Attorney Grievance Comm'n of Md. v. Conwell

• Decision Date: 23 January 2019
• Docket Number: Misc. Docket AG No. 22, Sept. Term, 2017
• Citation: 200 A.3d 820,462 Md. 437
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Scott A. CONWELL
• Court: Court of Special Appeals of Maryland

462 Md. 437

200 A.3d 820

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Scott A. CONWELL

Misc. Docket AG No. 22, Sept. Term, 2017

Court of Appeals of Maryland.

January 23, 2019

Argued by Raymond A. Hein, Deputy Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Booth Marcus Ripke, Nathans & Biddle, LLP (Baltimore, MD), for Respondent.

Argued Before Barbera, C.J., Greene,^* Adkins, McDonald, Watts, Hotten, Lynne A. Battaglia (Senior Judge, Specially Assigned), JJ.

Battaglia, J.Scott A. Conwell ("Conwell"), Respondent, was admitted to the Bar of this Court on December 14, 1999. On July 24, 2017, the Attorney Grievance Commission ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 19-721,¹ filed a Petition for Disciplinary or Remedial Action against Conwell related to his representation of Julie D. Brewington, Gino A. DeSerio, and Dennis Olsen. The Petition alleged that Conwell violated the following Maryland Rules of Professional Conduct ("Rule"): 1.1 (Competence),² 1.2 (Scope of Representation and Allocation of Authority between Client and Lawyer),³ 1.3 (Diligence),⁴ 1.4 (Communication),⁵ 1.5 (Fees),⁶ 1.16 (Declining or Terminating Representation),⁷ 3.1 (Meritorious Claims and Contentions),⁸ 3.3 (Candor toward Tribunal),⁹ 3.4 (Fairness to Opposing Party and Counsel),¹⁰ 8.1 (Bar Admission and Disciplinary Matters),¹¹ and 8.4 (Misconduct).¹²

In an Order dated July 25, 2017, we referred the matter to Judge Donna M. Schaeffer of the Circuit Court for Anne Arundel County for a hearing, pursuant to Maryland Rule 19-727.¹³ Respondent was served with the Petition for Disciplinary or Remedial Action, our Order, and the Writ of Summons on August 28, 2017, and he filed a timely response.

Judge Schaeffer held hearings on the matter on March 5 and 6, 2018. During the hearings, Bar Counsel amended the Petition and withdrew her allegations of violations of Rules 3.3 and 8.1 with regard to Conwell's representation of Scott Olsen.

Upon consideration of the Petition, Respondent's Answer, exhibits, witness testimony and arguments of counsel, Judge Schaeffer issued Findings of Fact and Conclusions of Law. With respect to his representation of Julie Brewington, Judge Schaeffer concluded that Conwell violated Rules 1.3, 1.4, and 8.4(a) and (d), but not Rules 1.1, 1.2, 1.5, and 1.16. With respect to his representation of Gino DeSerio, Judge Schaeffer concluded that Conwell violated Rules 1.1, 1.5, 3.3(a)(1), (a)(2), and (a)(4), and 8.4(a) and (d), but not Rule 1.4. With respect to his representation of Dennis Olsen, Judge Schaeffer concluded that Conwell violated Rules 3.1, 3.4(c), and 8.4(a), (c), and (d).

This Court "has original and complete jurisdiction over attorney discipline proceedings in Maryland." Attorney Grievance Comm'n v. Mixter , 441 Md. 416, 477, 109 A.3d 1, 38 (2015) (quoting Attorney Grievance Comm'n v. O'Leary , 433 Md. 2, 28, 69 A.3d 1121, 1136 (2013) ). Upon review, we "accept the hearing judge's findings of fact as prima facie correct unless shown to be clearly erroneous." Id. (quoting Attorney Grievance Comm'n v. Fader , 431 Md. 395, 426, 66 A.3d 18, 36 (2013) (additional citation omitted) ). This level of deference is warranted because the hearing judge is better positioned than us "to assess the demeanor-based credibility of the witnesses." Attorney Grievance Comm'n v. Framm , 449 Md. 620, 643, 144 A.3d 827, 841 (2016) (quoting Attorney Grievance Comm'n v. Tanko , 427 Md. 15, 27, 45 A.3d 281, 288 (2012) ). The hearing judge, therefore, "is permitted to ‘pick and choose which evidence to rely upon’ from a conflicting array when determining findings of fact." Id. (alteration omitted) (quoting Attorney Grievance Comm'n v. Guida , 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006) ).

Neither party has filed exceptions to the hearing judge's factual findings; thus, we deem those factual findings established by clear and convincing evidence. Attorney Grievance Comm'n v. Jacobs , 459 Md. 291, 309, 185 A.3d 132, 143 (2018) (citation omitted). As to the hearing judge's conclusions of law, when violations have been sustained and exceptions have been filed, our consideration is de novo . Maryland Rule 19-741(b)(1).¹⁴

FACTUAL BACKGROUND

Neither Bar Counsel nor Conwell filed exceptions to the hearing judge's factual findings. Accordingly, we treat those findings as established, Maryland Rule 19-741(b)(2)(A),¹⁵ and paraphrase them for brevity.

Representation of Julie Brewington

Sometime in the spring of 2013, Julie Brewington filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC") against her former employer. In the summer of 2014, Ms. Brewington retained Conwell to represent her in the EEOC matter, because he represented that he practiced employment law. Around August 7, 2014, Ms. Brewington signed a retainer agreement with Conwell and gave him a check for $2,500.00. The retainer agreement provided that Conwell would file a complaint with the Maryland Commission on Civil Rights ("Maryland Commission") and represent her before that agency, in addition to the EEOC.

The scope of Conwell's employment, as set forth in the findings of fact, derived from the retainer agreement and described by Ms. Brewington at the hearing was that, Conwell

"[would] provide legal advice and representation" in relation to Ms. Brewington's employment dispute and rights with [employer]. Respondent's retainer agreement with Ms. Brewington provided for representation in relation to an anticipated Maryland Commission on Civil Rights [ ] action he proposed filing because, as Respondent testified, "I would not want to rely on a client's pro se filing ... I would come in and ordinarily file a new complaint. I normally file that with the [Maryland Commission]." The retainer agreement ... indicated "[t]his is a first stage fixed fee representation agreement."

At the time Conwell was retained, Ms. Brewington did not know the status of her prior pro se filing with the EEOC. Describing the EEOC as a "black hole," Ms. Brewington communicated to Conwell that "a year and a half" had elapsed since her filing and that she was concerned that she may have missed certain deadlines. In response, Conwell informed Ms. Brewington that, "[i]f you filed with the EEOC, you should just wait. They are a slow government organization."

Upon further investigation, Conwell learned that, "due to the passage of time before he had been hired," he would not be able to "file anything on new allegations with" the Maryland Commission or EEOC. He communicated to Ms. Brewington that they would need to rely on what she had filed, and based on his "knowledge of employment law," concluded that the statute of limitations had expired with regard to filing with the Maryland Commission.

Judge Schaeffer also found, in part, that,

Respondent exchanged emails with Ms. Brewington during the representation in which he provided her legal advice about the significance of the [statutory filing deadlines] and provided her with legal advice explaining that because this time period had passed they needed to rely upon what she had previously filed. In sum, during the course of representing Ms. Brewington, Respondent and Ms. Brewington exchanged emails in which Respondent sought information from Ms. Brewington and provided her with legal advice. According to Ms. Brewington, "there were hundreds of emails" between her and the Respondent.

While Bar Counsel contended that Conwell failed to enter his appearance on behalf of Ms. Brewington with the EEOC, Judge Schaeffer was unable to find that "to be the case by clear and convincing evidence." In so finding, Judge Schaeffer relied on an email correspondence between Conwell and Ms. Brewington in which he sent the entry of appearance to her for signature and email correspondence between Conwell and the EEOC, in which the EEOC referred to Ms. Brewington as Conwell's "client."

Judge Schaeffer further found that Conwell "advanced" Ms. Brewington's "causes and claims in some respects." For example, Judge Schaeffer found that he "analyzed the facts and reached a legal conclusion" regarding whether Ms. Brewington could file new, or amend previous, complaints with either the EEOC or Maryland Commission. She further found that Conwell informed Ms. Brewington of her legal rights and "advised her that her EEOC claim was still viable, that it had not been dismissed and that there was no deadline preventing that claim from proceeding." Judge Schaeffer also detailed other steps Conwell took in the early period of his representation of Ms. Brewington, such as exchanging emails with individuals from the EEOC, communicating with the EEOC supervisor, and questioning Ms. Brewington's former employer.

Judge Schaeffer also found, however, "that after the initial few months of representing Ms. Brewington, [Conwell's] work on the case became sporadic and his communications with his client erratic." Ms. Brewington testified that she began to feel neglected in her representation due to Conwell's inconsistent replies to her emails and lack of certainty when asked on the phone about the status of her case. Further, on May 31, 2015, June 3, 2015, and August 10, 2015, Ms. Brewington requested that Conwell send her a copy of the letter he purportedly drafted to send to opposing counsel, but she never received a copy of it; Judge Schaeffer, in fact, found there was "no evidence that the Respondent ever drafted such a letter." Judge Schaeffer also found that Conwell had not communicated with opposing counsel until a year into his representation of Ms. Brewington. While there may have been lapses in communication, Judge Schaeffer, nevertheless, ultimately concluded that it was not proven that these lapses caused Ms. Brewington to "miss any deadlines or lose any legal rights."

Ms. Brewington ultimately terminated the representation. She sent Conwell a certified letter, dated August 10, 2015, informing him, but the...