Attorney Grievance Comm'n of Md. v. Gray

• Decision Date: 15 August 2013
• Docket Number: Misc. Docket AG No. 22,Sept. Term, 2012.
• Citation: 72 A.3d 174,433 Md. 516
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Melissa D. GRAY.
• Court: Maryland Court of Appeals

433 Md. 516

72 A.3d 174

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Melissa D. GRAY.

Misc. Docket AG No. 22, Sept. Term, 2012.

Court of Appeals of Maryland.

Aug. 15, 2013.

James P. Botluk, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Melissa Donnelle Gray, Towson, MD, for Respondent.

Argued before BARBERA, C.J., HARRELL, GREENE, ADKINS, McDONALD, BELL ^* and DALE R. CATHELL (Retired, specially assigned), JJ.

CATHELL, J.

The Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action in which it asserted that Melissa D. Gray, Respondent, violated certain of the Maryland Lawyers' Rules of Professional Conduct ¹ in respect to two client matters and in respect to the failure to cooperate with Bar Counsel.

It was alleged that Respondent violated the provisions of Rule 1.3. ² Diligence; Rule 1.4.³ Communication; and Rule [433 Md. 518]8.1(b),⁴ (failure to cooperate with Bar Counsel) in respect to Client Magdalene Foard. It was also alleged in the Petition that Respondent violated the provisions of Rule 1.1.⁵ Competence; Rule 1.3. Diligence; Rule 1.4 Communication; Rule 1.15.⁶ Safekeeping Property; 1.16.⁷ Declining or Terminating Representation in respect to Client Hillary Figinski.⁸ Additionally,in the Figinski matter, Bar Counsel again alleged that Respondent violated the provisions of Rule 8.1(b) Bar Admission and Disciplinary Matters in that it was alleged that the Respondent failed to cooperate with Bar Counsel. Finally, in the Figinski, matter Bar Counsel also alleged that Respondent violated the provisions of Rule 8.4.(c) Misconduct, i.e. that Respondent engaged “in conduct involving dishonesty, fraud, deceit or misrepresentation.”

Pursuant to Rule 16–757,⁹ this Court ordered that an evidentiary hearing on the matters be heard before Judge Susan Souder of the Circuit Court For Baltimore County. Judge Souder rendered her findings of fact and conclusions of law on the 7th of November 2012, and the record was then transmitted to this Court. Bar Counsel then filed “PETITIONER'S EXCEPTIONS AND RECOMMENDATION FOR SANCTION.” Respondent took no exceptions. Oral argument was held on June 6, 2013. Both at the hearing level and before this Court, Respondent represented herself.

Judge Souder made certain findings of fact and conclusions as to the Foard matter, including in relevant part the following:

“In 2008, Magdalene Foard (‘Client’) retained Respondent to represent her in a divorce case against David Foard. A Judgment of Absolute Divorce was entered on July 27, 2009, with the Court retaining jurisdiction for the purposes of establishing a Qualified Domestic Relations Order (‘QDRO’). The QDRO would make Client the alternate payee of David Foard's retirement benefits and transfer to Client one-half of those benefits.

Respondent sent a letter on August 13, 2009, to David Foard's attorney, William Evans, stating that Respondent was preparing a QDRO. Six weeks later Respondent received a letter from Evans, urging her to finish the QDRO. On January 23, 2010, Client sent a letter to Respondent, asking when the QDRO was going into effect; Client also was concerned that she had not returned Client's telephone calls for two months. On July 19, 2010, Respondent sent a letter to David Foard, directing him to forward his pension payments to Client's new address and indicating that the QDRO was not yet in effect. A month later, Evans sent Respondent a letter that the QDRO still was not resolved.

Client testified that she had talked to Respondent's secretaries 20 times during this period but talked with Respondent only once. Respondent told her the QDRO was on a judge's desk, waiting to be signed. Respondent testified she had prepared the QDRO and sent it to David Foard, but it came back from the Chambers judge twice, unsigned....

In December 2011, Respondent went on several week's medical leave but had her office follow up on the status of the QDRO. Respondent stated that Judge Norman signed the QDRO on January 5, 2012. Respondent testified that she forwarded the QDRO to the Plan Administrator of David Foard's retirement benefits on January 13, 2012.

FOARD V. FOARD: CONCLUSIONS OF LAW

The Court does not find there is clear and convincing evidence that Respondent was not diligent in her representation of Client. There was no evidence as to when the QDRO was submitted to the Court by Respondent. The evidence presented by Bar Counsel was vague as to how long the prepared QDRO was sitting on a judge's desk, waiting to be signed The Court also does not find clear and convincing evidence that Respondent failed to communicate with Client. Respondent informed Client the QDRO was in a judge's hands. Rule 1.4 does not require repeating the same information each time a client inquires about a matter.

By her own admission, however, Respondent did not respond to repeated letters from Bar Counsel about the Foard Case. There is, therefore, clear and convincing evidence that Respondent violated Rule 8.1(b).”

Neither party took any exceptions to the judge's findings and conclusions in respect to the Foard matter.

In the Figinski matter, the hearing judge, as relevant here, made the following findings and conclusions of law:

“In 2002, Hillary Figinski (‘Client’) retained Respondent in Corso v. Figinski, a case that resulted in distribution of money from the sale of a home owned by the parties. Proceeds from the sale were placed in [an] escrow account in Bay National Bank. Respondent and Corso' attorney, Bradford Carney, each was an escrow agent/trustee of the account. [footnote omitted] Client's share was $6,729.78 plus interest, pursuant to a Court Order of January 9, 2004. The final paragraph of the Order reads as follows:

ORDERED that Bay National Bank upon presentation of a True Test Copy of this Order shall immediately release the parties' funds as delineated hereinabove without further action on the part of Bradford G.Y. Carney, Esquire or Melissa D. Gray, Esquire. [footnote omitted]

From January 2004 through March 2008, Carney sent repeated letters first questioning and later warning Respondent that Client's money was still in the escrow account.... Respondent informed Client by letter on February 3, 2004 that Respondent filed a notice of appeal on her behalf and asked for money to pay for a transcript. Client testified that she never saw the February 3, 2004 letter; Respondent never ordered a transcript. Respondent presented no evidence she followed up with Client once the Court of Special Appeals dismissed the appeal later that month....

.... In April 2008, after Carney threatened to report Respondent to Bar Counsel, Respondent closed the escrow account and had Bay Bank draw a check for $7,113.10, payable to Client. Respondent testified that Carney's April 2008 letter was the first time she became aware that Client had not received her money.

On January 18, 2011, Carney wrote to Respondent that Client had never cashed or deposited the 2008 check. As a result, he informed Respondent the money would escheat to the State of Maryland. A week later, Carney sent a second letter on the same topic informing Respondent he would report her to Bar Counsel if the matter was not addressed.¹⁰ Respondent did nothing in response.

In October 2011, Bay Bank FSB, the successor to Bay National Bank, sent Final Notice that it would close the account on January 9, 2012, with the money to escheat to the State. Carney sent Respondent this Notice on December 15, 2011, while Respondent was on medical leave. Respondent went to the bank on January 9, 2012, her first day back from medical leave, and obtained another check for $7,113.10, payable to Client. She testified she mailed it to Client. On February 23, 2012, Client sent Respondent a letter stating she was ‘taken aback’ that Respondent never told Client she had been entitled to money for eight years and asking, ‘Where is this money?” ¹¹

CORSO V. FIGINSKI: CONCLUSIONS OF LAW

...

“The Court finds by clear and convincing evidence that Respondent was not diligent in her representation of Client from the time of the January 9, 2004 Order through the Client's February 23, 2012 letter. Neither did ... [Respondent] adhere to Rule 1.4 during this period.... Characterizing a client as ‘low maintenance’ does not give an attorney license to ignore that client.

The Court does not find clear and convincing evidence that Respondent violated Rule 1.1 on competence ....[footnote omitted]

The Court does not find clear and convincing evidence that Respondent violated Rule 1.15 by not promptly distributing property about which there was no dispute. First, the cases cited under Rule 1.15 concern trust funds or escrow funds set up withing an attorney's practice; it is unclear that a fund set up by opposing attorneys solely for receiving money in a single case falls under the Rule. Second, the January 9, 2004 Court Order states that upon presentation of a True Test Copy of the Order, Bay National Bank was to immediately release the parties' funds without further action on the part of the attorneys. Corso's money was withdrawn, so a True Test Copy must have been presented, thereby freeing both parties' money.... [footnotes omitted]

This Court does not find clear and convincing evidence that Respondent violated Rule 1.16. No evidence was presented about Respondent terminating, or even attempting to terminate, her relationship with Client.

The Court also does not find clear and convincing evidence that Respondent violated Rule 8.4....

As in the Foard case, however, Respondent, by her own admission, did not respond to repeated letters from Bar Counsel. There is, therefore, clear and convincing evidence that Respondent violated Rule 8.1(b).”

Most recently in Attorney Grievance Commission of Maryland v. Chapman, 430 Md. 238, 273, 60 A.3d 25, 46 (2013), quoting from several cases, we s...