Attorney Grievance Comm'n of Md. v. Framm

• Decision Date: 24 August 2016
• Docket Number: Sept. Term, 2014,Misc. Docket AG No. 73
• Citation: 144 A.3d 827,449 Md. 620
• Parties: Attorney Grievance Commission of Maryland v. Rhonda I. Framm
• Court: Court of Special Appeals of Maryland

449 Md. 620

144 A.3d 827

Attorney Grievance Commission of Maryland

v.Rhonda I. Framm

Misc. Docket AG No. 73

Sept. Term, 2014

Court of Appeals of Maryland.

August 24, 2016

Lydia E. Lawless, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Atty. Grievance Commission of Maryland), for Petitioner

Alvin I. Frederick, Esq. of Eccleston & Wolf in Hanover, MD (Richard J. Berwanger, Esq. of Eccleston & Wolf in Hanover), for Respondent

ARGUED BEFORE: Barbera, C.J., Battaglia,^* Greene, Adkins, McDonald, Watts and Hotten, JJ.

Barbera

, C.J.

Petitioner, the Attorney Grievance Commission of Maryland (“Commission”), filed in this Court on December 15, 2014, a Petition for Disciplinary or Remedial Action against Respondent, Rhonda I. Framm. The Commission charged Respondent with violating Maryland Lawyers' Rules of Professional Conduct (“MLRPC”) 1.1 (competence); 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); 1.5 (fees); 1.7 (conflict of interest); 1.15 (safekeeping property); 3.3 (candor toward the tribunal); 8.4(a), (c), and (d) (misconduct), and Maryland Rule 16–606.1 (attorney trust account record-keeping)¹ . Those charges arise from Respondent's representation of Robert L. Wilson and her subsequent suit against Mr. Wilson for attorney's fees. On December 16, 2014, this Court transmitted the matter to the Circuit Court for Baltimore County and designated the Honorable John J. Nagle, III (“the hearing judge”) to conduct an evidentiary hearing and make findings of fact and conclusions of law.

The hearing judge presided over a hearing on June 1, 2, and 3, 2015, at which Respondent testified and presented evidence. On September 1, 2015, the hearing judge issued written findings of fact and conclusions of law, concluding that Respondent violated MLRPC 1.4, 1.7, 1.15, 3.3, 8.4(a) and (c), and Maryland Rule 16–606.1(a), but did not violate MLRPC 1.1, 1.2, 1.3, or 1.5. The hearing judge drew no conclusion on the charged violation of MLRPC 8.4(d).

Both Petitioner and Respondent filed exceptions. Bar Counsel, on behalf of Petitioner, excepted to the hearing judge's failure to make certain findings of fact and render a conclusion as to MLRPC 8.4(d). Petitioner also excepted to the hearing judge's conclusion that Respondent did not violate MLRPC 1.1, 1.2, 1.3, and 1.5 and the hearing judge's failure to find the presence of certain aggravating factors. Respondent challenged the hearing judge's conclusions that she violated any of the charged rules of professional conduct, aside from MLRPC 1.15 and Maryland Rule 16–606.1(a).

Following oral argument on February 4, 2016, we issued an Order of Remand instructing the hearing judge to make additional findings of fact and clarify his conclusions of law regarding MLRPC 3.3(a)(1), 8.4(c), and 8.4(d). Thereafter, the hearing judge issued Supplemental Findings and Conclusions of Law (“supplemental findings”), finding additional facts as set forth in Petitioner's exceptions, finding that Respondent's actions that constituted violations of MLRPC 3.3(a)(1) and 8.4(c) were done intentionally, and concluding that Respondent violated MLRPC 8.4(d).

Petitioner and Respondent each filed responses to the supplemental findings. Petitioner withdrew its exception to the hearing judge's failure to make findings of fact and render a conclusion as to MLRPC 8.4(d) and renewed its remaining exceptions. Respondent renewed her previously filed exceptions and excepted to all of the additional findings and conclusions made in the supplemental findings.

For reasons we shall explain, we agree with the hearing judge that Respondent violated MLRPC 1.4; 1.7; 1.15; 3.3; and 8.4(a), (c), and (d); as well as Maryland Rule 16–606.1(a), but did not violate MLRPC 1.3. Moreover, we agree with Petitioner that Respondent's misconduct also violated MLRPC 1.1, 1.2, and 1.5.

I.

The hearing judge made the following findings of fact by clear and convincing evidence.² Respondent was admitted to the Bar of the Court of Appeals of Maryland on December 1, 1981, and maintains a solo law practice in Baltimore County. Respondent's interaction with Robert L. Wilson began subsequent to a then-recently entered judgment of divorce in the Circuit Court for Baltimore County before the Honorable Sherrie R. Bailey (“the divorce case”). On June 17, 2010, Mr. and Mrs. Wilson, through their respective counsel, had negotiated the terms of a settlement agreement in the divorce case, in which, relevant here, Mr. Wilson would pay Mrs. Wilson $55,000 plus interest over the next five years or $50,000 within sixty days. Judge Bailey accepted the settlement agreement and entered accordingly a judgment of absolute divorce.

Mr. Wilson first met Respondent for an initial consultation on June 23, 2010, to assist him in vacating the divorce judgment because he did not understand the settlement agreement and was dissatisfied with its terms. He retained Respondent on June 24, 2010. Mr. Wilson signed a retainer agreement providing that he would pay an initial retainer of $10,000 and Respondent would bill at an hourly rate of $425. On June 25, 2010, Mr. Wilson paid Respondent $10,125. Respondent admitted that she failed to create and maintain records of Mr. Wilson's payments and consequently conceded that she violated Maryland Rule 16–606.1(a).

Mr. Wilson typically sought and received help from his friend, Sandra McLean-Stewart (“Ms. Stewart”), and his cousin, Kevin Griggs, in understanding complex information, including legal documents. As described by Mr. Griggs, Mr. Wilson was able to understand “not too complicated matters” if they were broken down and explained slowly. Ms. Stewart accompanied Mr. Wilson to one of the three initial meetings with Respondent, but not the meeting at which he signed the retainer agreement.

Divorce Case: Psychological Evaluation and Motion to Vacate

After consulting with Mr. Wilson, Respondent concluded that Mr. Wilson had significant claims to a portion of Mrs. Wilson's marital property. Respondent also recognized that Mr. Wilson had a diminished capacity to understand information and explained to him that, although vacating the settlement agreement underlying the divorce judgment would be difficult, he might be successful if he could prove that he was incapacitated. Respondent referred Mr. Wilson to a psychologist, Morris S. Lasson, Ph.D., P.A., to determine whether there were sufficient grounds for Mr. Wilson to file a motion to vacate the settlement agreement on the ground of incapacity.

On June 28, 2010, Dr. Lasson conducted an initial evaluation of Mr. Wilson and concluded in a written report that Mr. Wilson had a neuro-cognitive disorder that impaired his ability to comprehend complex information. Dr. Lasson noted that Mr. Wilson suffered a stroke

around 1964 that affected his speech and memory. Dr. Lasson explained in his report:

[Mr. Wilson]'s physical appearance was satisfactory. At the same time, his orientation to time, person and place was erratic. He had difficulty absorbing details and showed lapses of attention. He was unable to maintain concentration explaining, “I need time to think it out.” Mr. Wilson recited the alphabet incorrectly on his fingers. He did not know the name of the U.S. president nor was he aware of today's date. He showed both expressive and receptive aphasia

and speech stammering. His memory was flawed. He showed difficulty with encoding, retrieval and focusing skills. This man cannot process information fluidly and has sensory integration problems.

With reasonable psychological certainty, Robert Wilson has a neuro-cognitive disorder and cannot be held responsible to fully understand complex information and details.

On July 1, 2010, Respondent, on behalf of Mr. Wilson, filed a motion to vacate the divorce judgment and attached Dr. Lasson's report. In the motion, Respondent argued that Mr. Wilson lacked the capacity to understand the settlement agreement and consequently could not consent to it. Respondent further requested an extension of time for a complete psychological evaluation of Mr. Wilson to determine whether he required a guardian. Mrs. Wilson, through her attorney, Diana Denrich, filed a response in opposition to the motion to vacate the judgment.

Dr. Lasson conducted a complete evaluation of Mr. Wilson and issued a report, dated August 9, 2010, in which he opined that Mr. Wilson should have a legal guardian. In the August 2010 report, Dr. Lasson explained that Mr. Wilson has a cognitive impairment that affects “his ability to understand and comprehend both the written and spoken word. He should be counseled constantly not to sign any documents and, even in a verbal encounter, he should have guidance and direction to be absolutely certain that he understands to the best of his ability[.]” Dr. Lasson also stated that, “[w]hen asked to count from 20 to 0 backwards, [Mr. Wilson] forgot specific numbers.” On August 16, 2010, Respondent wrote to Ms. Denrich to explain that she was in the process of having a guardian appointed for Mr. Wilson. Respondent attached to that correspondence Dr. Lasson's August 2010 report.

Guardianship Case: The First Petition

On April 20, 2011, Respondent filed a Petition for Appointment of Guardian of the Property of Robert Wilson in the Circuit Court for Baltimore County (“the guardianship case”). In that petition, Respondent listed Mr. Wilson as the Petitioner and named Mr. Griggs as the person Mr. Wilson wished to be appointed as his guardian. Respondent attached certificates from Dr. Lasson and Mr. Wilson's treating physician, Beth Marcus, M.D., to show that Mr. Wilson had capacity to consent to a guardian. Those certificates were not verified and did not include the doctors' full names, qualifications, history with Mr. Wilson, or opinions as to the cause and extent of his disability.

Two days later, the Circuit Court rejected the petition because it did not comply with Maryland Rule 10-301 and the certificates did not comply with Maryland Rule 10-202. Before the...