Attorney Grievance Com'n v. Gisriel

• Decision Date: 18 June 2009
• Docket Number: Misc. Docket AG No. 3, September Term, 2008.
• Citation: 974 A.2d 331,409 Md. 331
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Michael U. GISRIEL.
• Court: Court of Special Appeals of Maryland

974 A.2d 331

409 Md. 331

ATTORNEY GRIEVANCE COMMISSION of Maryland v. Michael U. GISRIEL.

Misc. Docket AG No. 3, September Term, 2008.

Court of Appeals of Maryland.

June 18, 2009.

Dolores O. Rigell, Asst. Bar Counsel (Melivin Hirshman, Bar Counsel, Atty., Grievance Commission of Maryland), for petitioner.

Timothy F. Maloney of Joseph, Greenwald & Laake, P.A. of Greenbelt, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

BATTAGLIA, J.

Michael Gisriel, ("Gisriel" or "Respondent"), was admitted to the Bar of this Court on December 29, 1976. On March 19, 2008, the Attorney Grievance Commission ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a),¹ filed a petition for disciplinary action against Gisriel, charging numerous violations of the Maryland Rules of Professional Conduct ("MRPC" or "Rule"), including Rule 1.1 (Competence),² Rule 1.3 (Diligence),³ Rule 1.4 (Communication),⁴ Rule 1.15 (Safekeeping Property),⁵ Rule 3.1 (Meritorious Claims and Contentions),⁶ Rule 8.1 (Bar Admission and Disciplinary Matters),⁷ and Rule 8.4 (Misconduct).⁸ The charges involved Gisriel's representation of Kenneth J. Barnhart and his wife, Marcia. This Court referred the matter to Judge Timothy J. Martin of the Circuit Court for Baltimore County for a hearing to determine findings of fact and conclusions of law pursuant to Maryland Rule 16-757.⁹

On November 19, 2008, Judge Martin held an evidentiary hearing, during which Gisriel represented himself. By order dated December 18, 2008, we granted an extension for filing the Findings of Fact and Conclusions of Law until February 4, 2009. On January 23, 2009, Judge Martin issued Findings of Fact and Conclusions of Law ("Findings"), in which he found, by clear and convincing evidence, that Gisriel's acts and omissions constituted violations of Rules 1.1, 1.3, 1.4, 1.15, 3.1, 8.1, and 8.4:

Findings of Fact

To the extent these findings of fact are based upon Petitioner's evidence, they are found by clear and convincing evidence. To the extent they are based upon Respondent's evidence, they are found by a preponderance of evidence. The facts found are as follows:

1. Michael Gisriel (Respondent) was admitted to the Bar of the Court of Appeals of Maryland in December 1976.

2. Thereafter Respondent practiced primarily in real estate law, deeds, land use, and real estate settlements.

3. Respondent has some limited experience in commercial litigation.

4. During times relevant to this matter, Respondent maintained an office for the practice of law in Towson, Baltimore County, Maryland. He operated with other attorneys in a law firm known as the Law Offices of Foard, Gisriel, O'Brien & Ward, L.L.C.

5. For approximately six years Respondent hosted a real estate radio show, and for three years wrote a question and answer column on real estate matters for the Baltimore Sun. As a result, the Respondent received numerous requests for pro bono service and provided same from time to time.

6. On February 16, 2002, Kenneth J. Barnhart and his wife, Marcia Barnhart (Barnharts) signed a Residential Contract of Sale for the purchase of real property in Frederick County, Maryland. The contract was submitted through the Barnharts' agent, Len Moyer/Remax Columbia (Moyer/Remax), to Leonard Martin of Gold Key Real Estate (Martin & Gold Key), agent for the seller, John Dunenfeld (Dunenfeld).

7. The Barnharts made a $5,000 deposit by check which was held by Moyer.¹⁰

8. The contract signed by the Barnharts contained a mediation provision which mandated that neither party could initiate any legal action without first submitting any claim arising out of the contract to mediation.

9. For various financial reasons, the Barnharts could not consummate the transaction with Dunenfeld and sought to terminate the contract.

10. On March 9, 2002 the Barnharts tendered an agreement to terminate the contract to Dunenfeld.

11. Dunenfeld refused their tendered agreement to terminate the contract.

12. A third party referred the Barnharts to the Respondent for legal assistance in this matter.

13. On March 18, 2002, K. Barnhart met with the Respondent for the first time. After a brief discussion with the Respondent, K. Barnhart retained the Respondent to assist him and his wife in terminating the contract and recovering the $5,000 deposit.

14. During this meeting with K. Barnhart, Respondent was privy to the original contract of sale and all other relevant documents. Neither K. Barnhart nor the Respondent could remember if the Respondent read this contract during the initial meeting.

15. K. Barnhart paid the Respondent $500 to accomplish the desired result with no agreement as to future expenses of Respondent and without any written retainer agreement.

16. On the same day (March 18, 2002), the Respondent faxed and mailed a letter to Martin (Gold Key) regarding the termination of the contract. The Respondent alluded to three reasons for the termination and indicated: "therefore, there has been no true meeting of the minds and the contract is a nullity and is hereby terminated." By this letter, Respondent requested the return of the deposit check.

17. The Respondent received no response to this letter.

18. At some point subsequent to the initial meeting of the Respondent with K. Barnhart, K. Barnhart asked his wife, M. Barnhart, to handle this matter and be the primary contact by and between the Respondent and the Barnharts. The majority of the communications between the Barnharts and the Respondent thereafter was made by M. Barnhart, who is now deceased.

19. In June or July of 2002, as a result of the Respondent's efforts, Respondent determined that Dunenfeld had sold the property to a third person in June of 2002. Neither he nor the Barnharts were notified of this fact by Moyer, Martin, or Dunenfeld.

20. At no time prior to the Respondent learning of the sale of the Dunenfeld property had Dunenfeld invoked the mediation provision contained in the contract of sale. No mention of it had been made by either side.

21. Between March 18 and July 9, 2002 the Respondent made occasional telephone calls to Martin regarding this matter.

22. Respondent received no meaningful or satisfactory response to these inquiries.

23. On July 9, 2002, the Respondent wrote Martin indicating his knowledge of the sale of the subject property and making yet another demand for the return of the deposit. In that letter he indicated that absent resolution, suit would have to filed.

24. Respondent received no real response to the July 9 letter. Both he and the Barnharts were frustrated at the lack of response and failed resolution of this matter.

25. At no time between July 9 and August 15, 2002 did Martin or Dunenfeld suggest or invoke mediation to resolve this dispute.

26. Respondent discussed the filing of a lawsuit with K. Barnhart against Moyer, Martin, and Dunenfeld sometime in the latter part of July and early part of August, 2002.

27. The Barnharts had no legal training and were completely dependent on the Respondent as to the advisability of filing said litigation.

28. The Respondent believed that the only way to get the attention of Dunenfeld or Martin was to initiate litigation. The Respondent believed that the contract had been terminated by the lack of any response, Dunenfeld's sale of the property, and believed that the contract was a nullity.

29. Prior to initiating the litigation, the Respondent discussed this matter with Phil Foard, a litigator in his office. The Respondent believed that seeking punitive damages would get the other party to negotiate this matter.

30. Respondent never discussed mediation with the Barnharts as an alternative to a resolution of his dispute.

31. Having received no response from Dunenfeld or Martin, Respondent filed a complaint against Moyer (and Remax), Martin (and Gold Key), and Dunenfeld in the Circuit Court for Frederick County on or about August 15, 2002. He sought a return of the $5,000 deposit and punitive damages from all parties.

32. The complaint alleged no facts which could possibly have represented a cause of action against Moyer/Remax. The complaint failed to state any facts suggesting malice, bad faith, evil motive, intent to injure, ill will, or fraud on the part of Martin, Gold Key, or Dunenfeld. No deliberate wrongdoing was alleged. The Respondent simply represented certain facts in a declaratory way and demanded punitive damages.

33. The Respondent brought the action not because he actually believed that punitive damages would lie but to get the attention of the parties. This he admitted to the court.

34. The Respondent re-sent the July 9, 2002 letter to Martin on September 16, 2008.

35. Respondent again received no response from Martin or Dunenfeld.

36. The litigation was initiated two and a half to three months after the house had been sold to a third party and six months after the Barnharts had signed the contract.

37. The Respondent did not serve the suit upon the Defendants until late October 2002 in the hope and anticipation that he would receive a response from Martin or Dunenfeld. None was forthcoming.

38. Sometime after the litigation was instituted, the Respondent discussed the status of fees with the Barnharts and requested additional monies to continue to represent them.

39. In early February, 2003 the Respondent sent the Barnharts a bill for $1,350 for services already rendered.

40. K. Barnhart understood that, as the matter escalated, there would be more fees involved.

41. Sometime in early February, 2003, K. Barnhart indicated to the Respondent that he could not or would not pay additional fees. He wanted to put a stop to the Respondent's representation.

42. Prior to any court appearance, the Barnharts decided to take over their own case and advised the Respondent that he was out, i.e. no longer representing them.

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