Attorney Grievance Comm'n of Md. v. Davy

CourtCourt of Special Appeals of Maryland
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. MICHELLE DAVY
Docket NumberMisc. Docket AG No. 2
Decision Date27 November 2013

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MICHELLE DAVY

Misc. Docket AG No. 2

COURT OF APPEALS OF MARYLAND

September Term, 2011
Filed: November 27, 2013


Attorney Grievance Commission of Maryland v. Michelle Davy, Misc. Docket AG No. 2, September Term, 2011

ATTORNEY DISCIPLINE - SANCTIONS - DISBARMENT - Court of Appeals disbarred lawyer who: attempted to file defective complaint on client's behalf and subsequently deceived client about status of litigation and demanded additional retainer payments; did not tell client that court had rejected complaint for filing; charged fees without performing services to any meaningful degree; failed to establish an understanding as to fees; failed to deposit payments into client trust account or obtain clients' informed consent not to do so; took several months to notify court that lawyer no longer represented client; acted on client's behalf after client ended representation; took four months to file for bankruptcy on client's behalf; made multiple errors in filing for bankruptcy on client's behalf; and generally failed to adequately represent clients. Such conduct violated Maryland Lawyers' Rules of Professional Conduct 1.1 (Competence), 1.2(a) (Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication Generally), 1.5(a) (Reasonable Fees), 1.5(b) (Communication of Fees), 1.15(c) (Client Trust Accounts), 1.16(d) (Termination of Representation), 8.4(c) (Dishonesty, Fraud, Deceit or Misrepresentation), and 8.4(d) (Conduct Prejudicial to the Administration of Justice).

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Circuit Court for Prince George's County
Case No.
CAE 11-05720

Barbera, C.J.,
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,

JJ.

Opinion by Watts, J.

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Foremost among matters, this case concerns a Maryland lawyer who promised to file a complaint on a client's behalf, learned that the court had rejected the complaint for filing, and then repeatedly deceived her client as to the status of the litigation while demanding additional retainer payments.

Michelle Hamilton Davy ("Davy"), Respondent, a member of the Bar of Maryland, represented three clients in two unrelated matters. Linda Smalls ("Smalls") retained Davy to institute an employment discrimination action against her former employer. Bobby McAdams ("McAdams"), a jeweler doing business as "Watch Tune Up, Inc." ("Watch Tune Up"), retained Davy to represent him and his business as both filed for bankruptcy. Both Smalls and McAdams filed complaints against Davy with the Attorney Grievance Commission of Maryland ("the Commission"), Petitioner.

On February 22, 2011, in this Court, the Commission filed a "Petition for Disciplinary or Remedial Action" against Davy, charging her with violating the following Maryland Lawyers' Rules of Professional Conduct ("MLRPC"): 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), and 8.4 (Misconduct). On February 28, 2011, this Court referred the case to the Honorable Beverly J. Woodard ("the hearing judge") of the Circuit Court for Prince George's County ("the circuit court"). On May 8 and 9, 2012, the hearing judge conducted a hearing. On December 21, 2012, the hearing judge filed, in this Court, an opinion including findings of fact and concluding that, in her

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representation of Smalls, McAdams, and Watch Tune Up, Davy had violated MLRPC 1.1, 1.2(a), 1.3, 1.4, 1.5(a), 1.5 (b), 1.15(c), 1.16(d), 8.4(c), and 8.4(d).

On September 4, 2013, we heard oral argument. On September 5, 2013, in a per curiam order, we disbarred Davy. See Attorney Grievance Comm'n v. Davy, ___ Md. ___, ___ A.3d ___, Misc. Docket AG No. 2, Sept. Term, 2011, 2013 WL 4764081, at *1 (Md. Sept. 5, 2013). We now explain the reasons for Davy's disbarment.1

I. Hearing Judge's Findings of Fact

In a comprehensive forty-five page opinion, the hearing judge found the following facts, which we summarize.

On June 5, 1996, this Court admitted Davy to the Bar of Maryland. On September 8, 2003, with her consent, this Court indefinitely suspended Davy from the Bar of Maryland. See Attorney Grievance Comm'n v. Hamilton, 377 Md. 54, 832 A.2d 170 (2003). In Hamilton, id., 832 A.2d 170, this Court permitted Davy to apply for

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reinstatement after one year, and ordered that, before applying for reinstatement, Davy both "refund all fees paid to her by [seven] individuals" and "obtain a physical/psychological evaluation demonstrating her fitness to practice law[.]" On December 7, 2004, this Court reinstated Davy to the Bar of Maryland. See In re Petition for Reinstatement of Hamilton, 384 Md. 156, 862 A.2d 992 (2004).

In May 2008, Davy became a solo practitioner. At the time of her alleged misconduct, Davy's office was in Prince George's County, Maryland.

A. Davy's Representation of Smalls

From 2002 through 2007, Smalls worked as a civil servant in the Office of the Administration of the Executive Office of the President. In 2007, Smalls's employment with the office ended. As a result, Smalls filed multiple complaints with the Equal Employment Opportunity Commission, which issued Smalls a "right to sue" letter that imposed a deadline of November 6, 2009, for the lawsuit.

On or about October 20, 2009, Smalls contacted Davy through Davy's website. On or about October 23, 2009, Davy telephoned and spoke with Smalls, who sought legal advice about the termination of her employment. Smalls told Davy that a lawsuit would need to be filed no later than November 6, 2009. Davy told Smalls that she would represent her for a charge of $200 per hour, and that she would need a retainer of between $2,500 and $3,000.

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On October 26, 2009, Smalls brought a check in the amount of $3,000 to Davy's office. At that time, Davy told Smalls that she wanted an additional $2,000. Smalls gave Davy the check for $3,000 and agreed to allow $2,000 to be charged to her credit card. Although Davy knew that she had not yet earned $5,000, she never deposited any of Smalls's payments into a client trust account. Before the hearing judge, Davy stated that she did not deposit Smalls's payments into a client trust account because, at the time that she began representing Smalls, she had been corresponding with the Commission, pursuant to a conditional diversion agreement, about a prior complaint concerning the written retainer agreement format that she had been using.3

After receiving Smalls's check and credit card information, Davy told Smalls that she wanted a $20,000 retainer. Smalls requested a payment plan. Davy agreed to let Smalls use a payment plan, but did not tell Smalls when she would have to make payments. Davy did not tell Smalls: (1) how she would use the $5,000 in payments; (2) how much she would charge in total for the representation; or (3) anything about a client trust account. Davy and Smalls agreed to meet again on November 4, 2009, by which date Davy promised to have a complaint ready.

On November 4, 2009, Davy and Smalls met. Davy did not have the complaint or the written retainer agreement. During the meeting, Davy said something to the effect of: "Mamma's got to eat, so you're [] going to have to pay this kind of money." Smalls

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became emotional and started to leave the room, but Davy stopped her and promised that the complaint would be ready within a couple of hours.

Two days later, on November 6, 2009, at 2:53 a.m., Davy e-mailed Smalls a copy of the complaint. At 9:25 a.m., Smalls e-mailed Davy, stating that the complaint was acceptable. At 9:11 p.m., Davy left the complaint in the box for after-hours filings at the United States District Court for the District of Columbia ("the federal court").

On November 9, 2009, Davy met with Smalls and gave her a written retainer agreement, under which Davy was entitled to a $5,000 retainer, a $250 "nonrefundable consultation fee," and a $500 "nonrefundable engagement fee." Before then, Davy had not told Smalls about either of the nonrefundable fees. The written retainer agreement did not: (1) state that its terms were retroactive; (2) refer to the $5,000 that Smalls had already paid; (3) include details of a payment plan; or (4) state that the retainer would be $20,000. The hearing judge found that, in the written retainer agreement with Smalls, Davy intentionally failed to state that the retainer would be $20,000 because the $20,000 retainer might have discouraged Smalls from hiring Davy. Although the written retainer agreement stated that the retainer would not be deposited into a client trust account, Davy never pointed out the provision or orally informed Smalls about client trust accounts.

On November 9, 2009, Smalls paid Davy another $5,000. Davy gave Smalls a receipt that reflected a $350 filing fee. Smalls asked Davy for the case number, which Davy promised to provide; Davy, however, made no effort to learn the case number.

On November 13, 2009, the federal court mailed Davy the check for the $350 filing fee, along with an explanation that the federal court had rejected the complaint for

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filing, as Davy had failed to renew her...

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