Attorney Grievance Commission v. Harris

• Decision Date: 06 November 2002
• Docket Number: Misc. Subtitle AG No. 24
• Citation: 810 A.2d 457,371 Md. 510
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Alan Edgar HARRIS.
• Court: Maryland Court of Appeals

810 A.2d 457

371 Md. 510

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Alan Edgar HARRIS.

Misc. (Subtitle AG) No. 24, Sept. Term, 2001.

Court of Appeals of Maryland.

November 6, 2002.

Melvin Hirshman, Bar Counsel and Glenn M. Grossman, Deputy Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

Benjamin Lipsitz, Baltimore, for respondent.

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

On September 24, 2001, the Attorney Grievance Commission of Maryland, petitioner, by Melvin Hirshman, Bar Counsel, and Glenn M. Grossman, Deputy Bar Counsel, filed¹ a petition for disciplinary action against Alan Edgar Harris, respondent, for multiple violations of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that respondent, based on his representations of Emily Lewis and Preston Lawrence Henderson, had violated MRPC 1.1, 1.3, 1.4(a) and (b), 1.5(a), (b) and (c), 1.7(b) and (c), 1.8(a) and (j), 1.9(a) and (b), 3.2, and 8.4(a), (c) and (d).²

On September 27, 2001, pursuant to Maryland Rule 16-752,³ this Court transmitted the matter to Judge Marcella A. Holland of the Circuit Court for Baltimore City to conduct a hearing and to make findings of fact and conclusions of law.⁴

On March 1 and 4, 2002, an evidentiary hearing was held before the hearing judge. On June 17, 2002, Judge Holland issued her Memorandum of Findings of Fact and Conclusions of Law and found by clear and convincing evidence that respondent violated MRPC 1.1, 1.3, 1.4(a) and (b), 3.2 and 8.4(a) in the Lewis matter and MRPC 1.5, 1.7, 1.8(a) and (j), and 8.4(a) in the Henderson matter. The hearing judge further concluded that respondent did not violate MRPC 8.4(d) in the Lewis matter and did not violate MRPC 1.9 and 8.4(c) and (d) in the Henderson matter. The record was then transferred from the hearing judge to our Court for oral argument. Both petitioner and respondent, pursuant to former Maryland Rule 16-711(b)(2),⁵ filed with this Court exceptions to the hearing judge's Memorandum of Findings of Facts and Conclusions of Law.⁶

I. Facts

Respondent was admitted to the Bar of Maryland on June 10, 1960 and maintains his practice of law in his office located in Baltimore City. The Petition for Disciplinary Action filed in this case was based on two complaints, BC Docket No. 2000-120-4-2, Complaint of Emily Lewis and BC Docket No. 2000-282-4-2, Complaint of Preston Lawrence Henderson. Judge Holland's Findings of Fact and Conclusions of Law⁷ are as follows:

"The testimony offered at the hearing together with the Exhibits received established by clear and convincing evidence the following facts pertinent to the Petition.

BACKGROUND FACTS

"Respondent is an attorney licensed to practice law in the State of Maryland since 1960. He is a solo practitioner with his principal office located at 110 Saint Paul Street, Baltimore, Maryland 21201. Respondent has represented between fifteen and twenty thousand clients in automobile negligence cases.

"Respondent was previously sanctioned for violation of the Maryland Rules of Professional Conduct. Respondent has also previously appeared before this court on January 25, 2001, for a hearing on a Petition for Disciplinary Action filed by the Attorney Grievance Commission. As a result of that hearing, Respondent was found to have violated Maryland Rules of Professional Conduct: 1.3, 1.4(a), 1.4(b), 1.16(a)(2) and 3.2.

"This Petition raises claims of misconduct by Respondent regarding his representation of two former clients, Emily Lewis and Preston Lawrence Henderson. Respondent represented Emily Lewis in the case of Lewis, et al. v. Mihialovici, et al; filed in the District Court of Maryland for Baltimore City on February 7, 1992, case number 470592. Respondent represented Preston Henderson in the case of State Farm Mutual v. Preston Henderson, filed in the Circuit Court of Maryland for Baltimore City on November 27, 1996, case number 24-C-96-204052 and Henderson v. Ashley Lane Designs, Inc., et al., also filed in the Circuit Court of Maryland for Baltimore City on January 20, 1999, case number 24-C-99-000254.

FACTS RELEVANT TO LEWIS, et al. V. MIHIALOVICI, et al.

"Emily Lewis, (hereinafter `Ms. Lewis'), retained the Respondent to recover damages for injuries sustained by her minor son, Michael Lewis (hereinafter, `Michael'), as a result of his being struck by a taxicab on or about September 12, 1989. Also on this date, Ms. Lewis signed a retainer agreement provided by Respondent. The Respondent filed suit on behalf of Michael against the driver and the taxicab company on February 7, 1992, in the District Court of Maryland for Baltimore City, Lewis, et. Al. v. Mihialovici, et al., case number 470592.

"Respondent was initially unable to serve the taxicab company or the driver. The driver, John R. Mihialovici was served with process on or about March 4, 1995. The taxicab company was never served.

"In a letter dated June 18, 1993, Respondent notified Ms. Lewis that the trial in this case was scheduled for September 3, 1993. Also in this letter, Respondent explained that he had not served the defendant and if he could not serve the defendant before September 3, the trial would be rescheduled. Although Ms. Lewis and Michael Lewis did appear in court on September 3, Respondent did not.

"The trial was rescheduled for April 20, 1995. Respondent did not appear on this day. The trial was rescheduled again for July 13, 1995. On July 13, neither the Lewis[ ] [family] nor Respondent appeared. As a result, the case was dismissed by Judge Gale R. Caplan. On August 4, 1995, the Respondent filed a Motion to Vacate the Order of Dismissal. On August 15, 1995, that Motion was denied by Judge Alan M. Resnick because the Respondent failed to sign the Motion.

"On September 25, 1995, the Respondent filed another Motion to Vacate the Order of Dismissal and that Motion was denied by Judge Gale R. Caplan on October 6, 1995. On February 25, 1997, the case against the taxicab company was dismissed pursuant to Maryland Rule 3-507 [for lack of prosecution].

"Respondent alleged that Michael Lewis discharged him in September of 1995. He also alleged that Michael Lewis threatened to sue him. Respondent suggested that Michael hire another attorney. Respondent never withdrew his appearance nor did he communicate to the Lewis[] [family] that he was no longer willing to represent them.

FACTS RELEVANT TO STATE FARM MUTUAL v. PRESTON HENDERSON & HENDERSON v. ASHLEY LAYNE DESIGNS, INC. et al.

"The Respondent represented Mr. Henderson in connection with a Chapter 7 bankruptcy case in or about 1995 to 1996. Respondent has known Mr. Henderson and members of his family for thirty-five to forty years.

"In or about August 1996, Mr. Henderson lived at 2240 Keyworth Avenue in Baltimore City and while he resided there, that property was subject to foreclosure. Respondent purchased the property at a foreclosure sale for $17,000.00 and told Mr. Henderson that he would allow him to remain at the property.

"There was no written agreement between Mr. Henderson and Respondent regarding Mr. Henderson's repurchase of the property. There was also no written agreement regarding Mr. Henderson's obligations with respect to rent, taxes or other expenses related to the property.

"In 1996, Mr. Henderson was involved in an automobile accident and was sued for damages. The Respondent represented Mr. Henderson in the resulting lawsuit, i.e. State Farm Mutual v. Preston Henderson. A judgment in favor of State Farm Mutual for approximately $11,935.00 was entered on or about September 3, 1997.

"On September 4, 1997, Respondent filed suit against Mr. Henderson in the District Court of Maryland for Baltimore City seeking back rent. On September 11, 1997, a default judgment was entered against Mr. Henderson. Respondent was awarded a judgment in the amount of $7,200.00. On or about September 15, 1997, Respondent filed a Writ of Garnishment of Wages and Mr. Henderson's wages were later garnished.

"Sometime in 1997, while employed by Ashley Layne Designs, Inc. as a window treatment designer, Mr. Henderson sought Respondent's advice concerning sexual harassment at his place of employment. Mr. Henderson continued his employment with Ashley Layne Designs, Inc. until sometime in March of 1998. Mr. Henderson was discharged at that time and retained Respondent in connection with his claim for unemployment compensation. He also retained Respondent to represent him on his claims of sexual harassment and abusive discharge against his former employer.

"On January 20, 1999, Respondent filed suit against Ashley Layne Designs, Inc. for sexual harassment and for abusive discharge in the Circuit Court for Baltimore City, case number 24-C-99-000254. In April of 1999, after negotiation between the parties, an[ ] agreement was reached. The parties signed a confidential settlement and general release. As part of the settlement, Mr. Henderson was awarded $11,000.00. The Respondent retained the entire $11,000 as his fee for his work in the Ashley Layne Designs case.

CONCLUSIONS OF LAW REGARDING EMILY AND MICHAEL LEWIS

"With respect to Respondent's representation in the case of Lewis, et al. V. Mihialovici, et al., Petitioner alleges that Respondent violated the Maryland Rules of Professional Conduct, including rules: 1.1, 1.3, 1.4, 3.2 and 8.4. This Court finds by clear and convincing evidence that the Respondent, Alan Edgar Harris, has violated the Maryland Rules of Professional Conduct, specifically:

1. Rule 1.1 by failing to competently represent the Lewis family.

2. Rule 1.3 by failing to serve all of the defendants, failing to appear for scheduled trial dates, and failing to cure self-imposed defects in the Lewis' case.

3. Rule 1.4(a) by failing to keep the Lewis family reasonably informed of the status of their case.

4. Rule 1.4(b) by failing to explain to Emily Lewis the effect that an...