Attorney Grievance Comm'n of Md. v. Davy

Decision Date27 November 2013
Docket NumberMisc Docket AG No. 2,Sept. Term, 2011.
Citation80 A.3d 322,435 Md. 674
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Michelle DAVY.
CourtMaryland Court of Appeals

435 Md. 674
80 A.3d 322

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Michelle DAVY.

Misc Docket AG No. 2, Sept. Term, 2011.

Court of Appeals of Maryland.

Nov. 27, 2013.


[80 A.3d 326]


Dolores O. Ridgell, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

Michelle Davy, Largo, Maryland, for respondent.


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

WATTS, J.

Foremost among matters, this case concerns a Maryland lawyer who promised to file a complaint on a client's behalf, learned that the court had rejected the complaint for filing, and then repeatedly deceived her client as to the status of the litigation while demanding additional retainer payments.

Michelle Hamilton Davy (“Davy”), Respondent, a member of the Bar of Maryland, represented three clients in two unrelated matters. Linda Smalls (“Smalls”) retained Davy to institute an employment discrimination action against her former employer. Bobby McAdams (“McAdams”), a jeweler doing business as “Watch Tune Up, Inc.” (“Watch Tune Up”), retained Davy to represent him and his business as both filed for bankruptcy. Both Smalls and McAdams filed complaints against Davy with the Attorney Grievance Commission of Maryland (“the Commission”), Petitioner.

On February 22, 2011, in this Court, the Commission filed a “Petition for Disciplinary or Remedial Action” against Davy, charging her with violating the following Maryland Lawyers' Rules of Professional Conduct (“MLRPC”): 1.1 (Competence), 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.3 (Diligence), 1.4 (Communication), 1.5 (Fees), 1.15 (Safekeeping Property), 1.16 (Declining or Terminating Representation), and 8.4 (Misconduct). On February 28, 2011, this Court referred the case to the Honorable Beverly J. Woodard (“the hearing judge”) of the Circuit Court for Prince George's County (“the circuit court”). On May 8 and 9, 2012, the hearing judge conducted a hearing. On December 21, 2012, the hearing judge filed, in this Court, an opinion including findings of fact and concluding that, in her representation of Smalls, McAdams, and Watch Tune Up, Davy had violated MLRPC 1.1, 1.2(a), 1.3, 1.4, 1.5(a), 1.5(b), 1.15(c), 1.16(d), 8.4(c), and 8.4(d).

On September 4, 2013, we heard oral argument. On September 5, 2013, in a per curiam order, we disbarred Davy. See Attorney Grievance Comm'n v. Davy, 434 Md. 246, 74 A.3d 727 (2013). We now explain the reasons for Davy's disbarment.

[80 A.3d 327]

1

I. Hearing Judge's Findings of Fact

In a comprehensive forty-five page opinion, the hearing judge found the following facts, which we summarize.

On June 5, 1996, this Court admitted Davy to the Bar of Maryland. On September 8, 2003, with her consent, this Court indefinitely suspended Davy from the Bar of Maryland. See Attorney Grievance Comm'n v. Hamilton, 377 Md. 54, 832 A.2d 170 (2003).2 In Hamilton, id., 377 Md. 54, 832 A.2d 170, this Court permitted Davy to apply for reinstatement after one year, and ordered that, before applying for reinstatement, Davy both “refund all fees paid to her by [seven] individuals” and “obtain a physical/ psychological evaluation demonstrating her fitness to practice law[.]” On December 7, 2004, this Court reinstated Davy to the Bar of Maryland. See In re Petition for Reinstatement of Hamilton, 384 Md. 156, 862 A.2d 992 (2004).

In May 2008, Davy became a solo practitioner. At the time of her alleged misconduct, Davy's office was in Prince George's County, Maryland.

A. Davy's Representation of Smalls

From 2002 through 2007, Smalls worked as a civil servant in the Office of the Administration of the Executive Office of the President. In 2007, Smalls's employment with the office ended. As a result, Smalls filed multiple complaints with the Equal Employment Opportunity Commission, which issued Smalls a “right to sue” letter that imposed a deadline of November 6, 2009, for the lawsuit.

On or about October 20, 2009, Smalls contacted Davy through Davy's website. On or about October 23, 2009, Davy telephoned and spoke with Smalls, who sought legal advice about the termination of her employment. Smalls told Davy that a lawsuit would need to be filed no later than November 6, 2009. Davy told Smalls that she would represent her for a charge of $200 per hour, and that she would need a retainer of between $2,500 and $3,000.

On October 26, 2009, Smalls brought a check in the amount of $3,000 to Davy's office. At that time, Davy told Smalls that she wanted an additional $2,000. Smalls gave Davy the check for $3,000 and agreed to allow $2,000 to be charged to her credit card. Although Davy knew that she had not yet earned $5,000, she never deposited any of Smalls's payments into a client trust account. Before the hearing judge, Davy stated that she did not deposit Smalls's

[80 A.3d 328]

payments into a client trust account because, at the time that she began representing Smalls, she had been corresponding with the Commission, pursuant to a conditional diversion agreement, about a prior complaint concerning the written retainer agreement format that she had been using. 3

After receiving Smalls's check and credit card information, Davy told Smalls that she wanted a $20,000 retainer. Smalls requested a payment plan. Davy agreed to let Smalls use a payment plan, but did not tell Smalls when she would have to make payments. Davy did not tell Smalls: (1) how she would use the $5,000 in payments; (2) how much she would charge in total for the representation; or (3) anything about a client trust account. Davy and Smalls agreed to meet again on November 4, 2009, by which date Davy promised to have a complaint ready.

On November 4, 2009, Davy and Smalls met. Davy did not have the complaint or the written retainer agreement. During the meeting, Davy said something to the effect of: “Mamma's got to eat, so you're [ ] going to have to pay this kind of money.” Smalls became emotional and started to leave the room, but Davy stopped her and promised that the complaint would be ready within a couple of hours.

Two days later, on November 6, 2009, at 2:53 a.m., Davy e-mailed Smalls a copy of the complaint. At 9:25 a.m., Smalls e-mailed Davy, stating that the complaint was acceptable. At 9:11 p.m., Davy left the complaint in the box for after-hours filings at the United States District Court for the District of Columbia (“the federal court”).

On November 9, 2009, Davy met with Smalls and gave her a written retainer agreement, under which Davy was entitled to a $5,000 retainer, a $250 “nonrefundable consultation fee,” and a $500 “nonrefundable engagement fee.” Before then, Davy had not told Smalls about either of the nonrefundable fees. The written retainer agreement did not: (1) state that its terms were retroactive; (2) refer to the $5,000 that Smalls had already paid; (3) include details of a payment plan; or (4) state that the retainer would be $20,000. The hearing judge found that, in the written retainer agreement with Smalls, Davy intentionally failed to state that the retainer would be $20,000 because the $20,000 retainer might have discouraged Smalls from hiring Davy. Although the written retainer agreement stated that the retainer would not be deposited into a client trust account, Davy never pointed out the provision or orally informed Smalls about client trust accounts.

On November 9, 2009, Smalls paid Davy another $5,000. Davy gave Smalls a receipt that reflected a $350 filing fee. Smalls asked Davy for the case number, which Davy promised to provide; Davy, however, made no effort to learn the case number.

On November 13, 2009, the federal court mailed Davy the check for the $350 filing fee, along with an explanation that the federal court had rejected the complaint for filing, as Davy had failed to renew her membership in the federal court's bar and to include a civil cover sheet, summons, and disc with the complaint. On November 18, 2009, the United States Postal Service forwarded the mailing to Davy's address at the time, as Davy no longer

[80 A.3d 329]

lived at the address to which the federal court had sent the mailing.

On November 23, 2009, Davy e-mailed Smalls, stating that “we have been working on billing statements[,]” which she would provide “momentarily,” and asking when Smalls would replenish her account. Smalls e-mailed Davy, stating that she would make another payment by November 29, 2009, and asking whether a summons had been served in the case. Before the hearing judge, Davy stated that Smalls did not deserve a prompt answer to her question about the summons because Smalls had not made additional payments.

On November 24, 2009, Davy telephoned the federal court and spoke with three people about the rejection of the complaint. As of that day, if not before, Davy knew that the federal court had rejected the complaint for filing and not issued a summons. Nonetheless, on that day, Davy e-mailed Smalls, stating: “[W]e will check with the process servers and follow up on their progress and give you a report.” On November 25, 2009, Davy e-mailed Smalls, stating she had followed up with the process server, but that “we have not yet been able to serve the complaint quite yet because the court still has to issue the summons [.] It normally takes several days for the summons to be issued; I also contacted the court to follow up and we will keep you apprised on the progress.” In her e-mail, Davy did not mention that the federal court had rejected the complaint for filing; instead, Davy wrote that “the complaint was filed on time[.]” The hearing judge found that Davy intentionally failed to inform Smalls about the federal court's rejection of the complaint for filing because Davy wanted “to mislead Smalls as to the quality of her representation.”

On November 30, 2009, after having been explicitly advised, several days earlier, of the complaint's rejection, Davy e-mailed Smalls, stating...

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