Attorney Grievance Comm'n of Md. v. Bocchino

• Decision Date: 25 November 2013
• Docket Number: Misc. Docket AG No. 39,Sept. Term, 2012.
• Citation: 435 Md. 505,80 A.3d 222
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. David Eugene BOCCHINO.
• Court: Maryland Court of Appeals

435 Md. 505

80 A.3d 222

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.David Eugene BOCCHINO.

Misc. Docket AG No. 39, Sept. Term, 2012.

Court of Appeals of Maryland.

Nov. 25, 2013.

JaCina N. Stanton, Asst. 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, ADKINS, McDONALD, WATTS, JJ.

BARBERA, C.J.

Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, attorney David Eugene Bocchino,¹ on September 27, 2012, pursuant to Maryland Rule 16–751(a). The Petition alleged that Respondent engaged in professional misconduct, in violation of the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”), in two separate client matters: his representation of Lisa and Montgomery Embrey in an automobile warranty action, and his representation of Lily Cleaves in a credit card debt collection matter. Specifically, the Petition alleged that Respondent violated MLRPC 1.1 (competence) ²; 1.3 (diligence) ³; 1.4(a) and (b) (communication) ⁴; and 8.4(a), (c), and (d) (misconduct) ⁵ with respect to the Embreys, and 1.1; 1.3; 1.4(a) and (b); 1.15(a) (safekeeping property) ⁶; 5.5(a) (assistance in the unauthorized practice of law) ⁷; and 8.4(a), (c), and (d) with respect to Ms. Cleaves.

On October 1, 2012, this Court designated the Honorable M. Elizabeth Bowen of the Circuit Court for Howard County (“the hearing judge”) to conduct an evidentiary hearing and file written findings of fact and conclusions of law pursuant to Maryland Rules 16–752(a) and 16–757(c). Judge Bowen held the hearing on January 29, 2013. She then filed her Statement of Findings of Fact and Conclusions of Law with this Court on April 10, 2013, concluding by clear and convincing evidence that Respondent violated MLRPC 1.1; 1.3; 1.4(a) and (b); and 8.4(a), (c), and (d) with respect to the Embreys, and MLRPC 1.1; 1.3; 5.5(a); and 8.4(a) and (d) with respect to Ms. Cleaves.

I.

Based on the evidence accepted at the January 29, 2013, hearing, the hearing judge set forth the following findings of fact:

Respondent has been a member of the Bar of this Court since December 16, 1997. He practiced for a short time at a small private law firm before joining the Office of the Attorney General, where he worked for seven years until he took medical retirement. He established his own practice in 2008.

Representation of the Embreys

In 2009, Respondent assumed an “of counsel” position at the Ohio law firm of Kahn & Associates (“Kahn”), in which he represented the firm's clients in “lemon lawsuits” ⁸ in Maryland. Another Kahn attorney, Christal Edwards, had filed suit on behalf of Lisa and Montgomery Embrey against General Motors (“GM”) in the Circuit Court for Frederick County on August 6, 2009, alleging that the Embreys' Chevrolet malfunctioned. Kahn re-assigned the case to Respondent in September 2009, but Respondent did not enter his appearance until October 27, 2009. On October 5, 2009, the Circuit Court issued a Scheduling Order and Order for Civil Mediation setting deadlines for discovery, designation of expert witnesses, motions, and mediation.

On October 27, 2009, the same day he entered his appearance, Respondent filed a Line to Enter Change of Address from Kahn's Ohio mailing address to 205 E. 28th Street, Baltimore, MD 21218. Within a month of entering his appearance, Respondent moved his office from the 28th Street location in Baltimore to his home in Abingdon. As a result, he began to employ P.O. Box 347, Abingdon, MD 21009 as his professional mailing address.

Respondent had not filed a second Line to Enter Change of Address with the Circuit Court. The attorney for GM in this matter, Barbara Duvall, acted as opposing counsel on numerous other unrelated cases with Respondent during this period and, as a consequence, was aware of his new mailing address. She thus addressed all correspondence in the Embreys' case to the Abingdon address and had all filings served there.

On November 13, 2009, Duvall mailed to Respondent interrogatories, a request for production of documents, and a request for admissions of fact. On December 16, 2009, the day on which responses were due, Respondent sent Duvall an email requesting an extension. Duvall consented to that request. Respondent, however, did not provide discovery by the date to which they had agreed. On January 12, 2010, Duvall sent to Respondent via email and regular mail a reminder that the extended deadline had passed, informing him that she would file a Motion to Compel Discovery if he did not provide responses by January 26, 2010. Respondent did not provide discovery, and on January 29, 2010, Duvall filed her Motion to Compel. Respondent filed no response to Duvall's motion. The Circuit Court granted the Motion to Compel on March 3, 2010, entering an order requiring an answer to discovery by March 8, 2010. Respondent never filed any discovery in the matter.

The October 5 Scheduling Order set December 12, 2009, as the deadline by which Respondent was to designate an expert witness in the Embreys' case. In a February 2, 2010, email to Duvall, Respondent admitted that he had failed to designate an expert witness in compliance with the Order. He requested an extension, to which Duvall did not acquiesce. On March 1, 2010, citing Respondent's failures to provide discovery and to designate an expert witness, GM filed a Motion for Summary Judgment. Respondent filed no opposition to the motion.

The October 5 Scheduling Order also mandated that the parties participate in mediation. Respondent and a paralegal at Duvall's law firm had corresponded over email in November 2009 and designated two mutually agreeable dates on which to schedule the mediation: March 2 and 3, 2010. The mediator sent his letter confirming March 3, 2010, as the chosen date to Christal Edwards. Respondent did not notify the Embreys of the two potential dates for the mediation and failed to confirm with Duvall's paralegal which date the mediator had selected. Neither Respondent nor the Embreys appeared at the mediation.

On March 12, 2010, Duvall filed a Motion for Sanctions, to which Respondent filed no opposition. On April 1, 2010, the Circuit Court granted the motion, dismissed the Embreys' case with prejudice, and assessed against the Embreys GM's attorney's fees and costs.

On June 7, 2010, Respondent filed a Motion to Vacate Judgment Due to Fraud, Mistake, or Irregularity. In the motion, Respondent stated that, because of his change of address, he “never received documentation of any kind from the court and only a few of Defendant's filings,” and he cited this as the reason the court should vacate the dismissal.⁹ He also stated in the motion that he had filed a Line to Enter Change of Address on October 27, 2010, though he filed this Line on October 27, 2009, and the address he submitted at that time was his Baltimore address. On June 24, 2010, the Circuit Court denied the motion.

When Kahn re-assigned the Embreys' case to Respondent, the firm informed Ms. Embrey and gave her Respondent's contact information. Respondent and Ms. Embrey communicated over email on October 13, 2009, regarding whether Ms. Embrey should take her car to an automobile mechanic for service, but Respondent did not contact her again until the end of January 2010. Although Ms. Embrey offered contradictory testimony about the extent of her attempts to contact Respondent during this period, Respondent testified that there was no great need for communication over those months. The hearing judge, however, found this three-month period to be a critical one, requiring client input for the purposes of responding to discovery, scheduling the court-ordered mediation, and giving an expert the opportunity to inspect the Embreys' car.

After the depositions on February 15, 2010, at which she learned that Respondent had failed to provide responses to GM's interrogatories, Ms. Embrey contacted Respondent frequently via telephone and email to request information about the status of her case. The hearing judge found that Respondent did not respond to these requests to his client's satisfaction.

Respondent admitted that he did not inform the Embreys of his failure to designate an expert witness or provide discovery, nor of GM's Motions to Compel Discovery, for Summary Judgment, and for Sanctions. He did inform Ms. Embrey that they had missed the court-ordered mediation, but later told her, incorrectly, that this was the reason her case had been dismissed. After the Circuit Court denied the Motion to Vacate, Respondent assured Ms. Embrey that he would file a Motion for Reconsideration, but he never did so.

Respondent also failed to communicate to the Embreys GM's repeated requests for a settlement demand. The hearing judge found this failure of communication to be incompetent given Respondent's acknowledgmentthat he did not believe the Embreys were entitled to the remedy they desired (replacement of their vehicle), and that Respondent's failure to comply with GM's discovery demands rendered his clients' case susceptible to dismissal.

Based upon these factual findings, the hearing judge concluded that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); and 8.4(a), (c), and (d) (misconduct). The hearing judge explained her conclusions, as follows:

Rule 1.1 Competence

Respondent failed to provide competent representation to the Embreys. He failed to file any answers to GM's requests for discovery, despite reminders and extensions from opposing counsel and an additional five days for compliance given by the court in the order to compel. He failed to designate an expert in compliance with the deadline in the scheduling order, despite a clear understanding that this failure would prove fatal to his clients'...