Attorney Grievance Comm. v. MacDougall

• Decision Date: 13 December 2004
• Docket Number: Misc. Docket AG No. 59 September Term, 2003.
• Citation: 863 A.2d 312,384 Md. 271
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Francis MacDOUGALL.
• Court: Maryland Court of Appeals

863 A.2d 312

384 Md. 271

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Francis MacDOUGALL.

Misc. Docket AG No. .

Court of Appeals of Maryland.

December 13, 2004.

Melvin Hirshman, Bar Counsel, John C. Broderick, Asst. Bar Counsel for Atty. Grievance Com'n, for petitioner.

Francis MacDougall, Towson, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE JJ.

BELL, C.J.

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,¹ filed a Petition For Disciplinary or Remedial Action against Francis MacDougall, the respondent. The petition charged that the respondent violated Rules 1.3, Diligence,² 1.4, Communication,³ 1.5, Fees,⁴ 1.16, Declining or Terminating Representation,⁵ 3.4, Fairness to Opposing Party and Counsel,⁶ 8.1, Bar Admission and Disciplinary Matters,⁷ and 8.4, Misconduct,⁸ of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.⁹

We referred the case, pursuant to Rules 16-752(a),¹⁰ to the Honorable Thomas J. Bollinger, Sr., of the Circuit Court for Baltimore County, for hearing pursuant to Rule 16-757(c).¹¹ Following a hearing, at which the respondent appeared and participated, the hearing court found, on "the evidence presented at that time, as well as the admissions made by the Respondent in his response to the Petition for Disciplinary Action," facts by the clear and convincing standard and drew conclusions of law, as follows.

The respondent, a sole practitioner, was, pursuant to wills he drafted for Theodore and Naomi Egorin, one of three co-personal representatives of their estates, the other two being the surviving child and heir of the decedents, Samuel Mervis Egorin, and Donn Weinberg, Esquire. He was also attorney for each estate, having been retained as such by the personal representatives. Each will, after making specific bequests of personal property to Samuel Egorin and, in the case of Mrs. Egorin, a small cash bequest to her housekeeper, bequeathed the residue of the estate to a testamentary trust. The co-personal representatives of the estates were appointed co-trustees of those trusts. The wills, the estates for which had an estimated net value of $ 150, 000, were admitted to probate in 1999.

The respondent's services for the first two years or so after the estates were opened were generally acceptable to the co-personal representatives. They apparently communicated with respondent on a fairly frequent basis, "to review the estate matters, authorize payments of estate debts, review the estate security portfolio and co-sign those estate checks necessary for the payment of debts." Although, during that period, "[i]t was not uncommon ... for [the respondent] not to answer his phone," he generally returned calls within twenty-four (24) hours and he was prompt in cooperating to arrange meetings of the co-personal representatives, usually held at co-personal representative Weinberg's office.

The respondent was paid, with the approval of the Orphans' Court, counsel fees of $ 10,000, $7500 from the Naomi Egorin estate and $2500 from the Theodore Egorin estate. These fees were in lieu of commissions payable to him as a co-personal representative.¹² "The parties agree that the Respondent comported himself properly insofar as his taking of a fee for his services was done with the approval of the Orphans' Court." Beginning in the second half of 2002, the respondent ceased returning calls from his co-personal representatives in a timely manner and his relationship with them "changed significantly." Indeed, as his response to the Petition for Disciplinary Action and his testimony at the hearing admit, "[h]e failed to return calls from either or both of the co-personal representatives and failed to answer questions relating to his services to the estate and his actions as required as a co-personal representative." Samuel Egorin testified consistently, that the respondent had not communicated with him directly since July 2002, when he delivered to him an insurance policy on which a claim had to be made. While the respondent prepared formal accountings with respect to the estates and filed them with the Register, "he failed to give any informal accounting as to the assets of the estates subject to distribution." Moreover, the efforts of the co-personal representatives to meet with the respondent were frustrated. Another example of the non-communication between the respondent and his co-personal representatives was his failure to explain his decision not to distribute trust funds to Samuel Egorin to defray expenses incurred by his youngest daughter for hospitalization and treatment. Although aware of the request for distribution for that purpose, the respondent did not inform the beneficiary or the other co-personal representative of his decision to refuse the distribution in favor of retaining the money in anticipation of the need to pay future educational expenses, much less explain it to them.

The respondent was informed on two occasions by Bar Counsel, by letters dated December 10, 2002 and January 7, 2003, respectively, that a complaint had been filed against him and, on each occasion, Bar Counsel asked that the respondent respond. In the January letter, which enclosed the December letter, the respondent was advised that failure to respond may be a separate and distinct violation of the Rules of Professional Conduct for violation of Rule 8.1. Although the respondent responded to Bar Counsel's letters, he did not timely respond to either letter, within the fifteen days allowed in the December letter or within the ten days prescribed by the January letter. In his response, by letter dated February 13, 2003, the respondent acknowledged receipt of Bar Counsel's correspondence and, without offering any explanation or excuse, conceded his unresponsiveness. With regard to the allegation that insurance proceeds owed to the Estate of Theodore Egorin had been abandoned to the State, the respondent, while admitting that the application for proceeds had not been filed after death, maintained that the proceeds had not been abandoned, claim for them having been made to Prudential Financial, where the funds had been maintained in the Abandoned Property Office of Prudential Insurance Company, and that the proceeds were expected within two to three weeks. The respondent met with Bar Counsel's investigator. Although admitting to heart problems throughout his life, after reviewing his medical history, the respondent acknowledged that his 1996 heart operation was successful and that he sees his cardiologist only once every three years and has no other health problems. The respondent also does not suffer from alcohol, psychological or physiological problems.

The respondent informed the petitioner's investigator that he had been requested, in writing, by both regular and certified mail, through his co-personal representatives, to turn over all documents relating to the estates to a substitute attorney and that he had refused to do so. The respondent indicated that he would resign as counsel only after the estates were closed. He maintained that he had a right to so proceed, because the decision of the co-personal representatives with regard to the firing of counsel must be unanimous and that, as a personal representative, he was not prepared to vote with the other two. Although it was an option, as the respondent pointed out, no attempt had been made to that point to obtain the respondent's removal through court action.

At the time of the hearing, the respondent was not a trustee under the trusts set up under the Egorin wills and the Fourth and Final Accountings in the Estates of Naomi Egorin and Theodore Egorin had been filed.

The hearing court concluded that the respondent violated four of the seven rule violations charged: Rule 1.3, Rule 1.4(b),¹³ Rule 8.1(b) and 8.4(d). The hearing court characterized the violations it found as "technical," noting that it "finds that the Respondent has not exhibited any dishonest conduct or any interference with the administration of justice." On the other hand, the alleged violation of Rule 3.4, it found, had been abandoned during the disciplinary proceedings and the alleged violations of Rules 1.5 and 1.16 had not been proven by clear and convincing evidence.

As to Rule 1.5, the hearing court explained:

"The amount of the fee that was requested and received by the Respondent was approved by the Orphans' Court of Baltimore County after proper application to that court. This court finds that any inappropriateness of that fee should rest with the Orphans' court of Baltimore County. The Court further finds that the fee approved and received is less than the maximum statutory amount that could have been received by the Respondent had he completed the finalization of the estate[s]."

The chancellor's reasoning as to the asserted violation of Rule 1.16 is related: "any fee to be retained was under the supervision and jurisdiction of the Orphans' Court of Baltimore County. In addition, the court finds that the Respondent complied with the Order of the Orphans' Court and surrendered the files in this matter when so ordered."

As indicated, the respondent does not dispute that he violated Rules 8.1(b) and 8.4(d), and, in fact, admits that he did. As to Rule 1.3, the hearing court concluded that "there was a technical violation," the respondent having failed diligently to pursue the legal matters with which he was entrusted. Rule 1.4 was violated, the hearing court determined, by the respondent's "failure to adequately communicate to his co-trustees regarding the representation of the estate."

The petitioner excepts to the hearing court's failure to find violations of Rules 1.4(a), 1.5(a) and 1.16(d). It maintains, as to the Rule 1.4(a) charge, that the same evidence that justified the finding of a subsection (b) violation also supported...