Attorney Grievance v. Fezell

• Citation: 361 Md. 234,760 A.2d 1108
• Decision Date: 13 October 2000
• Docket Number: Misc. AG No. 34
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Howard J. FEZELL.
• Court: Maryland Court of Appeals

760 A.2d 1108

361 Md. 234

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Howard J. FEZELL.

Misc. AG No. 34, Sept. Term, 1999.

Court of Appeals of Maryland.

October 13, 2000.

Melvin Hirshman, Bar Counsel, for the Attorney Grievance Com'n of Maryland.

Howard Fezell, Frederick, pro se.

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

RAKER, Judge.

The Attorney Grievance Commission, through Bar Counsel, charged Howard J. Fezell, Respondent, with violations of Maryland Rules of Professional Conduct 1.1, Competence;¹ 1.3, Diligence;² 1.4, Communication;³ 3.2, Expediting Litigation;⁴ and 8.1(b), Bar Admission and Disciplinary Matters.⁵ Pursuant to Maryland Rule 16-709(b), we referred the charges to Judge John H. Tisdale of the Circuit Court for Frederick County to conduct a hearing and make findings of fact and proposed conclusions of law.

I.

Pursuant to an order of this Court, Judge Tisdale held an evidentiary hearing on January 12, 2000. Respondent asserted, in a Motion to Dismiss, that, because Rule 8.1 prohibits knowingly failing to respond to a lawful demand for information from a disciplinary authority, any allegation that he violated Rule 8.1 must state that a lawful demand was made. He argued that since Bar Counsel's Petition did not state that a lawful demand was made, only that Respondent failed to respond to requests from the Attorney Grievance Commission, those portions of the Petition relating to a violation of Rule 8.1 should be dismissed. Respondent further argued that the only method open to Bar Counsel to make a lawful demand was to issue a subpoena.

Bar Counsel responded that the subpoena power is intended to allow Bar Counsel to obtain documents from third parties not under the Attorney Grievance Commission's jurisdiction. Moreover, the subpoena power is discretionary, not mandatory, and is therefore not the sole method available to Bar Counsel to request information.

Denying the Motion to Dismiss, Judge Tisdale concluded that the rule empowering Bar Counsel to issue subpoenas was intended primarily to allow Bar Counsel to obtain information from those who are not parties to the case and was not meant to be Bar Counsel's sole method of effecting a lawful demand upon an attorney. Judge Tisdale filed an Opinion and Order setting forth his findings of fact and conclusions of law. He concluded that Respondent had violated Rules 1.3, 1.4, 3.2, and 8.1(b) of the Maryland Rules of Professional Conduct. Judge Tisdale further concluded that Respondent did not violate Rule 1.1. The Opinion and Order reads as follows:

"This matter came before the court pursuant to an order of the Court of Appeals of Maryland. On January 12, 2000, this court conducted a hearing in accordance with Maryland Rule 16-710 regarding a petition filed by the Attorney Grievance Commission (hereinafter the "Commission") concerning Howard J. Fezell (hereinafter the "Respondent"). The court took the matter sub curia.

"The Petition filed by the Commission concerns violations of professional ethics alleged in complaints of two clients of Respondent and his inadequate response to resulting inquiries of Bar Counsel. The Commission alleged violation of Maryland Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 3.2 (Expediting Litigation), and 8.1(b) (Bar Admission and Disciplinary Matters) in the Szarvas matter, along with violation of Rule 8.1(b) in the Weller complaint.

"At the hearing, Respondent acknowledged that he had not done a good job in handling the Szarvas divorce. As for his failure to comply with the Commission's requests for information, Respondent argued that nothing in the Maryland Rules compelled a reply. Respondent claimed that the letters from the Commission regarding the Szarvas and Weller complaints were `requests' for information and, as such, did not qualify as `lawful demands' within the language of Rule 8.1(b). Respondent argued that since the Commission has subpoena power under Maryland Rule 16-704(c), a subpoena must be issued in order to make a `lawful demand.'

"In accordance with Maryland Rule 16-711(a), the following findings of fact have been established by clear and convincing evidence:

FINDINGS OF FACT

"Respondent was admitted to practice law in the State of Maryland on June 21, 1978. Prior to the complaints filed in this matter, Respondent had never been the subject of public discipline.

Complaint of Mary L. Szarvas

"In May 1994, Mary L. Szarvas paid Respondent a fee of $600.00 and retained him to obtain a divorce on the ground of mutual and voluntary separation which commenced November 6, 1993. On May 19, 1994, Respondent filed a complaint for a limited divorce with a copy of the parties' separation agreement attached. Respondent personally served the summons on Mr. Szarvas on June 2, 1994. When Mr. Szarvas did not respond, Respondent obtained an order of default on November 18, 1994.

"On April 26, 1995 and again on June 14, 1995, Respondent filed supplemental complaints for absolute divorce. On each occasion, a copy of the complaint was mailed to Mr. Szarvas, but no summons was issued or served upon the defendant.

"Ms. Szarvas, her sister Linda Main, and Respondent appeared before a standing examiner to have testimony taken on July 7, 1995 pursuant to Rule 2-542. Mr. Szarvas did not appear. On July 21, 1995, Respondent filed the transcript of the testimony with the Circuit Court for Frederick County. However, this testimony was not ripe since it was taken prior to an answer or entry of any order of default regarding the supplemental complaints for absolute divorce.

"On November 15, 1995, Respondent filed a request for order of default which was denied because service had not been effected on the defendant as to the supplemental complaints pursuant to Rule 1-321(b).

"On December 6, 1995, Respondent filed another supplemental complaint for absolute divorce and mailed a copy to Mr. Szarvas. Mr. Szarvas did not respond to the supplemental complaint.

"On April 5, 1996, Respondent filed a supplemental complaint for absolute divorce. A writ of summons was issued. There is no record of service of the summons and supplemental complaint.

"On December 6, 1996, Respondent requested the Clerk of Court to reissue a summons for private service upon the defendant. On December 22, 1996, Mr. Szarvas was served, but he never filed a answer. On June 16, 1997, the court entered an order of default.

"Testimony was taken at Respondent's law office on June 20, 1997 before a standing examiner, and a transcript of the testimony was filed with the court on November 4, 1997. Ms. Szarvas learned from the clerk's office that the June 20, 1997 testimony had become stale since it was not filed within ninety (90) days of the taking of testimony.

"After June 20, 1997, Ms. Szarvas left telephone messages and notes at Respondent's office frequently. He did not reply except to instruct her to attend and give testimony before an examiner on two later occasions.

"The Respondent instructed Ms. Szarvas to come to his office to give testimony on January 30, 1998 at 4:00 p.m. Ms. Szarvas and Ms. Main waited at Respondent's office on this date from 3:55-4:30 p.m., but Respondent never arrived.

"On February 10, 1998, Ms. Szarvas filed a complaint against Respondent with the Commission.

"On February 18, 1998, the Commission sent a letter to Respondent, enclosing a copy of Ms. Szarvas's complaint and requesting a response within fifteen (15) days. Respondent did not reply to this request.

"On March 2, 1998, testimony in the Szarvas matter was again taken before a standing examiner. The Respondent filed the transcript of the testimony with the court on March 5, 1998.

"On March 12, 1998, the Commission sent a second notice to Respondent regarding the Szarvas complaint, requesting a reply within ten (10) days of receipt. This letter was sent by certified mail, and the return receipt was signed by Respondent. Respondent claimed he did not receive the first notice and requested another copy of the complaint.

"On March 25, 1998, the Commission sent Respondent a copy of the Szarvas complaint, and requested a response within fifteen (15) days. In return, Respondent sent the Commission a copy of the judgment of absolute divorce entered on March 30, 1998, but made no further reply.

"On August 25, 1998, Commission investigator John Reburn called Respondent and left a message requesting a return call. Respondent did not return this call.

"On August 26, 1998, Mr. Reburn wrote to Respondent requesting a meeting to discuss the complaint and review the file of Mary Szarvas. Respondentdid not reply to this request.

"On September 8 and 9, 1998, Mr. Reburn called Respondent and left messages requesting a return call to which Respondent did not reply.

"On September 9, 1998, Mr. Reburn left a business card at Respondent's law office with a note requesting a phone call.

"On September 10, 1998, Mr. Reburn contacted Respondent by telephone and requested a meeting. Respondent declined this request and chose to discuss the matter by telephone. In this conversation, Respondent acknowledged that testimony in the Szarvas matter became stale and had to be retaken. Additionally, Respondent explained that it took four years to obtain Ms. Szarvas's divorce because Mr. Szarvas often moved and was therefore difficult to serve.

"Ms. Szarvas was aware of Mr. Szarvas's address throughout Respondent's representation.

CONCLUSIONS OF LAW

"By his conduct in handling the divorce of Mary Szarvas, respondent has violated Maryland Rules of Professional Conduct 1.3,1.4, 3.2, and 8.1(b).

"Respondent violated Rule 1.3 in that it took him four years to obtain a divorce for Ms. Szarvas. Respondent's repeated failure to file testimony timely and to serve the defendant demonstrates a lack of reasonable diligence. Although Respondent claims that Mr. Szarvas was difficult to locate, the defendant's address could

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