Attorney Grievance v. Ayres-Fountain

Decision Date22 December 2003
Docket NumberNo. 11,11
Citation838 A.2d 1238,379 Md. 44
CourtMaryland Court of Appeals
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Caroline P. AYRES-FOUNTAIN.

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

Kenneth W. Ravenell, Baltimore, for respondent.

Argued before BELL, C.J., ELDRIDGE,1 RAKER, WILNER, CATHELL, HARRELL, and BATTAGLIA, JJ.

BELL, C.J.

The Supreme Court of Delaware, in an unreported, per curiam opinion, dated July 8, 2002, "ha[ving] considered this matter seriously ... [and] find[ing] the Board [on Professional Responsibility]'s recommendation... to be appropriate in light of the presence of the following aggravating factors: a substantial prior disciplinary record; a pattern of misconduct; multiple violations; and engaging in deceptive practices during the disciplinary process," accepted that recommendation and the Board's report supporting the recommendation and ordered Caroline Patricia Ayres-Fountain, the respondent, a member of the Delaware, Maryland, District of Columbia and Virginia Bars, suspended from the practice of law in Delaware for a period of three years, from the date of the court's opinion.

The Board's Report and Recommendation,2 attached to the court's opinion, explicated the charges and the reasons for the recommendation, as follows:

"I. ADMITTED VIOLATIONS AS SET FORTH IN THE STIPULATION

"A. Board Case No. 12

"For the years 1996-2000, Respondent admits that statements she made on her Certificates of Compliance filed with the Delaware Supreme Court falsely represented that Respondent had timely filed and paid all federal, state and local payroll, gross receipts and income taxes. Respondent, however, had not timely filed and paid various taxes at the time the Certificates of Compliance were filed. The specific tax filings and unpaid or late taxes are set forth in paragraphs 5-11 of the Stipulation. They include federal income taxes, unemployment tax assessments, City of Wilmington net profit taxes and federal employment taxes. For the four year period from 1996-2000, the total amount of taxes that were not timely paid is approximately $82,000. At the hearing, the Respondent testified that she has now made all the necessary tax filings and is in the process of negotiating payment plans with respect to any taxes still owed....3

"In 2001, Respondent filed a Certificate of Compliance in which she acknowledged for the first time that timely filing and payment of taxes had not been made. Stipulation 1J19. The 2001 Certificate of Compliance did not, however, disclose that on March 9, 2000, the Division of Unemployment filed a Certificate of Employer's Indebtedness with the Superior Court. Id. Thus, the 2001 Certificate was also inaccurate.

"In addition, during the course of her dealings with the ODC in connection with a private admonition issued on October 11, 2000, Respondent concealed her failure to file and/or pay various city, state and federal taxes from the ODC and its auditor." Tr. 15-17.

Respondent admits that this concealment was wrong and the result of "[a] bad judgment and mistakes." Id. at 17. In trying to explain why she failed to disclose this information. Respondent testified:

"I guess for a long time I wanted everybody to think everything was alright. And that I didn't have it together. So I didn't tell her how bad it was."

"As a result of the foregoing, Respondent admits to violations of the following Rules of Professional Conduct:

Rule 1.15(b) (failure promptly to deliver funds to third parties that they are entitled to receive);Rule 8.1(a) (providing deceptive or misleading information to the ODC or its agents);

Rule 8.4(c) (conduct involving deceit); and

Rule 8.4(d) (conduct prejudicial to the administration of justice).

In addition, Respondent admits to having violated Rule 7(c) of the Rules of Disciplinary Procedure when she failed to provide documentation necessary for an audit performed in 2001 as a condition to the private admonition issued in October 2001.

"B. Board Case No. 17b

"Respondent represented Calvin A. Johnson in a criminal matter involving a motion for post conviction relief. Mr. Johnson paid $2,000 which Respondent deposited into her operating account before the fees were earned. As set forth in paragraphs 42-62 of the Stipulation, Respondent did not promptly file the motion for post conviction relief nor did she keep her client fully and correctly informed. The motion was eventually filed and denied. Respondent did not, however, file a timely notice of appeal. After Mr. Johnson filed a pro se notice of appeal, the Supreme Court directed the Respondent to file a notice of appeal and then to file a notice of withdrawal. The Supreme Court subsequently granted Respondent's motion to withdraw on May 24, 2001. In connection with the Johnson representation, Respondent admits to violations of the following Rules of Professional Conduct:

Rule 1.1 (failure to provide competent representation);
Rule 1.3 (failure to act with reasonable diligence and promptness);
Rule 1.4(a) (failure to keep client reasonably informed and to comply promptly with reasonable requests for information);
Rule 1.5(f) (failure to hold unearned fees in trust account and to provide written statement upon withdrawal of funds);
Rule 1.15(a) (failure to hold client property separate from attorney's property);
Rule 1.16(d) (failure to take steps necessary to protect clients' interest); and
Rule 8.4(c) (deceit or misrepresentation).

"C. Board Case No. 38

"Respondent represented Rodney Nesmith in connection with a civil matter. As set forth in paragraphs 81-93 of the Stipulation, the representation began on or around May 20, 1999, although a draft complaint was not sent to Mr. Nesmith until June 23, 2000. The complaint was not filed in federal District Court until May 24, 2001. Thereafter, Respondent moved to withdraw as counsel which motion was granted. In connection with the Nesmith representation. Respondent admits to the following violation of the Rules of Professional Conduct:

Rule 1.3 (failure to act with reasonable diligence and promptness)[.]

"D. Board Case No. 39

"Respondent represented Daniel Paskins in a criminal matter involving a motion for post conviction relief. As set forth in paragraphs 97-104 of the Stipulation, Respondent was retained in October 1998. The motion for post conviction relief was filed on November 17, 2000. Thereafter, the Superior Court denied the motion as procedurally barred. The Superior Court stated that the filing of the motion bordered on being `frivolous.' In connection with the Paskins representation, Respondent admits to a violation of the following Rules of Professional Conduct:

Rule 1.3 (failure to act with reasonable diligence and promptness)[.]

"E. Board Case No. 55

"Respondent represented Mr. and Mrs. Silvious in a civil matter as set forth in paragraphs 108-124 of the Stipulation. Respondent failed to comply with a stipulated briefing schedule issued by the Superior Court, failed to appear for a hearing and then sought to withdraw as counsel. In connection with the Silvious' representation, Respondent admits to violations of the following Rules of Professional Conduct:

Rule 1.3 (failure to act with reasonable diligence and promptness); and

Rule 1.16(d) (failure to protect clients' interests on withdrawal of representation)[.]

"II. THE APRIL 10, 2002 HEARING

"The Respondent testified at the Panel hearing. She was admitted to the Delaware bar in 1986. Tr. 14. She is also admitted in Maryland, Virginia and the District of Columbia. Id. As noted above, Respondent explained her behavior as being a result of bad judgments and mistakes. During the course of her testimony, Respondent demonstrated embarrassment, remorse and an understanding of the wrongfulness of her acts.4

"With respect to her current legal practice, Respondent testified that she is in the process of winding down her solo practice. Id. at 20-21. At the time of the hearing, she had two matters in which substitute counsel will be obtained if necessary. Id. Respondent is currently serving as conflicts counsel for the public defender in Maryland.

"III. RECOMMENDED SANCTION

"The parties have proposed a three year suspension from practice sanction and have agreed on the applicable aggravating and mitigating factors. Stipulation at p. 25. The aggravating factors are: Respondent's prior disciplinary record including a private admonition in 2000 for violations of Rules 1.5(b), 1.5(f) and 1.15(a) [ABA Standards for Imposing Lawyer Sanctions (`Standards')] § 9.22(a)J; a pattern of misconduct [Standards § 9.22(c)]; multiple violations [Standards § 9.22(d)]; and engaging in deceptive practices during the disciplinary process [Standards § 9.22(f)]. The mitigating factor is the Respondent's acknowledgement of the wrongfulness of her conduct by admitting to 19 counts of violations of the Rules of Professional Conduct and the Procedural Rules.

"The Panel accepts the facts to which the parties have stipulated in the Stipulation and agrees that a three year suspension is appropriate under the circumstances. A three year suspension is consistent with sanctions imposed in previous cases involving similar violations. For example, in In re Roger P. Sanders, 498 A.2d 148 (Del.1985), a three year suspension was imposed on an attorney who willfully failed to file state income tax returns for three years and failed to make state income tax payments for two years. Although mitigating factors were present, including the attorney's good record of professionalism and cooperation with the Board of Professional Responsibility's investigation, the Court concluded that a period of suspension was necessary because the attorney's willful failure to file his tax returns was conduct involving moral turpitude. Id. at 150.

"A similar sanction was ordered in In the Matter of...

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