Attorney Grievance Comm'n of Md. v. Fader

• Decision Date: 06 May 2013
• Docket Number: Sept. Term, 2012.,Misc. Docket AG No. 12
• Citation: 431 Md. 395,66 A.3d 18
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Joel Jay FADER.
• Court: Maryland Court of Appeals

431 Md. 395

66 A.3d 18

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Joel Jay FADER.

Misc. Docket AG No. 12, Sept. Term, 2012.

Court of Appeals of Maryland.

May 6, 2013.

James N. Gaither, Assistant Bar Counsel, (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission, Maryland), for Petitioner.

Joseph Murtha, Esq., Lutherville, MD, for Respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA, and McDONALD, JJ.

BATTAGLIA, J.

Joel Jay Fader, Respondent, was admitted to the Bar of this Court on June 1, 1989. On April 3, 2012, the Attorney Grievance Commission, acting through Bar Counsel (“Bar Counsel”), pursuant to Maryland Rule 16–751(a), ¹ filed a “Petition for Disciplinary or Remedial Action” against Fader. The principal complaint, out of two in Bar Counsel's petition, arose from an administrative case between one of Fader's clients and the Maryland Department of Health and Mental Hygiene (“DHMH”), and was filed by an employee of DHMH, Lauren Jones. The complaint alleged that a request Fader had filed with the Office of Administrative Hearings (“OAH”) for a postponement of a hearing contained misrepresentations about his health and that a forged letter ostensibly from Fader's treating physician was submitted in support. The complaint also alleged that when challenged about the truthfulness of the representations in the postponement request during the subsequent hearing at OAH, Fader “did not inform [the administrative law judge] that the doctor's note was forged.”

The second complaint involved the revocation of a conditional diversion agreement and the resurrection of the charges against Fader, including his inadequate maintenance of two attorney trust accounts, (“ATA 1”) and (“ATA 2”),² at Wachovia Bank. Bar Counsel alleged that Fader “improperly deposited and maintained earned fees and personal funds” in ATA 1, after having transferred all client funds to ATA 2. Further, Bar Counsel claimed that Fader “failed to maintain his attorney trust account in compliance with Maryland Rules, Title 16, Chapter 600.” In the conditional diversion agreement, Fader had admitted engaging in professional misconduct in violation of Rule 1.15(a) and Maryland Rules 16–606.1, 16–607, and 16–609(b); after the Jones complaint was filed, the Attorney Grievance Commission revoked the agreement.

Bar Counsel charged Fader with violations of the Maryland Lawyers' Rules of Professional Conduct 1.1 (Competence),³ 1.3 (Diligence), ⁴ 1.15(A) and (b) (safekeeping property),⁵ 3.2 (Expediting Litigation), ⁶ 3.3(a)(1) and (4) (Candor Toward the Tribunal),⁷ 3.4(C) (Fairness to opposing party and counsel),⁸[431 Md. 400]5.3(b) and (c) (Responsibility Regarding Nonlawyer Assistants),⁹ and 8.4(A)-(d) (misconduct),¹⁰ and Maryland Rules 16–606 (Name and designation of account),¹¹ 16–606.1 (Attorney trust account record-keeping),¹² 16–607 (Commingling of funds), ¹³ and 16–609(a) (Prohibited transactions).¹⁴

Pursuant to Rule 16–757,¹⁵ in an order dated April 5, 2012, we referred the petitionto Judge Martin P. Welch of the Circuit Court for Baltimore City for a hearing.

At the hearing, Bar Counsel presented testimony from Linda Bailey, who was a docket clerk at OAH at the time the postponement request was faxed; Ms. Jones; Fader; and Fader's fiancée, Elizabeth Collier, who also testified for Fader. Fader also called Dr. Perry Foreman and a variety of character witnesses, in addition to testifying on his own behalf. Various documents were introduced and admitted into evidence, including the transcript of a hearing at OAH that occurred on December 15, 2010; the transcript of Fader's deposition taken by Bar Counsel on June 14, 2011; a redacted copy of Jones's original complaint; and a copy of the handwritten cover letter submitted with a fabricated letter containing the signature of Dr. Foreman, one of Fader's treating physicians.

After the hearing, Judge Welch issued written Findings of Fact and Conclusions of Law, in which he determined, with respect to Ms. Jones's complaint, that Fader violated Maryland Lawyers' Rules of Professional Conduct 3.3(a)(1) and (4), 5.3(b), and 8.4(a) and (c), but did not violate Rules 1.1, 1.3, 3.2, 3.4(c), 5.3(c), and 8.4(b) and (d). With respect to Bar Counsel's complaint regarding the lawyer trust accounts, Judge Welch concluded that Fader violated Maryland Lawyers' Rules of Professional Conduct 1.15(a) and (b), and 8.4(a) and (d), and Maryland Rules 16–606.1, 16–607, and 16–609(b).¹⁶

Judge Welch's Findings of Facts and Conclusions of Law state:

FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. INTRODUCTION

Pursuant to an order of the Court of Appeals dated April 5, 2012, this matter was assigned and transmitted to the Circuit Court for Baltimore City to be heard and determined by the undersigned judge of the Eighth Judicial Circuit in accordance with Rule 16–757.

The Petition, as set forth by the Attorney Grievance Commission (hereinafter “Petitioner”), alleges two distinct instances of misconduct by Respondent, Joel Jay Fader, Esquire (hereinafter “Respondent”). The first alleged incident of misconduct (BC Docket No. 2010–253–04–17) stems from the mismanagement of an attorney trust account, which had resulted in a Conditional Diversion Agreement (hereinafter “CDA”). Relating to this incident, the Petition specifically alleges violations of Maryland Lawyers' Rules of Professional Conduct (hereinafter “MRPC”) 1.15(a), 1.15(b), 8.4(a), and 8.4(d) as well as Maryland Rules 16–606.1, 16–607, and 16–609(a). Upon the determination by Petitioner that Respondent had engaged in new misconduct due to the second alleged incident of misconduct, Petitioner revoked the CDA.

The second alleged incident of misconduct (BC Docket No. 2011–343–03–17) stems from Respondent's representation of Patricia Liquefatto in a matter before the Office of Administrative Hearings (hereinafter “OAH”). The alleged misconduct specifically relates to the circumstances surrounding a request for a postponement of the matter on October 27, 2010, which sought a postponement of a matter set for a hearing on October 28, 2010, and the subsequent documentation provided in support of that request on November 4, 2010. The Petition alleges that Respondent violated Maryland Lawyers' Rules of Professional Conduct 1.1, 1.3, 3.2, 3.3, 3.4, 5.3, and 8.4 through his behavior relating to this matter.

Pursuant to Rule 16–757(a), an evidentiary hearing for this Attorney Grievance matter was held on August 27, 2012, and August 28, 2012, before this Court. James N. Gaither, Esquire represented the Petitioner, the Attorney Grievance Commission of Maryland, and Joseph Murtha, Esquire, represented Respondent, Joel Jay Fader, Esquire. During the course of the hearing, Linda Bailey, Lauren Jones, Esquire, Respondent, and Elizabeth Collier testified in Petitioner's case in chief. Elizabeth Collier, Perry Foreman, M.D., Ph.D., Dominic Garcia, Esquire, Gregory Jones, Esquire, Michael Eisenstein, Esquire, James Farley, Esquire, Cheryl Chromartie, Esquire, Cynthia Unglesbee, Esquire,and Respondent, testified during Respondent's case in chief.

II. STANDARD OF REVIEW

Maryland Rule 16–757 provides that “[t]he hearing of a disciplinary action is governed by the rules of evidence and procedure applicable to a court trial in a civil action tried in circuit court.” Md. Rule 16–757(a). Further, the Rule provides that “[t]he petitioner has the burden of proving averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence.” Md. Rule 16–757(b). The Court of Appeals has defined clear and convincing evidence, stating:

The requirement of “clear and convincing” or “satisfactory” evidence does not call for “unanswerable” or “conclusive” evidence. The quality of proof, to be clear and convincing, has also been said to be somewhere between the rule in ordinary civil cases and the requirement of criminal procedure—that is, it must be more than a mere preponderance but not beyond a reasonable doubt. It has also been said that the term “clear and convincing” evidence means that the witnessesto a fact must be found to be credible, and that the facts to which they have testified are distinctly remembered and the details thereof narrated exactly and in due order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy, of the truth of the precise facts in issue. Whether evidence is clear and convincing requires weighing, comparing, testing, and judging its worth when considered in connection with all the facts and circumstances in evidence.

Attorney Grievance Comm'n v. Smith, 405 Md. 107, 123–24 (2008) (quoting Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 79 (2000)).

III. FINDINGS OF FACT ¹⁷

Pursuant to Maryland Rule 16–757(b), the Court finds the following facts:

A. General Factual Background

1. Respondent is a fifty-one (51) year old attorney who currently practices law in Baltimore, Maryland.

2. Respondent began his legal career in Florida where he worked as a commercial litigator from 1986 through 1989, and his practice primarily focused on commercial litigation, covenant not-to-compete work and employment contracts.

3. Respondent is still a member of the Florida Bar.

4. Respondent has been admitted to practice law in the State of Maryland since 1989.

5. Upon arriving in Maryland, Respondent initially worked for Howard Cardin, Esquire, and James Gitomer, Esquire. During the approximately two and a half years during which Respondent worked for these attorneys, his practice involved family law, workers' compensation law, personal injury law, criminal law, and some trusts and estates law.

6. Respondent then began working for James Farley, Esquire. While working for Mr. Farley, Respondent's practice involved domestic work, workers' compensation law, personal injury...