion is based on the fact that James "signed his name along with the name of [the Division of] Parole and Probation on a check made out to Parole and Probation and [James] deposited the check into [his] escrow account without permission from Parole and Probation." That same fact underlies a conclusion that James also engaged in conduct prejudicial to the administration of justice in violation of Rule 8.4(d). Judge McKee further found that James violated Rule 1.5(c) "by failing to communicate the terms of a contingent fee agreement in writing." Set forth below are the rather unusual facts out of which these violations arose.

James was admitted to the Bar of this Court in 1971. His office is in Greenbelt. In the early 1980s he began representing Andrea Lockett (Lockett), the owner of a landscaping and irrigation business, by collecting accounts and by defending customers' claims. In March 1988, Lockett became aware that one of her employees, Mary Jannette Seibly (Seibly), was embezzling from her. Lockett reported the matter to the Anne Arundel County police, and she also consulted James. James filed a civil action on Lockett's behalf against Seibly in the Circuit Court for Anne Arundel County in April 1988. Seibly was indicted on nine counts of forgery, nine counts of uttering, and one count of theft in May 1988.

When James undertook the Seibly matter he was also pursuing one account collection for Lockett and defending her in one other case. Lockett paid James $1,200 as a deposit toward fees on all three of these matters. James did not furnish Lockett with any written disclosure of the fee arrangement on the Seibly matter.

Seibly's attorney in the criminal prosecution and as defendant in Lockett's civil action was Don F. Lindner (Lindner). Lindner negotiated a plea bargain with the Assistant State's Attorney, Frederick M. Paone (Paone), which was accepted by Judge Bruce C. Williams. Prior to sentencing in the criminal case, Seibly had made partial restitution directly to Lockett through two payments of $5,000 each. On February 15, 1989, Judge Williams placed Seibly on three years probation, one condition of which was that restitution of the balance owed to Lockett, an additional $10,000, be made within nine months.

Seibly, as a probationer, was assigned to senior agent Carolyn Fidgeon (Fidgeon) of the Annapolis office of the Division of Parole and Probation. A statute requires that restitution payments be made to the Division of Parole and Probation. Md.Code (1957, 1992 Repl.Vol.), Art. 27, § 640. Fidgeon routinely would have advised Seibly of this requirement.

Seibly had not made any additional restitution payments by September 1989, but she had a job opportunity in California that would double her income. Fidgeon obtained the sentencing court's permission for Seibly to move to California, and Seibly did so. Seibly, however, did not make restitution by the due date of November 15, 1989. At the end of November Fidgeon charged Seibly with violation of probation, and a bench warrant was issued February 1, 1990.

Into the spring of 1990 Seibly had not contacted her probation agent or her attorney. Then, Lindner received from Seibly a cashier's check issued by a California savings and loan association dated May 15, 1990, in the amount of $10,405 and payable to "Division of Parole & Probation Md." Lindner hand delivered that check to James in the Anne Arundel County courthouse in Annapolis during a chance encounter on May 22, 1990.

James testified before Judge McKee that he and Lindner discussed that Parole and Probation would not accept a payment that was not in the form of a certified check or money order, and that "[t]here was no other reason for Mr. Lindner to give me the check." Lindner did not testify in Bar Counsel's case in chief. When called by Bar Counsel for very brief rebuttal testimony, Lindner was asked if he had ever told James that Parole and Probation would not accept the Seibly check as it was presented, and Lindner replied, "No, sir, not to my knowledge." Judge McKee did not resolve this factual conflict. ¹

James also testified that he did not focus on the amount of the check, but simply treated it as the balance of the restitution due to Lockett. In point of fact, $205 of the $10,405 represented reimbursement of court costs in the criminal cause, and $200 represented a two percent collection fee which Parole and Probation is authorized to charge "for administrative costs of collecting payments or property." Art. 27, § 640(d)(4).

After delivering the check to James, Lindner, by letter of May 25, 1990, with copies to Paone and to James, wrote to Judge Williams advising that Lindner had "received a certified check for the entire amount of restitution," and that the "check was promptly given to the complaining witness[']s attorney, Richard James." Lindner requested that the outstanding bench warrant be quashed and that the violation of probation charge be dismissed. At the same time Lindner wrote only to James requesting that the civil action against Seibly be dismissed. The second paragraph of that letter reads:

"I trust that you have been successful in endorsing the check and providing the proceeds due to your client to her."

On May 31 Paone, with copies to Lindner and James, wrote to Judge Williams confirming the State's lack of objection to striking the warrant.

On the evening of the day that he received the check from Lindner, James so advised his client by telephone. Lockett, who was under the impression that Seibly had fled, considered the recovery to be found money. Lockett testified that James proposed a fee of "between like twenty and thirty percent." That was "fine" with Lockett.

At the opening of business at the Annapolis office of Parole and Probation on May 23, 1990, James appeared with the check. Agent Fidgeon was on extended sick leave, and James spoke with Field Supervisor-I Patricia Vale (Vale). Vale testified that James wanted to deposit the check in his escrow account and to pay his client, the victim in the case, but James did not know the probationer's name. Vale said she advised that she could not endorse the check but that, if the probationer's name and account number were known and furnished to Fidgeon, the check could be sent to the Division Central Collection Unit in Baltimore. Vale further testified:

"I told [James] that the checks are suppose[d] to be certified checks or money orders; however, that I knew that on other occasions they had accepted other types of checks and that when we identify the probationer's name, we could call Central Collection and find out if indeed this check would be acceptable."

Vale acknowledged that personal checks had been returned to probationers because they had not been certified. When asked if it was correct that the Division's policy was that payments be by certified check or money order, Vale replied, "[T]hat is the written policy."

Vale made a copy of the face of the check which James took with him, and Vale wrote a note for Fidgeon describing the events.

Later that day James went to his bank in Greenbelt where he endorsed the check, "Division of Parole & Probation Md-Pay to escrow account of Richard A. James Attorney Acc # 58-1070-7." James subscribed that endorsement by what he admitted is his signature. Also on May 23 James wrote to Lockett advising her that "$10,400" [sic] had been deposited into his escrow account, that the check was "not certified," and that disbursement would be made after the check cleared.

Later in May Lockett obtained a check from James for $7,700, representing her net recovery from Seibly. The record is silent as to the precise calculation of this net amount. James testified that he had advanced the court costs and the fee of a private process server in the civil action against Seibly.

Fidgeon first saw Vale's note to her on May 29. After two unsuccessful attempts in June to reach James, Fidgeon spoke with James by telephone on July 6, 1990. Fidgeon's memorandum of that conversation records James as saying that Vale had either endorsed the check from Seibly or authorized James to endorse it. Fidgeon denied that that was possible, and the conversation became heated. Fidgeon also pointed out that $405 of the check's face amount was not restitution payable to Lockett.

Thereafter Fidgeon, throughout July 1990, made a number of telephone calls to Lockett, Lindner, Paone, Judge Williams's chambers, and the California savings and loan, from which she obtained a copy of the face and reverse sides of the $10,405 cashier's check.

Immediately following his July 6 telephone conversation with Fidgeon, James wrote to Lindner, with copies to Fidgeon, to Lockett, and to Paone, remitting $405 by James's check. James proposed that Lindner return the funds to Seibly or to Parole and Probation, "whichever you feel is proper." The parties seem implicitly to accept that Parole and Probation ultimately received the $405.

James testified that, later in July, he received a telephone call from Paone. As a result of that conversation James,...