Attorney Grievance Comm'n of Md. v. McCarthy

• Decision Date: 27 May 2021
• Docket Number: Misc. Docket AG No. 72, Sept. Term, 2019
• Citation: 251 A.3d 1059,473 Md. 462
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Thomas MCCARTHY, Jr.
• Court: Court of Special Appeals of Maryland

473 Md. 462

251 A.3d 1059

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Thomas MCCARTHY, Jr.

Misc. Docket AG No. 72, Sept. Term, 2019

Court of Appeals of Maryland.

May 27, 2021

Argued by Michael W. Blow, Senior Asst. Bar Counsel, (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Thomas McCarthy, Jr., Annapolis, MD, for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, and Biran, JJ.

Watts, J.

This attorney discipline proceeding involves an attorney who, among other instances of misconduct, failed to file an opening brief, an appendix, or a motion to extend time on behalf of a company in an appeal, resulting in the appeal being dismissed, and made a knowing and intentional misrepresentation to the owner of the company that he was working to have the appeal reinstated.

Thomas McCarthy, Jr., Respondent, a member of the Bar of Maryland, was retained by Jonathan B. Radding to represent his company, View Point Medical Systems, LLC ("View Point"), which was the appellant in an appeal before the United States Court of Appeals for the Fourth Circuit. The underlying case began as a breach of contract action in the Circuit Court for Baltimore City in which View Point was the plaintiff and the defendant in the lawsuit had the case removed to the United States District Court for the District of Maryland. On appeal, McCarthy failed to file an opening brief, an appendix, or a motion to extend time on View Point's behalf, resulting in dismissal of the appeal. McCarthy knowingly and intentionally misrepresented to Radding that he was working on reinstating the appeal and briefing schedule. In actuality, McCarthy never drafted or filed a motion to reinstate the appeal or took any other steps to protect View Point's claim. Radding caused a complaint against McCarthy to be filed with Bar Counsel.¹ Bar Counsel made numerous requests for information and documentation, to which McCarthy knowingly and intentionally failed to provide timely and complete responses.

On February 24, 2020, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" charging McCarthy with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") and Maryland Attorneys' Rules of Professional Conduct ("MARPC")² 1.3 (Diligence), 1.4(a)(1) (Informing Client Regarding Informed Consent), 1.4(a)(2) (Keeping Client Reasonably Informed), 1.4(a)(4) (Consulting with Client About Limitation on Attorney's Conduct), 1.4(b) (Explaining Matter to Client), 1.16(a)(1) (Terminating Representation), 5.5(a) (Unauthorized Practice of Law), 5.5(b)(2) (Misrepresenting that Attorney is Admitted), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MLRPC or MARPC). On March 4, 2019, this Court designated the Honorable Glenn L. Klavans ("the hearing judge") of the Circuit Court for Anne Arundel County to hear the attorney discipline proceeding.

On August 7, 2020, in this disciplinary proceeding, Bar Counsel filed a Notice of Service of Discovery Material, stating that, on August 1, 2020, through a process server, Bar Counsel had served on McCarthy interrogatories, a request for production of documents, and a request for admission of facts and genuineness of documents. Under the Maryland Rules, responses to the discovery requests were due on August 31, 2020, thirty days after the service of the discovery requests.³ In the request for admissions, Bar Counsel asked McCarthy to admit the genuineness of twenty-eight attached exhibits⁴ and to admit the following facts:

1. You were admitted to the Bar of the State of Maryland on June 14, 1989.

2. At all times relevant herein, you maintained an office for the practice of law in Anne Arundel County, Maryland.

Representation of Jonathan B. Radding and View Point Medical Systems, LLC

3. In January 2014, Jonathan B. Radding suffered a brain injury.

4. Mr. Radding's injury causes him to experience overstimulation of brain function, affects his short-term memory and affects his ability to converse for lengthy periods of time.

5. Beginning in or about 2002, Mr. Radding owned View Point Medical Systems, LLC ("View Point"). View Point was a healthcare technology company.

6. In 2009 View Point began generating sales leads for Athena Health, Inc. ("Athena").

7. On February 25, 2013, View Point filed a lawsuit against Athena in the Circuit Court for Baltimore City alleging breach of contract.

8. On May 2, 2013, Athena removed the matter to the U.S. District Court for the District Court of Maryland.

9. At the time the matter was removed to the U.S. District Court, View Point was represented by Stephen Snyder, Esquire, Julia R. Arfaa, Esquire and Gary A. Wais, Esquire.

10. On December 2, 2014, Mr. Radding retained your brother, Brennan C. McCarthy, Esquire of Brennan McCarthy and Associates to represent View Point.

11. On December 4, 2014, Brennan McCarthy, entered his appearance in the U.S. District Court as successor counsel for View Point.

12. In early January 2015, you began assisting in the representation of View Point and served as the main point of contact for Mr. Radding.

13. On February 18, 2016, Judge J. Frederick Motz granted Athena's Motion for Summary Judgment.

14. On March 1, 2016, Brennan McCarthy terminated his attorney-client relationship with View Point and Mr. Radding.

15. On March 17, 2016, Brennan McCarthy filed a Notice of Appeal to the U.S. Court of Appeals for the Fourth Circuit to protect View Point's interests.

16. On March 18, 2016, the court entered a Briefing Order directing View Point to file its opening brief and appendix by April 27, 2016.

17. On or about February 20, 2016, View Point retained you to represent it in the Fourth Circuit.

18. On April 15, 2016, you entered your appearance and filed the required Disclosure of Corporate Affiliations and Docketing Statement.

19. On May 2, 2016, the court entered an Order extending the briefing schedule and directing View Point to file its opening brief and appendix by June 2, 2016.

20. On June 2, 2016, you emailed counsel for Athena about requesting a mutual 8-day extension to the briefing schedule. You suggested extending View Point's filing deadline to June 9, 2016.

21. Opposing counsel agreed to an extension of the briefing schedule.

22. On June 7, 2016, you again emailed Athena's counsel about extending the briefing schedule and suggested moving View Point's filing deadline to June 13, 2016.

23. On June 8, 2016, with the consent of Athena's counsel, you sent an emailed the Chief Circuit Mediator to request assistance in seeking to modify the briefing schedule. You explained that View Point's brief was due on June 2, 2016, but "that it requires additional time to complete and file its brief" and sought an extension until June 13, 2016.

24. On June 8, 2016, a Rule 45 Notice was sent to you. The Notice stated that the court had not received the required opening brief and appendix, and that the case would be dismissed for failure to prosecute if the brief and a motion to extend the filing time were not filed by June 23, 2016.

25. On June 22, 2016, you and Mr. Radding exchanged the following text messages:

[Mr. Radding]: Whatever is going on in the court of appeals you can update me with two sentences about the whole thing. I would like to know what is going on so could you please give me an update thank you[.]

[You]: Jon for God's sake I am drafting and filing the brief and record extract. I will send you copy's [sic] once filed. There is no further update possible.

26. On June 23, 2016, Mr. Radding texted you: "Tom are we alive because I thought today was the very last day. When you get the strength to type back please get in touch and let me know how it went thank you[.]"

27. On June 24 and 25, 2016, you replied to Mr. Radding with the same message: "Sorry, I can't talk right now."

28. At some time prior to June 24, 2016, you, without Mr. Radding's knowledge, determined that Mr. Radding was not competent to participate in the litigation, and you made the decision to not file the brief. Mr. Radding was scheduled to have surgery around this time, and you believed that following the surgery, Mr. Radding would then be competent to participate in on-going litigation.

29. You failed to file an opening brief or request an extension of time and on June 24, 2016, the Fourth Circuit dismissed the appeal for failure to prosecute pursuant to Local Rule 45.

30. You failed to advise Mr. Radding of the July 24, 2016 order.

31. On July 27, 2016, Mr. Radding sent a text message to you: "Is the case against athenahealth [sic] still in the court of appeals?"

32. On June 28, 2016, you replied to Mr. Radding stating: "Sorry, I can't talk right now."

33. On August 4, 2016, Mr. Radding sent you a series of text messages inquiring about the status of the appeal and the dismissal for failure to file a brief.

34. You replied to Mr. Radding stating: "I can call you in about half hour [sic] – working on reinstating the case and modified briefing schedule[.]"

35. You knowingly and intentionally misrepresented to Mr. Radding that you were "working on reinstating" the appeal.

36. You failed to draft or file any motion to reinstate the appeal or take any steps to protect View Point's claim.

Radding Foreclosure Matter

37. Beginning in March 2015, Mr. Radding's home was the subject of a foreclosure action in the Circuit Court for Anne Arundel County. Mr. Radding retained Dallas Houston, Esquire to represent him in the matter.

38. On June 2, 2015, via email, Mr. Radding authorized Ms. Houston to contact you as his personal attorney with any and all information regarding the foreclosure.

39. You were included on emails between Mr. Radding and Ms. Houston, and on occasion you would communicate directly with Ms.

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