Attorney Grievance Comm'n of Md. v. Smith, 26, 74, Sept. Term, 2016

• Decision Date: 19 January 2018
• Docket Number: No. 26, 74, Sept. Term, 2016,26, 74, Sept. Term, 2016
• Citation: 177 A.3d 640,457 Md. 159
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Edward SMITH, Jr.
• Court: Court of Special Appeals of Maryland

457 Md. 159

177 A.3d 640

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Edward SMITH, Jr.

No. 26, 74, Sept. Term, 2016

Court of Appeals of Maryland.

January 19, 2018

ARGUED BY Lydia E. Lawless, Esquire, Bar Counsel, (Jennifer Thompson, Asst. Bar Counsel, Atty. Grievance Commission of Maryland), FOR PETITIONER

ARGUED BY Landon M. White, Esquire (Kerrie A. Campbell and RoIand P. Brown), Baltimore, MD, FOR RESPONDENT

Barbera, C.J., Greene, McDonald, Hotten, Getty, Lynne A. Battaglia (Senior Judge, specially assigned), John F. McAuliffe (Senior Judge, specially assigned), JJ.

Greene, J.

On August 8, 2016, the Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 19–721, filed a "Petition for Disciplinary or Remedial Action" against Edward Smith, Jr. ("Respondent"). On December 17, 2016, Petitioner filed a second "Petition for Disciplinary or Remedial Action" against Respondent. These petitions, arising out of Respondent's representation of three individuals in separate post-conviction proceedings, alleged that Respondent violated various Maryland Attorney's Rules of Professional Conduct ("MARPC" or "Rule"),¹ specifically 19–301.1 (Competence),² 19–301.2 (Scope of Representation and Allocation of Authority Between Client and Attorney),³ 19–301.3 (Diligence),⁴ 19–301.4 (Communication),⁵ 19–301.5 (Fees),⁶ 19–301.15 (Safekeeping Property),⁷ 19–301.16 (Declining or Terminating Representation), ⁸ 19–305.3 (Responsibilities Regarding Non–Attorney Assistants),⁹ 19–308.1 (Bar Admission and Disciplinary Matters),¹⁰ 19–308.4 (Misconduct),¹¹ 19–404 (Trust Account—Required Deposits),¹² 19–407 (Attorney Trust Account Record–Keeping),¹³ 19–408 (Commingling of Funds)¹⁴ and 19–410 (Prohibited Transactions).¹⁵ On January 4, 2017, upon Petitioner's motion, this Court issued an order consolidating the petitions.

This Court referred the matter to the Honorable Yvette M. Bryant of the Circuit Court for Baltimore City for a hearing and to render findings of fact and conclusions of law pursuant to Rule 19–727. Judge Bryant conducted an evidentiary hearing on April 25, April 26, May 1, and May 2, 2017. Thereafter, Judge Bryant issued Findings of Fact and Conclusions of Law, in which she found, by clear and convincing evidence, that Respondent's acts constituted violations of Rules 19–301.1, 19–301.2, 19–301.3, 19–301.5(a), 19–301.15(a), (c), (d), and (e), 19–301.16(d), 19–305.3(a) and (b), 19–308.1(a), (b), 19–308.4(a), (b), (c) and (d), 19–404, 19–407(a)(2)(A), (a)(2)(B), (a)(3)(A), (a)(3)(b), and b), 19–408, and 19–410(c). For the reasons explained herein, we conclude that the hearing judge's conclusions of law as to violations of the aforementioned Rules were supported by clear and convincing evidence.

FINDINGS OF FACT

The hearing judge conducted an evidentiary hearing that lasted four days, after which she made the following findings of fact. Respondent was admitted to practice law in Maryland on December 19, 1975, and has "extensive experience in handling criminal matters, including post-conviction proceedings." Respondent maintained a law practice in Baltimore City, and relied on the assistance of Mr. Calvin Robinson–Bey, whom Respondent had successfully represented in a post-conviction matter. Upon Mr. Robinson–Bey's release, Respondent hired him to assist in drafting post-conviction petitions.

Respondent's representation of Mr. DaJuan Marshall involved the drafting of a post-conviction petition. The hearing judge found that there was a dispute regarding when Respondent's representation of Mr. Marshall actually began:

In 2011, DaJuan Marshall ("Marshall") received a sentence of life plus 20 years. He appealed his conviction, which was upheld by the Court of Special Appeals and which culminated on December 23, 2013, when the Court of Appeals denied his Petition for Writ of Certiorari.

In Spring 2014, Marshall's mother, Ms. Tinnie Monroe ("Ms. Monroe") and his stepfather ("Mr. Monroe") consulted with Respondent with a view to instituting post-conviction proceedings. When he initially discussed the matter with the Monroes, Respondent agreed to review the trial transcript, have his "associate" review the transcript, and get in touch with the Monroes. Respondent also advised the Monroes he would charge a "flat fee" of $7,500 for the representation.

Although there exists no documentation that allows the court to determine the date Respondent definitively agreed to pursue post-conviction proceedings on Marshall's behalf, the record reflects Marshall wrote to Respondent on April 14, 2014, to address some of the issues he found relevant to his proceedings. On May 1, 2014, Respondent wrote Marshall to discuss the matter, although he had not yet reviewed the transcript....

During Respondent's representation of Mr. Marshall, the hearing judge found that Respondent failed to communicate with Mr. Marshall in a meaningful way:

Other than the one letter written to Marshall in May 2014, Respondent produced no other written communication he initiated to Marshall and did not testify to having sent additional writings to Marshall. Respondent never met with Marshall in person. Between July 2014 and December 20, 2014, when Marshall terminated the attorney-client relationship, Marshall and the Monroes primarily communicated with Mr. Robinson–Bey....

Respondent did not communicate with Marshall in a manner that would allow him to hear Marshall's voice, counsel Marshall regarding the arguments to be made based upon the contents of the transcript once Respondent had an opportunity to review it or counsel Marshall as to the need to preserve his federal rights through a timely filing of the post-conviction petition. Indeed, the most communication Respondent had with Marshall was after Marshall expressed displeasure with the product, days before the petition needed to be filed in order to preserve Marshall's federal habeas corpus rights.

When Marshall discussed his displeasure with the petition Mr. Robinson–Bey prepared, Respondent acknowledged to Marshall that he had not read the petition, but urged Marshall to allow him to file the petition as drafted and amend the petition at a later date. Again, Respondent did not take steps during the conversation to assure Marshall that he would ensure the proposed petition was reworked in time to file a product that would allow for preservation of the federal rights. As a result of the petition not having been filed, Marshall lost his opportunity to seek federal habeas corpus relief, a loss Respondent contends was the result of Marshall having listened to fellow inmates rather than his counsel. Respondent, who recalls only having one conversation with Marshall during the entire representation, is not the least bit contrite about the situation in which Marshall found himself. He attributes the problem singly to Marshall listening to "jailhouse lawyers." [ ]

Respondent's file contains no memoranda or other documentation that would shed light on the dates of any discussions he personally had with Marshall concerning the post-conviction proceedings. The evidence shows Ms. Monroe, Mr. Monroe and Marshall's conversations were held primarily with Mr. Robinson–Bey throughout the course of representation; however, the court does not find Mr. Robinson–Bey or Respondent represented to Ms. Monroe or Marshall that Mr. Robinson–Bey was, in fact, an attorney. Neither does the court find Respondent permitted Mr. Robinson–Bey to hold himself out as an attorney. The court does find that the lack of communication and direct involvement in handling that post-conviction matter is one explanation for Respondent's inability to recall facts and details and to answer fact-specific questions concerning his representation.

Respondent's limited work on Mr. Marshall's case, according to the hearing judge, led to Mr. Marshall's dissatisfaction with Respondent's representation but did not cause Mr. Marshall's failure to preserve his federal habeas corpus rights:

Upon receiving the transcript, but having received no retainer, Respondent read the transcript, discussed the matter with Mr. Robinson–Bey and assigned to Mr. Robinson–Bey the task of drafting the post-conviction petition.

The court finds that contrary to his earlier representations to Bar Counsel, Respondent did not personally prepare the petition or revise the petition .... After directing Mr. Robinson–Bey to draft the petition, Respondent did not supervise Mr. Robinson–Bey's performance in preparing the petition, and, by Respondent's own admission, did not read the post-conviction petition prior to submitting the petition to Marshall for his review in December 2014.

To preserve Marshall's federal habeas corpus rights, post-conviction proceedings needed to be instituted within one year of the December 23, 2013 denial of Marshall's petition for writ of certiorari. 28 U.S.C. § 2244 (d)(1)(A). The court does not find Respondent's actions caused Marshall to refuse to file the petition in order to preserve his federal rights. That was a choice Marshall made, as he certainly could have filed the petition and later filed an amendment. However, the court does find Respondent essentially delegated the entire matter to Mr. Robinson–Bey, could not intelligently respond to Marshall's concerns because he had not ridden herd over the matter and caused Marshall to lose faith in Respondent's ability to properly handle the matter.

The court does not find Respondent delayed providing services to Marshall. The retainer was not paid until late November, weeks before the date the petition needed to be filed to preserve Marshall's federal rights. However, the court finds Respondent's failure to review the post-conviction petition after it was prepared by Mr. Robinson–Bey (whenever that was) and his failure to meaningfully discuss the filing with Marshall until the eleventh hour placed Marshall in the unenviable position of having to make a choice to file the petition "as is" (with

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