Attorney Grievance Comm'n of Md. v. Johnson
| Decision Date | 14 December 2016 |
| Docket Number | Misc. Docket AG No. 68, Sept. Term 2015 |
| Citation | 450 Md. 621,150 A.3d 338 |
| Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Jerome P. JOHNSON |
| Court | Court of Special Appeals of Maryland |
Raymond A. Hein, Deputy Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.
Jerome P. Johnson (Bel Air, MD), for Respondent.
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten and Getty, JJ.
This attorney discipline proceeding involves a lawyer who failed to diligently represent a client, failed to adequately communicate with the client, failed to take steps to protect the client's interests after the lawyer's representation ended, failed to respond to Bar Counsel's numerous lawful demands for information, and engaged in conduct that was prejudicial to the administration of justice.
Terrance Venable, Jr. ("Venable") retained Jerome P. Johnson ("Johnson"), Respondent, a member of the Bar of Maryland, to represent him in a child support case in the Circuit Court for Anne Arundel County ("the circuit court"). Despite having advised in open court at a hearing before a magistrate that he would enter his appearance in the child support case, Johnson neither filed his appearance with the circuit court's Civil Department nor paid the appearance fee. After the hearing, the magistrate issued a Report and Recommendations, and Venable asked Johnson to file exceptions. Johnson agreed to do so, and charged an additional fee for the exceptions. Johnson failed to timely file the exceptions; instead, he mailed the exceptions to the circuit court on or after the due date. The circuit court closed the child support case, and the Civil Department returned the exceptions to Johnson. Johnson did not make any attempt to rectify the consequences of his failure to file his appearance or pay the appearance fee, such as refunding the fee for the exceptions. Johnson did not inform Venable that he had failed to pay the appearance fee, that he had mailed the exceptions late, and that the circuit court's Civil Department had returned the exceptions. Additionally, Johnson failed to respond to Venable's requests for updates about the child support case. Venable ultimately filed a complaint against Johnson with Bar Counsel.
On January 21, 2016, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Johnson, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.3 (Diligence), 1.4(a)(2), 1.4(a)(3), 1.4(b) (Communication), 1.5(b) (Communication of Fees), 1.16(d) (Terminating Representation), 8.1(b) (Disciplinary Matters), 8.4(d) (), and 8.4(a) (Violating the MLRPC).1
On January 27, 2016, this Court designated the Honorable Yolanda L. Curtin ("the hearing judge") of the Circuit Court for Harford County to hear this attorney discipline proceeding. On February 16, 2016, the Petition for Disciplinary or Remedial Action was personally served on Johnson. Johnson's answer to the Petition for Disciplinary or Remedial Action was due fifteen days later, on March 2, 2016. Johnson failed to file an answer by the due date.
On March 21, 2016, Bar Counsel filed with the hearing judge a Motion for Order of Default. On March 22, 2016, twenty days after the due date, Johnson filed with the hearing judge a "Motion to Extend Time to Answer Complaint" ("the motion to extend time"). In the motion to extend time, Johnson stated that he had been attempting to retain counsel and was "submitting a request to the [Attorney Grievance] Commission in an attempt to resolve the" attorney discipline proceeding. Johnson stated that he requested additional time to file an answer so that he could consult with and/or retain counsel, and await a response from the Attorney Grievance Commission regarding his request. In the motion to extend time, Johnson provided no specific information concerning his "request" to the Attorney Grievance Commission.
Bar Counsel did not object to the motion to extend time. On April 7, 2016, without ruling on the Motion for Order of Default, the hearing judge granted the motion to extend time and ordered Johnson to file an answer by April 18, 2016. Once again, Johnson failed to file an answer by that date. On April 18, 2016, Bar Counsel mailed to Johnson Interrogatories, a Request for Production of Documents, and a Request for Admission of Facts and Genuineness of Documents.
On April 20, 2016, Johnson filed with the hearing judge a "Motion for Leave to Petition Court of Appeals for Remand" ("the motion for leave"). In the motion for leave, Johnson stated that the Attorney Grievance Commission had informed him that it no longer had jurisdiction over the attorney discipline proceeding, and that, as such, Johnson had to file any request for relief with the hearing judge or this Court. Johnson alleged that there had been "procedural deficiencies under M[aryland] Rule 16–700[,]" and that the Rule "provides no instructions as to addressing alleged procedural deficiencies [.]" Johnson requested that the hearing judge grant him leave to file a "motion for relief" with the hearing judge or this Court. The basis on which Johnson sought to file a "motion for relief" is unclear because Johnson did not provide any information regarding the "alleged procedural deficiencies," and because Maryland Rule 16–700 does not exist. In the motion for leave, Johnson did not address his failure to file an answer by the court-ordered deadline of April 18, 2016.
On April 29, 2016, the hearing judge denied the motion for leave, and issued an order of default against Johnson for the failure to file an answer. The order of default included notice to the parties that a hearing on the Petition for Disciplinary or Remedial Action had been scheduled for June 6, 2016. On May 2, 2016, the order of default was entered. On May 3, 2016, the Office of the Clerk of the Circuit Court for Harford County mailed to Johnson a notice that advised that Johnson could move to vacate the order of default within thirty days of the date of entry of the order of default. The notice also advised that a motion to vacate must state the reasons for Johnson's failure to file an answer and the legal and factual bases for a defense against Bar Counsel's charges.
The thirtieth day after the date of entry of the order of default was June 1, 2016. Accordingly, the deadline for a motion to vacate the order of default was June 1, 2016.
On June 2, 2016, Johnson filed with the hearing judge an untimely "Motion to Vacate Default Order and Reconsideration of Leave to Petition Court of Appeals for Remand" ("the motion to vacate"). Much of the motion to vacate was identical to the motion for leave. For example, Johnson again alleged that there had been procedural defects under "M[aryland] Rule 16–700[,]" and requested that the hearing judge vacate the order of default and permit him to file a "motion for relief[.]" In the motion to vacate, Johnson acknowledged that the hearing judge had ordered him to file an answer by April 18, 2016, but stated that he did not do so because filing an answer before the hearing judge ruled on the motion for leave would have "compromise[d] his ... rights under" Maryland Rule 2–322. Maryland Rule 2–322(a) requires certain defenses to be asserted in a motion to dismiss before an answer is filed and states:
The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process. If not so made and the answer is filed, these defenses are waived.[2 ]
In the motion to vacate, Johnson did not explain how Maryland Rule 2–322 applied to his anticipated "motion for relief."
On June 6, 2016, the hearing judge conducted a hearing, at which the hearing judge gave the parties the opportunity to be heard regarding the motion to vacate, and denied the motion to vacate. During his argument regarding the motion to vacate, Bar Counsel advised the hearing judge that Johnson had failed to respond to Bar Counsel's April 18, 2016 discovery requests; before the hearing judge denied the motion to vacate, Johnson essentially acknowledged failing to respond to the discovery requests. Immediately after denying the motion to vacate, in response to Bar Counsel's offer, the hearing judge advised that Bar Counsel's filing would be accepted by the hearing judge to consider in rendering an opinion in the matter. Without objection, Bar Counsel offered, and the hearing judge admitted into evidence, a binder that included twenty-one documents. The hearing judge asked whether Bar Counsel had any additional evidence, and Bar Counsel responded in the negative. The hearing judge advised Johnson: "[Y]ou don't have the opportunity to present evidence, obviously, because we're in a default posture; however, I do want to give you the opportunity to present to the Court, with Bar Counsel being present here, any mitigation that you would like me to consider on your behalf." Johnson responded only that he had no prior attorney discipline.
On August 3, 2016, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Johnson had violated MLRPC 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), 1.16(d), 8.1(b), 8.4(d), and 8.4(a), but had not violated MLRPC 1.5(b).
On November 4, 2016, we heard oral argument. For the below reasons, we suspend Johnson from the practice of law in Maryland for one year.
The hearing judge found the following facts, which we summarize.
On June 23, 1998, this Court admitted Johnson to the Bar of Maryland.
On or about December 11, 2013, Venable retained Johnson to represent him in a child support case in the Circuit Court...
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