Attorney Grievance v. Johnson

• Decision Date: 12 April 2001
• Docket Number: No. 6,6
• Citation: 770 A.2d 130,363 Md. 598
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Dana W. JOHNSON.
• Court: Maryland Court of Appeals

770 A.2d 130

363 Md. 598

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. Dana W. JOHNSON.

No. 6, Sept. Term, 2000.

Court of Appeals of Maryland.

April 12, 2001.

Melvin Hirshman, Bar Counsel and Raymond A. Hein, Assistant Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner.

Barry Helfand, Rockville, for respondent.

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

Pursuant to Maryland Rule 16-709(a),¹ Bar Counsel, on behalf of the Attorney Grievance Commission (AGC) (Petitioner), and at the direction of the Review Board, filed a petition with this Court for disciplinary action against Dana W. Johnson (Respondent) and John F. McLemore.² In this petition, Bar Counsel prosecuted a complaint against Respondent alleging violations of Rules 1.7(b) (conflict of interest), 3.3(a)(1) (candor toward the tribunal), 5.5 (unauthorized practice of law), 7.1 (communications concerning a lawyer's services), 7.5 (firm names and letterheads), and 8.4 (misconduct) of the Maryland Rules of Professional Conduct (MRPC).³ This Court referred the matter to Judge Ann S. Harrington of the Circuit Court for Montgomery County to conduct an evidentiary hearing and to make recommended findings of fact and conclusions of law in accordance with Maryland Rules 16-709(b)⁴ and 16-711(a)⁵.

I.

After a three day evidentiary hearing, Judge Harrington filed a written Opinion on 13 November 2000, in which she found, by clear and convincing evidence, that Respondent violated MRPC 1.7(b), 3.3(a)(1), 5.5(a), 7.1, 7.5(a) and (b), and 8.4(a), (c), and (d). In addition to filing exceptions to certain findings of fact and conclusions of law made by Judge Harrington, Respondent also excepted to specific evidentiary matters regarding one of the complainants, Mrs. Rebecca Bantug, and her testimony before the Inquiry Panel. Petitioner, who took exception only to Judge Harrington's conclusion that Respondent did not violate Rule 7.5(d), recommends that, even should we overrule its exception, we disbar Respondent from the practice of law for his misconduct. Assuming we do not dismiss the petition or remand the matter for a new hearing as he asks, Respondent urges, as an appropriate sanction, a reprimand or a 30 day suspension, at worst.

From the record before her, Judge Harrington made the following findings of fact pertaining to Respondent's conduct:

A. The Law Offices of McLemore and Johnson, P.C.

1. Respondent was admitted to practice law in Virginia and the District of Columbia (D.C.) in June 1988. He is not and never has been licensed to practice law in Maryland.

2. In January 1997, Respondent and McLemore forged a professional association when they began sharing office space, equipment, support staff, and expenses in Silver Spring, Montgomery County, Maryland.

3. Respondent testified that he and McLemore maintained their own clients and files, with McLemore handling the Maryland cases and Respondent handling the Virginia and D.C. cases. He also claimed that, when his clients sought services in Maryland, he referred them to McLemore.

4. Respondent and McLemore practiced under the firm name of "Law Offices of McLemore and Johnson, P.C."⁶

5. Respondent admitted that he did not indicate his jurisdictional limitations on the firm's letterhead, which listed only a Maryland office. Respondent contended that he did not think he needed to list his jurisdictional limitations because he and McLemore maintained a single office in Maryland, not in multiple jurisdictions, and because they did not mix files.

B. The Contract of Sale for the Bantugs' Home

1. On 13 June 1996, Respondent entered into a contract with Arturo and Rebecca Bantug for the purchase of their Fort Washington, Maryland, home. The terms of the contract required Respondent to pay $6000 [to the Bantugs] and all debts accrued and accruing, including penalties, on the first and second mortgages held by Chase Manhattan Mortgage Corporation (Chase Manhattan) and Commercial Credit Corporation, respectively, in addition to securing [re]financing by 30 May 1997, the date after which the contract would terminate. The Bantugs were required by the contract not to contact either mortgage company to discuss the sale of the property without Respondent's prior knowledge and consent.

2. Prior to [Respondent] entering into the contract for sale, Chase Manhattan retained counsel to initiate foreclosure proceedings [in Prince George's County, Maryland] based upon the Bantugs' default on their first mortgage. Respondent was aware of this situation, and on 28 May 1996, he contacted Chase Manhattan's counsel to advise that the Bantugs had retained him to represent them in connection with the pending foreclosure and to propose that the Bantugs make double payments on the defaulted mortgage until the arrearage was satisfied. The [lender's] law firm rejected this proposal.

3. A distant relative of the Bantugs, a practicing attorney, assisted them with drafting the contract of sale. Although the Bantugs did not retain an attorney to represent them in conjunction with this sale, Respondent did not advise them that they might want to do so.

4. On or about 16 June 1996, approximately three days after signing the contract, the Bantugs relocated to the Phillippines, where they continue to reside. Respondent moved into the Fort Washington home in June 1999.

5. Respondent breached the terms of the contract by failing to bring the first or second mortgage current.

6. On 10 July 1996, approximately one month after executing the contract of sale, Respondent again wrote to Chase Manhattan's law firm to advise that the Bantugs were still interested in bringing their account current. On 5 August 1996, Respondent sent the law firm yet another proposal for payment of the arrearage on the Bantugs' account along with a request that their loan be reinstated. Respondent attached a copy of a letter allegedly signed by Mr. and Mrs. Bantug, which explained that a family crisis had caused them to fall behind on their payments and that they desired to bring their loan current and to have their loan reinstated.

7. Rebecca Bantug testified⁷ that she told Respondent of her and her husband's plans to sell their home because they were several months in arrears on both of the mortgages. According to Mrs. Bantug, Respondent offered to purchase the home, which she indicated Respondent knew had been appraised, prior to the sale, for $250,000. She further testified that Respondent neither disclosed that his interest in the sale might be adverse to their interest nor advised her how to deal with the delinquent mortgages.

C. The Bantugs' Petition for Bankruptcy

1. Mrs. Bantug testified that she returned to the United States in June 1997, one year after her departure. Retrieving her mail from her sister's house, which she used for her forwarding address, Mrs. Bantug discovered that Chase Manhattan's counsel had attempted to contact her regarding the foreclosure sale of the Fort Washington home. Upon consulting with an attorney, Mrs. Bantug contacted Chase Manhattan and Commercial Credit to obtain information regarding the status of her mortgages; she learned then that a petition for bankruptcy had been filed on the Bantugs' behalf. On referral, Mrs. Bantug retained an attorney more familiar with foreclosure and bankruptcy proceedings to represent her and her husband in resolving the bankruptcy matter.

2. On 23 May 1997, a voluntary petition for bankruptcy was filed in the United States Bankruptcy Court, District of Maryland, Greenbelt Division. The petition bears the purported signatures of the Bantugs and was allegedly filed by McLemore, whose signature also appears on the petition. On 9 June 1997, additional documents were filed in the case, including a statement of financial affairs, an individual debtor's statement of intention, and a Chapter 13 plan, all of which bear the Bantugs' purported signatures. On 26 June 1997, a motion to convert from Chapter 13 to Chapter 7 was filed bearing McLemore's purported signature,.

3. On 27 May 1997, a notice of bankruptcy was filed [in the foreclosure action] in the Circuit Court for Prince George's County, Maryland. The notice, stating that a voluntary petition for bankruptcy had been filed on behalf of the Bantugs, bears McLemore's purported signature.

4. The Bantugs' counsel confronted McLemore and asked him why he had filed the bankruptcy petition without the consent or knowledge of the Bantugs. McLemore responded that he did not know the Bantugs; he did not represent them; he did not file the petition; and, that he did not authorize anyone else to sign their names or his own. Rather, he informed the Bantugs' attorney that it was his partner, Respondent, who represented the Bantugs in their bankruptcy matter. Although McLemore admitted that Respondent had requested that McLemore act as local counsel in connection with a Maryland bankruptcy claim, McLemore asserted that Respondent provided him with neither the names of the parties nor the details of the case. Moreover, he claimed that he never authorized Respondent to sign his name, and that Respondent never consulted with him before he affixed the signatures and filed the petition.⁸

5. Respondent maintains that Mrs. Bantug, if not her husband, knew about the filing of the bankruptcy petition, for it was necessary to file the petition in order to stop the foreclosure sale on the Fort Washington home, which had been scheduled for 27 May 1997. Respondent also claims that he was unable to secure financing, as required under the terms of the contract of sale, because the true value of the home was significantly less than the appraisal value. He noted that he never intended to pursue the bankruptcy matter, but rather intended only to delay the foreclosure sale.

6. Respondent admitted that he signed the Bantugs' and McLemore's names to the bankruptcy petition...