Attorney Grievance v. Byrd

• Decision Date: 14 April 2009
• Docket Number: Misc. Docket AG No. 69.,September Term, 2007.
• Citation: 408 Md. 449,970 A.2d 870
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ralph T. BYRD.
• Court: Court of Special Appeals of Maryland

970 A.2d 870

408 Md. 449

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ralph T. BYRD.

Misc. Docket AG No. 69.

September Term, 2007.

Court of Appeals of Maryland.

April 14, 2009.

Reconsideration Denied June 5, 2009.

Fletcher P. Thompson, Assistant Bar Counsel (Melvin Hirshman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

Melvin G. Bergman, Greenbelt, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.

BARBERA, J.

The Attorney Grievance Commission of Maryland ("Petitioner"), acting through Bar Counsel and pursuant to Maryland Rule 16-751(a),¹ filed a Petition for Disciplinary or Remedial Action against Ralph T. Byrd, Respondent. Bar Counsel charged Respondent with violating the following Maryland Rules of Professional Conduct ("MRPC"): 1.1 (Competence),² 1.3 (Diligence),³ 1.4(a)(2) (Communication),⁴ 3.1 (Meritorious Claims and Contentions),⁵ 3.2 (Expediting Litigation),⁶ 3.3(a)(1) (Candor Toward the Tribunal),⁷ 3.4(c) and (d) (Fairness to Opposing Party and Counsel),⁸ and 8.4(b), (c) and (d) (Misconduct).⁹

Pursuant to Maryland Rule 16-752(a),¹⁰ we referred the petition to the Honorable Ronald B. Rubin of the Circuit Court for Montgomery County, for an evidentiary hearing and to make findings of fact and conclusions of law. Judge Rubin held a two-day hearing commencing on July 31, 2008. On August 26, 2008, he issued a Memorandum Opinion, pursuant to Maryland Rule 16-757(c).¹¹ Judge Rubin found by clear and convincing evidence that Respondent violated MRPC 1.1, 1.3, 1.4(a)(2), 3.1, 3.3(a)(1), 3.4(c), and 8.4(b)-(d).

The Complaints

The charged violations were brought under three complaints. The first of them ("the Janis complaint"), was filed by Gary M. Janis, Esquire, an attorney with Peroutka & Peroutka, P.A., and relates to Respondent's involvement in a number of the firm's collection cases. The other two complaints, filed by Bar Counsel, stem from two unrelated matters: Respondent's involvement in another case with the Peroutka firm, the Ziegler case, and Respondent's conduct during a bankruptcy proceeding ("the bankruptcy complaint").

Judge Rubin found that the charges related to the complaint concerning the Ziegler case were not proven by clear and convincing evidence. Petitioner has not filed exceptions to those findings, so we shall not further address those charges. Judge Rubin's findings of fact and conclusions of law regarding the remainder of the charges follow.

Findings of Fact and Conclusions of Law

By way of background, Judge Rubin found that Respondent was admitted to the bar of the State of New York in 1980, and to the bar of the State of Maryland in 1992. He served from 1986 to 1992 as an Associate General Counsel in the Office of the Comptroller for the State of New York. Then, in 1992, Respondent began a sole practice in Maryland, focusing initially on federal civil rights claims, employment discrimination claims, and tort actions.

In 1998, Respondent began to shift his practice to debtors' rights under state law. In that regard, Judge Rubin wrote:

Byrd elected to pursue this area because he was getting sued by creditors and, as a result of defending his own case, learned defenses available in credit card cases. In particular, Byrd began to develop defenses under the provisions of the Maryland Commercial Code regarding retail credit accounts. Md. Commercial Law Article §§ 12-501, et. seq. (2005 Rep. Vol.). See Jackson v. Pasadena Receivables, Inc., 398 Md. 611 (2007).

Judge Rubin's complaint-specific findings of fact and conclusions of law followed. We quote those findings and conclusions, and include the numbered paragraphs associated with them for ease of reference later in this opinion. Judge Rubin began with the Janis complaint:

5. On September 28, 2006, Gary M. Janis, an attorney with Peroutka & Peroutka, P.A. (the "Peroutka firm") filed a complaint against Byrd. The Peroutka firm specializes in filing collection cases, mostly on behalf of credit card companies or firms that have purchased debt from credit card companies, in the District Courts of Maryland. The complaint alleged numerous acts of misconduct by Byrd arising out of Byrd's representation of debtor defendants in District Court cases.

6. Byrd testified at the hearing that, over time, he represented the majority of debtors sued by the Peroutka firm and became "quite a thorn in their side." With respect to the matters discussed below, Byrd claimed that he first learned of the problems when contacted by Bar Counsel and that the Peroutka firm never complained to him directly. The court finds Byrd to be credible in this regard.

7. Byrd entered his appearance in the Mebane collection case in the District Court for Prince George's County on March 10, 2006. Trial was set for March 29, 2006. On March 10, 200[6], Byrd moved for a continuance due to a scheduling conflict. The continuance was not granted and, when neither Byrd nor the defendant appeared for trial, the District Court entered a default judgment. The District Court vacated the default judgment on May 24, 200[6]. Byrd testified at the hearing that he simply "assumed" that a continuance would be granted because he had a conflict.

8. On June 23, 2006, in the Hooker case pending in the District Court for Prince George's County, Byrd filed a motion to reconsider the denial of a motion quashing a subpoena. The hearing on the motion was scheduled for August 18, 2006. Byrd did not appear for the hearing. Opposing counsel appeared and the motion was denied. Byrd's explanation, which this court does not find to be credible, is that he believed that the hearing had been cancelled.

9. Byrd appeared in the Honsberger case in the District Court for Baltimore County on May 3, 2006, and both sides requested a continuance. The trial was postponed until July 6, 2006. Byrd appeared for trial on July 6, 2006 and requested another continuance, stating that he had been unable to reach his client. Byrd told the District Court that the last time he had spoken with his client the client had said that she was going out of town for the 4th of July holiday. The court denied the motion, the case was heard, and judgment was entered against Byrd's client. Byrd later filed a motion for a new trial, accompanied by an affidavit from the client, in which the client stated that Byrd had not informed her of the July 2006 trial date. The new trial motion was denied. The court finds that Byrd, contrary to his representation to the District Court, did not inform his client of the July 2006 trial date.

10. On June 12, 2006, Byrd filed a motion to continue the Respass case, which was set for trial in the District Court for Prince George's County on July 16, 2006. The case was continued on June 15, 2006, but Byrd did not serve counsel for the plaintiff with a copy of his continuance motion. On August 4, 2006, the court in the Respass case ordered Byrd to file supplemental interrogatory answers by August 22, 2006. The certificate of service signed by Byrd stated that the supplemental answers were mailed on August 22, 2006. However, the postmark on the envelope disclosed that they were not mailed until August 26, 2006. The court finds that Byrd did not mail the supplemental interrogatory answers until April 25, 2006, at the earliest.

11. Byrd filed an appeal in the Harvey case in Prince George's County. A trial de novo was set for April 14, 2006. Byrd withdrew the appeal and purported to mail the notice on April 10, 2006. Counsel for the plaintiff did not receive Byrd's notice before the date set for the appeal and appeared at the courthouse. When she returned to her office, Byrd's notice was on her desk, with a United States postmark of April 13, 2006. The court finds that Byrd did not mail the notice withdrawing the appeal on April 10, 2006, as he represented in his certificate of service.

12. In the Sy case in the District Court for Prince George's County, the court granted the plaintiff's motion to compel complete interrogatory answers and ordered Byrd to file complete answers. Byrd did not do so and, on May 10, 2006, the plaintiff moved for sanctions. On May 26, 2006, Byrd provided interrogatory answers, but they were not under oath, as required by Maryland Rule 3-421(d).

13. In the Faulkner case in the District Court for Prince George's County, the plaintiff served interrogatories on February 21, 2006. Byrd did not respond, and the plaintiff moved to compel on March 13, 2006. The court ordered Byrd to file answers by April 15, 2006. When Byrd did not comply with the court's order, the plaintiff moved for sanctions on April 18, 2006. On April 20, 2006, Byrd filed interrogatory answers that were not under oath. In open court on April 21, 2006, Byrd agreed to provide supplemental answers by May 5, 2006. On May 13, 2006, Byrd mailed interrogatory answers to the plaintiff that were not under oath. At the hearing before this court, Byrd defended his conduct in the Sy and Faulkner cases by claiming that the Peroutka firm was "playing games" with discovery. The court finds Byrd's explanation for his failure to follow the Maryland Rules not to be credible.

14. In the Kaplan case in the District Court for Montgomery County, Byrd entered his appearance after judgment had been entered against the client. On September 15, 2006, Byrd moved to vacate the judgment, which was denied. On October 10, 2006, Byrd moved for reconsideration of the motion to vacate, which was also denied. Byrd then filed an appeal on November 29, 2006. The appeal was dismissed on December 1, 2006, as untimely.

Judge Rubin came to the following conclusions of law regarding the Janis complaint:

15. The court is mindful of the hectic pace of practice before the District Courts and that, as a practical matter, honest mistakes are made, perhaps even with some regularity. Nevertheless, in the Mebane case, Byrd violated Rules 1.1 and 1.3 when, without an...