Attorney Grievance Commission v. Santos

• Decision Date: 19 July 2002
• Docket Number: Misc. AG No. 31 Sept. Term 2001.
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mario C. SANTOS.
• Court: Maryland Court of Appeals

803 A.2d 505

370 Md. 77

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mario C. SANTOS.

Misc. AG No. .

Court of Appeals of Maryland.

July 19, 2002.

Melvin Hirshman, Bar Counsel and James P. Botluk, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland. Mario C. Santos, Glen Burnie, for respondent.

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

BELL, C.J.

In this disciplinary action, prompted by complaints of clients for whom Mario C. Santos, the respondent, undertook representation, and a referral from a Bankruptcy Judge, the Attorney Grievance Commission of Maryland, the petitioner, acting through Bar Counsel, in turn acting at the direction of the Review Board, see Maryland Rule 16-709,¹ filed a Petition For Disciplinary Action against the respondent, charging the respondent with multiple violations of various of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. Based on the complaint of the clients and of Bar Counsel, the respondent was alleged to have violated Rules 1.1 Competence,² 1.3, Diligence,³ 1.4, Communication,⁴ 1.15, Safekeeping Property,⁵ 1.16 Declining or Terminating Representation,⁶ 8.1(b), Bar Admission and Disciplinary Matters,⁷ 8.4(c) and (d), Misconduct,⁸ and 16-604, Trust Account—Required Deposits,⁹

We initially referred the case to the Honorable Pamela L. North, of the Circuit Court for Anne Arundel County, but subsequently transferred it to the Honorable William D. Quarles, of the Circuit Court Baltimore City, for hearing. Rule 16-709(b).¹⁰ At the hearing, each of the former clients, Ms. Michelle A. Hipp, Mr. Moses Jackson, Jr., Ms. Eula Lee Hudnall, Mr. Dexter L. Keane, and Ms. Kathleen Sheppard, whose matters the respondent is alleged to have neglected and abandoned, testified, after which Judge Quarles made findings of fact and drew conclusions of law. See 16-711(a).¹¹ He concluded from the facts found that the respondent committed each of the rule violations charged, except Rule 8.4(c).¹²

In the case of Ms. Sheppard, the respondent, the hearing judge found, was retained to handle a bankruptcy matter. Although the respondent filed the petition, he did not appear at the hearing on the creditor's motion to lift the bankruptcy stay, with the result that the court denied confirmation of Ms. Sheppard's plan. The court also referred the respondent to Bar Counsel. The fee she paid was refunded to Ms. Sheppard.

The respondent represented Ms. Hipp in divorce and bankruptcy matters, beginning in November 1999, for which he was paid a total of $1,900, $1,725 of which Ms. Hipp borrowed from her father. The respondent filed neither the bankruptcy petition, which he had Ms. Hipp complete, nor divorce proceedings. Not only did the respondent fail to return Ms. Hipp's numerous phone calls, he did not return any portion of the fee that she paid.

Mr. Jackson retained the respondent, in November 1999, to obtain a name change for his stepson, paying him a total of $550.00. The respondent filed the petition for change of name, but did not complete the matter, offering excuses when asked as to why it had not been concluded. When Mr. Jackson was informed by court personnel that, although the petition had been filed, it would have to be refiled if not acted upon within a year, he sought, without success, to contact the respondent. Mr. Jackson ultimately had to pay another attorney another fee, $500.00, to re-file the petition and complete the name change. The respondent did not return any of the fee that he was paid.

On August 31, 1999, Ms. Hudnall retained the respondent to represent her in a bankruptcy matter, paying him $675.00. Although he obtained the necessary information to file the bankruptcy petition, he did not do so and, as a result, she continued to receive calls from her creditors and was sued by one of them. The respondent stopped returning Ms. Hudnall's telephone calls in November 2000. Ms. Hudnall was required to retain another attorney to handle the bankruptcy matter, borrowing $700.00 to do so. She has not been repaid any portion of the fee she paid the respondent.

Mr. Keane, a truck driver, retained the respondent on December 6, 1999 to represent him in a drunk driving case. He paid the respondent $750.00 of a $2000.00 fee. Despite assuring Mr. Keane that he would "take care of everything," the respondent failed to appear at a Motor Vehicle Administration hearing and Mr. Keane's license was suspended. Thereafter, Mr. Keane tried unsuccessfully, for three months, to contact the respondent, finally retaining other counsel to represent him. The respondent has not returned any of the fee he was paid.

As indicated, the hearing judge concluded that the respondent violated the various rules charged. Specifically, he determined that he violated Rule 1.1 by incompetently representing each of his clients by not demonstrating the necessary skill, thoroughness and preparation in the handling of their matters. "[T]he Respondent's procrastination prejudiced the interests of [Hipp, Hudnall and Jackson] by denying relief to which each was entitled," in violation of Rule 1.3. From the respondent's failure to communicate with each client about his or her matter, the hearing judge found a violation of Rule 1.4 and from his abandonment of the representation of each of them without providing the requisite notice, a violation of Rule 1.15. The respondent admitted depositing all of the funds he received from clients, including unearned fees and expenses, into his operating account and, thus, the violation of Rules 1.15 and 16-604. Each of the "previously described violations of the rules of professional conduct erode public confidence in the legal profession and are conduct prejudicial to the administration of justice in violation of Rule 8.4(d)," the hearing judge concluded.

In addition, the hearing judge made general findings, as follows (citations omitted):

"The Petitioner's investigator has characterized the Respondent as `forthright, candid and cooperative' during the investigation.... The investigator has observed that Mr. Santos had `been having difficulty operating a solo practice.'... The investigator also concluded that Mr. Santos `needed a more structured environment, he needed more support staff, he needed direct assistance.' ... The Respondent has acknowledged the correctness of the investigator's analysis, `I'm not a great businessman, I can't drum up business, I can't run things, I can't be the boss. But I can be a good trial lawyer, and I am a good trial lawyer.'... All fees received by the Respondent were deposited into his operating account....

"Mr. Santos was unable to explain his neglect of his clients' matters beyond his assertion that he had `generally los[t] track' of matters.... He also described his `dread' of returning his clients' telephone calls. ... His neglect was exacerbated by undiagnosed physical and mental health problems, his mother's health problems, and the dissolution of his sister's marriage. ... His sister's divorce also led to the loss of the Respondent's housing. ...

In recognition of his need for a more structured environment, the Respondent has sought employment with the Public Defender's Office.... That office has extended a job offer to Mr. Santos...."

Neither party filed exceptions to the findings of fact and conclusions of law. Both, however, filed a recommendation for sanctions: the petitioner's urging the respondent's disbarment and the respondent's, a period of suspension of not more than six months and reinstatement upon compliance with certain conditions.

While cognizant that the respondent has no prior disciplinary history, noting that the respondent neglected and essentially abandoned five clients, never returned unearned fees, advanced costs in four of these cases, and failed to hold client funds in a trust account, the petitioner contends that "Respondent's utter neglect and abandonment of his clients' cases demonstrate that he is unfit to practice law." Acknowledging that we have suspended, indefinitely, with the right to apply for reinstatement after a specific period of time, attorneys who have neglected client matters and then failed to refund unearned fees, Attorney Griev. Comm'n v. Brugh, 353 Md. 475, 727 A.2d 913 (1999) (after sixty days); Attorney Griev. Comm'n v. Drew, 341 Md. 139, 669 A.2d 1344 (1996) (after one year); Attorney Griev. Comm'n v. David, 331 Md. 317, 628 A.2d 178 (1993) (after six months), it directs the Court's attention to cases in which disbarment was ordered for misappropriation of client funds by failing to refund unearned fees, Attorney Griev. Comm'n v. Bloom, 306 Md. 609, 510 A.2d 589 (1986); Attorney Griev. Comm'n v. Harper, 300 Md. 193, 477 A.2d 756 (1984), and those in which that sanction was imposed on attorneys who repeatedly neglected client matters. Attorney Griev v. Comm'n v. Montgomery, 318 Md. 154, 567 A.2d 112 (1989),

Attorney Griev. Comm'n v. Howard, 299 Md. 731, 475 A.2d 466 (1984); Attorney Griev. Comm'n v. Pollack, 279 Md. 225, 369 A.2d 61 (1977); Maryland State Bar Ass'n v. Phoebus, 276 Md. 353, 347 A.2d 556 (1975). The petitioner relies most heavily on Attorney Griev. Comm'n v. Wallace, 368 Md. 277, 793 A.2d 535 (2002); Attorney Grievance Comm'n v. Milliken, 348 Md. 486, 704 A.2d 1225 (1998); Attorney Griev. Comm'n v. Manning, 318 Md. 697, 569 A.2d 1250 (1990). None is apposite.

In Manning, there was a prior disciplinary history, the attorney in that case having earlier been suspended for similar conduct. In the other cases, the conduct being sanctioned was much more egregious than the very serious misconduct in this case. In Milliken, we described the attorney's conduct:

"The hearing judge found that Respondent engaged in egregious misconduct that amounted to `fraud, deceit and misrepresentation.' His clients suffered severe detriment. He repeatedly neglected client matters and failed to take steps

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