Attorney Grievance Comm'n of Md. v. Dailey

• Decision Date: 23 July 2021
• Docket Number: Misc. Docket AG No. 6, Sept. Term, 2020
• Citation: 474 Md. 679,255 A.3d 1068
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mitzi Elaine DAILEY
• Court: Court of Special Appeals of Maryland

474 Md. 679

255 A.3d 1068

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Mitzi Elaine DAILEY

Misc. Docket AG No. 6, Sept. Term, 2020

Court of Appeals of Maryland.

July 23, 2021

Argued by Christine M. Celeste, Asst. Bar Counsel (Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Mitzi Elaine Dailey, Baltimore, MD, for Respondent,

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, and Biran, JJ.

Getty, J.

The leading rule for the lawyer, as for the [person] of every other calling, is diligence. Leave nothing for tomorrow which can be done today. Never let your correspondence fall behind.

Abraham Lincoln, Collected Works of Abraham Lincoln .¹

Then a humble prairie lawyer, Abraham Lincoln shared this bit of wisdom to illustrate the habits every attorney and professional ought to practice. In his journal, President Lincoln stressed the importance of timeliness, of not taking client money until it has been earned, and of promoting honesty in the legal profession. Id. Today, Lincoln's adages continue to bear a unique importance, as they are practices which are not only recommended, but are required of all attorneys under the Maryland Attorneys' Rules of Professional Conduct.

Although we commend her considerable pro bono work, the Respondent in this case, Mitzi Elaine Dailey, neglected her client's case for nearly a year and failed to maintain communication with him. The fee Ms. Dailey received from her client related to this matter was never placed into an attorney trust account, nor was it ever returned to her client despite her failure to earn it. Throughout Bar Counsel's investigation, Ms. Dailey made several serious mistakes. Ms. Dailey failed to comply with Bar Counsel's investigation. Ms. Dailey failed to provide requested documents or attend her scheduled deposition and circuit court hearing. Finally, to compound all of this, Ms. Dailey made false and misleading statements to Bar Counsel, including the fabrication of evidence to conceal her rule violations. Had Ms. Dailey been responsive, she may have avoided the most significant rule violations described below, and we may have reached a different conclusion. However, because of the serious misconduct outlined in the findings of the hearing judge, disbarment is the appropriate sanction for Ms. Dailey.

BACKGROUND

A. Procedural Context.

On March 24, 2020, the Attorney Grievance Commission of Maryland (the "Commission") filed a Petition for Disciplinary or Remedial Action ("Petition") with this Court alleging that Ms. Dailey had violated the Maryland Attorneys' Rules of Professional Conduct ("MARPC") and the Maryland Rules. See Md. Rule 19-721.

The Petition concerned Ms. Dailey's representation of and failure to communicate with her client, Geoffrey Wolst, for nearly a year, as well as her misrepresentations to Bar Counsel and failure to comply with discovery requests and the hearing process. Based on this misconduct, the Petition alleged that Ms. Dailey violated Rules: 1.1 (Competence); 1.2 (Scope of Representation and Allocation of Authority Between Client and Attorney); 1.3 (Diligence); 1.4 (Communication); 1.5 (Fees); 1.15 (Safekeeping Property); 1.16 (Declining or Terminating Representation); 8.1 (Bar Admission and Disciplinary Matters); and 8.4 (Misconduct).² The Petition also alleged violations of the following Maryland Rules: 19-403 (Duty to Maintain Account); 19-404 (Trust Account—Required Deposits); and 19-407 (Attorney Trust Account Record-Keeping).

We designated Judge Jeffrey M. Geller (the "hearing judge") of the Circuit Court for Baltimore City by Order dated March 27, 2020, to conduct an evidentiary hearing concerning the alleged violations and to provide findings of fact and recommend conclusions of law. See Md. Rule 19-722(a). Ms. Dailey was personally served with process on April 24, 2020, and filed her Answer on May 11, 2020. Ms. Dailey filed a Writ of Mandamus to this Court requesting a stay of proceedings on July 13, 2020.³ We denied Ms. Dailey's petition for relief in an Order dated July 27, 2020.

On August 4, 2020, the circuit court held a pretrial hearing remotely via Skype. Ms. Dailey failed to appear. The evidentiary hearing was also held remotely via Skype on August 11, 2020. Although Ms. Dailey was sent an email and hard copy of the Scheduling Order, she did not attend the virtual hearing.⁴ The hearing judge's findings of fact were filed in this Court on September 22, 2020. Because of Ms. Dailey's failure to respond to Bar Counsel's request for admissions of facts within 30 days as described infra , the hearing judge deemed the requests admitted pursuant to Md. Rule 2-424. Bar Counsel filed a recommendation for sanction with this Court on October 6, 2020. Ms. Dailey filed exceptions to the hearing judge's findings of fact and conclusions of law on October 7, 2020.

This Court heard oral argument in this matter on January 8, 2021.

B. Factual Findings.

We begin by summarizing the hearing judge's factual findings. Ms. Dailey was admitted to the Maryland Bar on December 13, 1994. Since then, Ms. Dailey has maintained an office for the practice of law in the City of Baltimore, primarily providing low-cost services to indigent clients. Ms. Dailey's clients were often referred to her by the Maryland Volunteer Lawyers Service or the Civil Justice Network.

1. Representation of Geoffrey Wolst.

On July 1, 2017, Norma J. Wolst—a resident of Baltimore City—died intestate. Ms. Wolst was survived by her children, Geoffrey Wolst and Norva Countess. Mr. Wolst was referred to Ms. Dailey in early July 2017 by the Civil Justice Network to seek legal advice concerning the administration of his mother's estate (the "estate"). After initially speaking via telephone, Mr. Wolst and Ms. Dailey met in person, on July 18, 2017. At that meeting, Mr. Wolst retained Ms. Dailey to represent him in his capacity as the personal representative of the estate, and Mr. Wolst signed a legal representation agreement which required a retainer payment of $1,500 to be billed against at an hourly rate of $150.

On August 22, 2017, Mr. Wolst paid Ms. Dailey the $1,500 retainer. On the receipt given to Mr. Wolst, Ms. Dailey noted that it was for the "[e]state filing fee and legal fees." Ms. Dailey deposited the funds into her operating account instead of into an attorney trust account. The hearing judge found that Ms. Dailey failed to maintain an attorney trust account for her solo practice, and that Ms. Dailey did not obtain Mr. Wolst's informed consent to deposit this payment into an operating account that was not an attorney trust account.

Ms. Dailey prepared the appropriate estate documents, including a Regular Estate Petition for Administration, Schedule A ("Estimated Value of Estate and Unsecured Debts"), and List of Interested Persons. Mr. Wolst signed these documents on August 22, 2017. However, Ms. Dailey never filed the documents with the Office of the Register of Wills of Baltimore City. Ms. Dailey informed Mr. Wolst that he was required to post a bond, the amount of which would be based on the value of the estate. Ms. Dailey also informed Mr. Wolst that this requirement could be waived if Ms. Countess consented to Mr. Wolst's appointment as personal representative of their mother's estate. Mr. Wolst unsuccessfully tried to obtain Ms. Countess' consent in September 2017. On September 19, 2017, Ms. Dailey informed her client that a $200,000 bond would be necessary, which could be purchased for $1,275.

On November 9, 2017, Mr. Wolst paid Ms. Dailey $1,275 in cash for the bond purchase. The receipt given to Mr. Wolst stated that the payment was the "fee for bond." Ms. Dailey did not place the $1,275 into an attorney trust account, but instead deposited the funds into her operating account. Ms. Dailey never received Mr. Wolst's informed consent to place these funds into an operating account that was not an attorney trust account. Further, Ms. Dailey never purchased a bond with the funds she received and instead misappropriated the funds for her own use.

Ms. Dailey had Mr. Wolst sign an updated Schedule A on November 9, 2017. Ms. Dailey never filed the updated document with the Register of Wills for Baltimore City. From December 2017 to January 2018, Mr. Wolst reached out to Ms. Dailey requesting updates on the status of his case. Ms. Dailey did not return his calls until January 2, 2018. After the January 2018 call, Ms. Dailey did not communicate with Mr. Wolst again for nearly twelve months. During this time, Mr. Wolst was unaware of the fact that Ms. Dailey had failed to file any of the estate documents, failed to procure a bond, and failed to properly maintain the funds he had given her. Despite her lack of communication and failure to diligently advance Mr. Wolst's case, Ms. Dailey did not return any portion of the $1,500 retainer for legal fees, or the expense for the $1,275 bond.

2. Bar Counsel's Investigation.

Mr. Wolst filed a complaint with the Attorney Grievance Commission on November 18, 2018. Mr. Wolst explained to Bar Counsel that he was unaware of the status of his case, as he had not heard from Ms. Dailey in nearly a year. Bar Counsel sent Ms. Dailey a copy of the complaint on December 4, 2018. After receiving this complaint, Ms. Dailey contacted Mr. Wolst by telephone on December 10, 2018.

Bar Counsel requested that Ms. Dailey provide a written response to the allegations in the complaint. In her January 4, 2019, response, Ms. Dailey misrepresented to Bar Counsel that she had been attempting to "move the case along" but Mr. Wolst had failed to return her calls. According to phone records submitted by Ms. Dailey, she had placed only one call to her client on January 2, 2018. Moreover, the hearing judge found that Ms. Dailey's claim that Mr. Wolst had failed to return her alleged calls was knowingly and intentionally false and was made to conceal the fact that she had abandoned her representation of Mr. Wolst.

Ms....