Attorney Grievance Comm'n of Md. v. Colton-Bell

• Citation: 76 A.3d 1096,434 Md. 553
• Decision Date: 26 September 2013
• Docket Number: Misc. Docket AG No. 33,Sept. Term, 2009.
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Julia COLTON–BELL.
• Court: Court of Appeals of Maryland

434 Md. 553

76 A.3d 1096

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Julia COLTON–BELL.

Misc. Docket AG No. 33, Sept. Term, 2009.

Court of Appeals of Maryland.

Sept. 26, 2013.

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

No argument on behalf of Respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY ^*, ADKINS and BELL ^**, JJ.

BELL, C.J. (Retired).

The petitioner, the Attorney Grievance Commission of Maryland (“AGC”), filed, pursuant to Maryland Rule 16–751, a Petition for Disciplinary or Remedial Action against Julia Colton–Bell, the respondent. Therein, the petitioner alleged that the respondent violated Rules 1.1, ¹ 1.3, ² 1.4,³ 1.5,⁴ 1.15,⁵[434 Md. 558]1.16, ⁶ 5.5,⁷ 8.1,⁸ AND 8.4 ⁹ OF the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”) as adopted by Maryland Rule 16–812; Maryland Rules 16–604¹⁰ and 16–606; ¹¹ and Maryland Code §§ 10–304¹² and 10–306 ¹³ of the Business Occupations and Professions Article (“BP”). We ordered, pursuant to Maryland Rule 16–752(a), that the matter be transmitted “to the Circuit Court for Montgomery County to be heard and determined by Judge Robert A. Greenberg, of the Sixth Judicial Circuit, in accordance with Maryland Rule 16–757.”

The petitioner was unable to serve the respondent with the Petition for Disciplinary Action at any of her listed mailing addresses and, therefore, pursuant to Maryland Rule 16–753, served the Administrator of the Client Protection Fund. The respondent neither filed an answer to the Petition, nor a motion to vacate the consequent Order of Default issued by the Circuit Court pursuant to Maryland Rules 2–613(b) and 16–754(c). Following a hearing, at which the respondent failed to appear, the Circuit Court made the following findings of fact:

“Respondent was admitted to the bar of Maryland on June 5, 1996. On or about December 4, 2005, Complainant, who is presently serving a life sentence at the federal penitentiary in Lewisburg, Pennsylvania, retained Respondent for representation in a habeas corpus proceeding. On that date, Complainant signed a retainer agreement that obligated him to pay Respondent a flat fee of $20,000.00, which would be placed in her operating account and considered earned upon undertaking the representation. Complainant, however, did not give informed consent, confirmed in writing, for Respondent to immediately place the fee in her operating account. The retainer agreement also provided that the Complainant would make an advance payment of $10,000.00, which would be non-refundable once earned, regardless of the case's outcome. In exchange, Respondent agreed to file a successive habeas corpus petition.

“Pursuant to the parties' fee agreement, the following payments were made: $8,225.00 on August 15, 2005; $1,550.00 on May 23, 2006; $500.00 on August 7, 2006; and $10,000.00 on September 21, 2006, for a total of $20,275.00. All of the payments, except for the $500.00 installment, were deposited in Respondent's operating account, which was titled ‘IOLTA.’ ¹⁴

“Respondent never filed a habeas corpus petition on Complainant's behalf. On March 18, 2008, Respondent sent Complainant a letter stating that, because of health issues, she could no longer represent him, but could solicit the assistance of another attorney on his behalf. She also stated that Complainant could terminate her as his counsel, at which time they would ‘discuss the terms of refunding his fee.’ Complainant did not respond to this letter. Respondent wrote him again on May 5, 2008, inquiring how he wished to proceed. This was her last correspondence to Complainant.

“On April 8, 2008, the Court of Appeals decertified Respondent for failure to pay the Client Protection Fund assessment. Despite being stripped of her ability to legally practice law in Maryland, Respondent subsequently entered her appearance in three cases: Waterton v. Waterton, 0602SP029202008, in the Circuit Court for Montgomery County; Rose v. Daneri, 713338–FL, in the Circuit Court for Montgomery County; and Shumate v. Duren, CAL 0814488, in the Circuit Court for Prince George's County.

“Complainant sent a letter to Bar Counsel on May 11, 2008, lodging a complaint against Respondent. He stated that he had retained Respondent as counsel for his habeas corpus proceeding, and paid her flat fee for her services, but she had not performed the agreed-upon work. Further, he alleged that, despite numerous attempts, he had not been able to get in contact with her and speak about the status of the case. On May 28, 2008, Assistant Bar Counsel Kathleen McLaughlin forwarded to Respondent a copy of the complaint, requesting a response to the allegations within 15 days. Respondent did not answer this letter. On June 24, 2008, Ms. McLaughlin sent her another request for a response.

“On June 26, 2008, Respondent answered Ms. McLaughlin's correspondence, and enclosed copies of her letters to Complainant to demonstrate her attempts at communication. Ms. McLaughlin, in turn, wrote to Respondent on July 8, 2008, stating that Complainant no longer required her services, but emphasized that he wanted his fee returned. This letter was unanswered, so on July 21, 2008, Ms. McLaughlin again wrote to Respondent, requesting copies of her billing statements, evidence that the retainer payment was placed in her escrow account, and documentation concerning disbursement of Complainant's funds, within 10 days.

“On July 17, 2008, Complainant wrote to Ms. McLaughlin, and enclosed a letter from Gary Roehm, Esq., dated July 14, 2008, indicating that he had been hired by Respondent to work on Complainant's habeas corpus proceeding. However, in his correspondence to Ms. McLaughlin, Complainant stressed that he did not want, nor did he agree to, Respondent hiring substitute counsel and still desired the refunding of his fee. This letter was forwarded to Respondent on July 31, 2008, and on August 18, 2008, Gary Huggins, Esq., sent Bar Counsel a response on her behalf. Mr. Huggins stated that Respondent had already paid $3,750.00 to another attorney and a private investigator for Complainant's case. Mr. Huggins, however, failed to provide the documents previously requested by Mr. McLaughlin. Therefore, on August 28, 2008, Ms. McLaughlin wrote to Mr. Huggins, requesting evidence of Complainant's consent to Respondent depositing the $20,000.00 fee immediately into her operating account. In a letter, dated September 10, 2008, Respondent stated that the retainer agreement itself authorized placement of the advance fee payment in her operating account. Respondent never returned any portion of Complainant's fee.

“In light of the Complaint and Respondent's failure to comply with Petitioner's requests, Bar Counsel assigned Dennis Biennas, its investigator, to look into the matter. As part of his investigation, Mr. Biennas arranged to interview Respondent on November 20, 2008. Respondent, however, canceled the appointment on the morning of the interview, and rescheduled for December 3, 2008. On December 3, Respondent again canceled the appointment, after Wendy Hartman, a Virginia-barred attorney, advised her to seek counsel and arrange for a new interview date. Mr. Biennas did not hear from Respondent after December 3, so on December 16 he wrote her a letter, seeking a new appointment date and reciting his previous efforts to set up a meeting. Because Respondent failed to answer this letter, Mr. Biennas ceased the investigation on January 9, 2009.

“On February 9, 2009, Albert Wilson, Jr., Esq., wrote to Ms. McLaughlin and Glenn Grossman, Deputy Bar Counsel, regarding Respondent's disciplinary investigation, stating that she had performed substantial work on Complainant's case (138.5 hours), and in support of this contention, enclosed a record log of the time spent on the case, for which she billed at an hourly rate of $225.00.”

(Internal citations and footnotes omitted).

From these facts, the hearing judge drew conclusions of law, as follows:

“1. M[L]RPC 1.1—Competence, M[L]RPC 1.2(a)[ ¹⁵]—Duty to Consult with Client and M[L] RPC 1.3—Diligence

“Although Respondent may have been competent to represent Complainant in his habeas corpus proceeding, the facts demonstrate a complete failure to file a habeas corpus petition, the purpose of Respondent's representation. The Court of Appeals has held that an attorney's complete failure to file a petition on behalf of his/her client, such as an emergency or adoption petition, constitutes a violation of the Maryland Rules of Professional Conduct (“M [L]RPC”) 1.1 (See Attorney Grievance Comm'n v. McCulloch, 404 Md. 388 (2008); Attorney Grievance Comm'n v. Guida, 391 Md. 33 (2006)). This court similarly finds, by clear and convincing evidence, that Respondent's complete disregard for Complainant's case and the habeas corpus petition violated M[L]RPC 1.1.

“Additionally, in violation of M[L]RPC 1.2(a) and 1.3, Respondent failed to exercise reasonable diligence on Complainant's behalf and consult with him about the case. After May, 2008, Respondent simply walked away from the matter, and, although she initially stated that Complainant might be entitled to a refund of his fee, she subsequently ended all communication. Then, from November, 2008, until January, 2009, Respondent canceled several appointments and failed to meet with Mr. Biennas, thus ignoring her duty to cooperate with the disciplinary investigation.

“This court finds, by clear and convincing evidence, that Respondent's complete abandonment of her duties and responsibilities to Complainant constituted a violation of M[L]RPC 1.1, 1.2(a) and 1.3.

“2. M[L]RPC 1.4(a)(3)—Communication

“In July, 2008, Bar Counsel forwarded Complainant's letters to Respondent, indicating that he no longer wished to retain her as counsel, but wanted his fee returned, pursuant to her March, 2008, offer. Respondent never answered this...