Attorney Grievance Comm'n of Md. v. Mance
| Decision Date | 25 February 2013 |
| Docket Number | Sept. Term, 2012.,Misc. Docket AG No. 27 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Robert Weston MANCE, III. |
| Court | Maryland Court of Appeals |
OPINION TEXT STARTS HERE
Raymond A. Hein, Deputy Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.
Antoini M. Jones, Largo, MD, for respondent.
Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.
In this reciprocal attorney discipline case, the Attorney Grievance Commission of Maryland (“AGC”), through Bar Counsel, asks this Court to suspend indefinitely Robert Weston Mance, III, with the right to apply for reinstatement in Maryland only after he is reinstated to the Bar of the District of Columbia. The District of Columbia Court of Appeals, in a per curiam opinion and order of 26 January 2012 triggering the present proceeding, suspended Mance for six months and conditioned his reinstatement in the District of Columbia (“D.C.”) on: (1) proof of fitness, as determined according to the D.C. Rules; and (2) restitution to his clients or the D.C. client security trust fund. By per curiam order of 3 December 2012, we determined that corresponding discipline in Maryland should be that Mance be suspended indefinitely in Maryland (effective upon the date of our order), with the right to apply for reinstatement no sooner than when he is readmitted unconditionally in the District of Columbia. This opinion explains our reasons for the 3 December 2012 order.
On or about 29 August 2011, the Office of Bar Counsel for the District of Columbia and Mance (who was represented by counsel) executed and filed jointly with the D.C. Court of Appeals's Board on Professional Responsibility a Petition and Affidavit of Negotiated Discipline. The filing embraced four docketed cases brought by D.C. Bar Counsel against Mance. A synopsis of the Petition's representations as to each case is as follows:
Leonard Garrett (Complainant)
Garrett hired Mance in August 2003 to represent him in a governmental employment termination action. Garrett paid Mance $1,500 in cash and an additional $3,000 by cashier's check, for which Mance issued no receipt. There was no written retainer letter or other writing setting out the fee arrangement. When the matter found its way to the D.C. Superior Court, on Garrett's request for judicial scrutiny of his firing, Mance failed ultimately to file a timely brief on Garrett's behalf or to seek an extension of time in which to file. Mance failed also to respond to a subsequent show cause order inquiring why dismissal of the case should not occur for a failure to prosecute. The case was dismissed. Mance took no further action to protect his client's interests, despite having agreed to do so in response to Garrett's request that he do so.
After Garrett filed a complaint against him with D.C. Bar Counsel, Mance and Garrett entered into an agreement on 25 August 2009 wherein Mance agreed to refund $4,500 to Garrett (the full amount of the initial fee paid) and to pay him (within 15 months) an additional $15,000 in settlement of their dispute over Mance's handling of the representation. Prior to Garrett's execution of the agreement, Mance failed to advise Garrett to obtain the advice of independent counsel or to supply sufficient information to enable Garrett to give informed consent to the settlement. Mance, after making two payments totaling $900 in 2009, failed to make further payments on the settlement agreement.
Bar Counsel went forward with its investigation of Garrett's complaint, determining ultimately that Mance's conduct violated the following D.C. Rules of Professional Conduct: 1.1(a) (); 1.1(b) (); 1.3(a) (); 1.5(b) (); and 1.8 (entered into a business transaction with a client that did not come within any exception to the Rule).
Riley retained Mance in March/April 2009 to represent him in an action to recover damages for injuries to his improved real property in D.C. Mance filed suit in the D.C. Superior Court on 4 May 2006. During 2008, Mance failed to respond to a defendant's request for production of documents, despite being ordered to do so by the court and despite the requested documents having been delivered to him by Riley. The defendant moved for sanctions. Mance did not respond. The court granted, as a sanction for Mance's failure to supply discovery, that Riley, at trial, could not testify, present evidence as to damages, or offer any exhibits. Mance did not move to vacate or reconsider the sanction order. An additional defendant moved for summary judgment, which Mance did not oppose. The court granted summary judgment to that defendant, dismissed the claims against the remaining defendants, and vacated the trial date.
Although Mance filed an appeal, he neglected to advise Riley of the potential conflict of interest between Riley's interests and Mance's earlier failure to act on Riley's behalf in the trial court. Mance did not advise Riley to seek the advice of independent counsel.
In his appellate brief, Mance maintained that he did produce the requested documents to the opposing counsel in the trial court, albeit four days after the trial court's deadline. Unfortunately for him, Mance had represented previously, in a copy of a supposed “Emergency Motion to Vacate [The Trial Court's] July 8, 2008 Order [Imposing Sanctions]” (supplied by him to D.C. Bar Counsel during its investigation of Riley's complaint) that the date he produced allegedly the requested documents to opposing counsel was a different day than he claimed in his appellate brief. In any event, Mance never filed the “Emergency Motion” in the trial court, never produced a receipt for the purported document production, never filed a certificate of discovery to like effect in the trial court, and never informed the trial court that he had complied allegedly with its order to make discovery.
The above notwithstanding, the D.C. Court of Appeals vacated the trial court's sanctions order and the grant of summary judgment. The case was remanded otherwise for further fact finding. Compliant with the appellate directive, the trial court vacated its sanctions order.
Bar Counsel determined that Mance's conduct violated the following D.C. Rules of Professional Conduct: 1.1(a); 1.1(b); 1.3(c); and 1.7(b) ().
Between 7 July 2007 and 12 May 2009, Mance represented Randolph in a criminal matter in the D.C. Superior Court. Randolph was convicted. Mance noted an appeal, but new counsel, Craig Moore, Esquire, was appointed thereafter to handle the appeal. Moore wrote twice to Mance asking for a copy of his “case materials” regarding his representation of Randolph in the trial court. Mance did not respond to either request. Moore wrote to the D.C. Bar in October 2009, asking for its help in getting Mance to respond. The Bar turned the matter over to the D.C. Bar Counsel, who wrote to Mance on 4 December 2009 requesting his position why he had not responded to Moore's request, pointing out in the letter Mance's obligation under the D.C. Rules of Professional Conduct to release client files upon termination of representation. Mance failed to respond promptly to Bar Counsel. Consequently, Bar Counsel opened a complaint file on the matter.
Mance responded on 11 February 2010 to Bar Counsel's 4 December 2009 letter. He stated that he would turn over to Randolph his file on Randolph's case; however, he did not attempt to do so until April 2010. When he did, he sent the materials directly to Randolph, who was incarcerated in a federal correctional facility. Because Mance had not made inquiry before mailing the file as to any limitations on Randolph receiving mail where he was incarcerated, the papers were returned to Mance on 7 April 2010 because he had not taken the necessary preliminary steps to send mail to Randolph. Mance filled-out the necessary form required by the institution and finally sent successfully the file to Randolph on 17 May 2010.
D.C. Bar Counsel determined that Mance's conduct violated the following D.C. Rule of Professional Conduct: 1.16(d) ().
This matter came to D.C. Bar Counsel's attention through review of an as-yet unidentified decision of the D.C. Court of Appeals. Characterizing the case only as concerning “conduct similar to that in [the Garrett complaint], that is, failure to represent with skill and care [1.1(b) ] and failure to represent zealously [1.3(a) ],” Bar Counsel reserved “the right to present the facts and circumstances of these unadjudicatedacts of misconduct in connection with any petition for reinstatement.”
In the Petition of Negotiated Discipline, Bar Counsel and Mance agreed that the proper sanction should be a six-month suspension, with a fitness requirement for readmission. Of note as to how this position was reached, the Petition stated:
Bar Counsel and Respondent agree that the sanction to be imposed is a six-month suspension with a fitness requirement. Respondent understands that restitution will be a component of the fitness requirement, as will his voluntarily taking...
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