Attorney Grievance v. Maignan

• Decision Date: 08 November 2007
• Docket Number: Misc. AG No. 13 Sept. Term, 2006.,Misc. AG No. 64 Sept. Term, 2006.
• Citation: 935 A.2d 409,402 Md. 39
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Peter R. MAIGNAN.
• Court: Court of Special Appeals of Maryland

935 A.2d 409

402 Md. 39

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Peter R. MAIGNAN.

Misc. AG No. 13 Sept. Term, 2006.

Misc. AG No. 64 Sept. Term, 2006.

Court of Appeals of Maryland.

November 8, 2007.

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

William C. Brennan, Jr. (Brennan, Sullivan & McKenna, LLP), Greenbelt, for respondent.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, Specially Assigned) and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

ALAN M. WILNER, Judge, (Retired, Specially Assigned).

Before us are two petitions for disciplinary or remedial action filed by Bar Counsel, on behalf of the Attorney Grievance Commission, against respondent, Peter Richard Maignan. Although the petitions were filed separately, involve different matters, and were referred to different judges for hearing, upon receipt of the findings and conclusions of the hearing judges, we consolidated the petitions and shall deal with them in this one Opinion. As a backdrop, we note that Maignan is currently on an indefinite suspension as the result of a trust account violation. See Attorney Grievance v. Maignan, 390 Md. 287, 888 A.2d 344 (2005).

NO. 13 (FULLER AND THOMAS)

The petition in No. 13, which involves complaints by Morris Fuller and Monica and Benny Thomas, was filed in May, 2006.¹ In accordance with Maryland Rule 16-752, we referred the petition to Judge Dwight D. Jackson, of the Circuit Court for Prince George's County, who conducted a hearing in October, 2006, and presented us his findings of fact and conclusions of law. Unfortunately, the testimony of Monica Thomas was not recorded, and, on Bar Counsel's motion, we remanded the petition to Judge Jackson, who conducted a further evidentiary hearing in June, 2007, and filed a revised statement of his findings and conclusions.

Morris Fuller

Bar Counsel's petition with respect to Fuller alleges that, in December, 2003, Morris Fuller retained Maignan and his firm to collect a $28,502 judgment that Fuller had obtained against Bryant Enterprises, Inc., a defunct corporation. Fuller paid Maignan an initial retainer of $2,000 and made a subsequent payment of $2,700. Bar Counsel averred that Maignan charged an unreasonable fee, including a charge of $62 for preparing the retainer agreement, that he or his associate filed frivolous motions and defective pleadings, that he failed to supervise lawyer and non-lawyer employees, and that he failed to return unearned fees to Fuller.

On those allegations, Bar Counsel charged Maignan with violations of Maryland Rules of Professional Conduct (MRPC) 1.1 (Competent representation), 1.3 (Diligence), 1.5(a) (Reasonable fee), 1.16(d) (Refund unearned fees), 3.1 (Frivolous proceeding), 5.1 (Assuring professional conduct by lawyer-employees), 5.3(a) and (c) (Assuring professional conduct by non-lawyer employees), 8.4(a) (Violating other MRPC), and 8.4(d) (Conduct prejudicial to administration of justice).

After hearing evidence, Judge Jackson found that Bar Counsel had failed to prove any of the charges. He noted that Fuller had the assistance of another attorney in obtaining the judgment and that the other attorney, prior to her dismissal, had filed and served on the debtor interrogatories in aid of execution. When the interrogatories were not answered, Maignan filed a motion for contempt and for a writ of execution. The motion for contempt was never ruled on; the writ of execution was denied. At some point thereafter, Fuller and John Bryant, a principal in the defunct corporation, agreed to settle the judgment for $10,000.² A note evidencing that debt was prepared by someone, Bryant made an advance payment of $3,500, and Maignan was instructed by Fuller to draft an agreement memorializing the settlement. At a meeting held in Maignan's office on April 10, 2004, Bryant tendered a check for the $6,500 balance, but Fuller declined to accept the money, repudiated the settlement, and told Maignan that he wanted full payment.

Maignan informed Fuller that he did not wish to represent him further, and he instructed an associate who had been working on the matter to cease doing any more work for Fuller. Despite that instruction and without Maignan's knowledge, the associate filed additional motions for oral examination, which were not granted. When Maignan learned of her conduct, he discharged her. Fuller was not charged for her work in connection with those motions. Bar Counsel has filed no exceptions to Judge Jackson's findings and conclusions in the Fuller matter, and, given the record before us, we shall dismiss that part of the petition.

Monica and Benny Thomas

Bar Counsel alleged that Maignan had represented Monica and Benny Thomas in connection with a case in the Circuit Court for Prince George's County and that he agreed to represent the Thomases in an appeal to the Court of Special Appeals. Maignan was paid $110 and an appeal was noted in September, 2002. Maignan failed to file an Information Report, as required by Maryland Rule 8-205, however, and, on or about October 25, 2002, the appeal was dismissed. Bar Counsel contended that notice of the order of dismissal and the ultimate mandate were "forwarded" to Maignan and that Maignan failed to disclose the dismissal to the Thomases.

In July, 2003, according to Bar Counsel, Maignan advised Mr. Thomas that, to continue with the appeal, Thomas would have to pay $3,500 plus $1,000 on an outstanding balance. In August, 2003, the Thomases paid Maignan $3,000 to pursue the appeal. In October and November, a nonlawyer employee, Erica Gayle, prepared a brief to be filed in the appeal, for which the Thomases were charged $100/hour. On November 24, 2003, Maignan informed the Thomases that he was ceasing work on the appeal because of their failure to tender payment on overdue invoices.

Complaining that Maignan had inappropriately charged the Thomases for work on an appeal that had already been dismissed, refused to refund the moneys paid by them, and failed to supervise Ms. Gayle, Bar Counsel charged Maignan with violations of MRPC 1.1 (Competent representation), 1.3 (Diligence), 1.4(a) and (b) (Keeping client informed), 1.5 (Reasonable fee), 1.16(d) (Returning unearned fee), 5.1 (Assuring professional conduct by lawyer-employees), 5.3 (Assuring professional conduct by nonlawyer employees), 8.4(a) (Violating other MRPC), 8.4(c) (Dishonest conduct), and 8.4(d) (Conduct prejudicial to administration of justice).

After hearing evidence from the Thomases and Maignan, Judge Jackson determined, as he had with respect to the Fuller complaint, that Bar Counsel had failed to prove any of the alleged violations. He found that, in March, 2002, the Thomases retained Maignan to represent them in a lawsuit pending in the Circuit Court for Prince George's County against Mercedes Benz Credit Corporation and other entities. In September, 2002, the action was dismissed, and Maignan, on behalf of the Thomases, filed a notice of appeal, for which he was paid or reimbursed $110. The retainer agreement that the parties had did not include the appeal, and, when Maignan advised that he would not continue with the appeal unless the balance then due him was paid, Ms. Thomas informed Maignan that the Thomases would be handling the appeal pro se. Judge Jackson made no finding as to when that conversation took place. Although neither of the Thomases was a lawyer, Ms. Thomas had worked in some capacity for the U.S. Department of Justice and one or both of them had litigated pro se in the past.

It appears that neither Maignan nor the Thomases ever filed an Information Report with the Court of Special Appeals, which is required in civil cases by Maryland Rule 8-205. As a result, the appellate court, on October 25, 2002, dismissed the appeal. The mandate reflecting that dismissal was issued a month later, on November 25. Although Maignan's name appears on both the notice of dismissal and the mandate, Maignan denied receiving those documents, and Judge Jackson noted that "there was no evidence that the Respondent received the documents ..."³ Maignan, it thus appears, was unaware at the time that the appeal had been dismissed.

In July, 2003, the Thomases advised Maignan that the appeal was ongoing and that their brief was due on September 1. Maignan agreed to prepare the brief if the Thomases paid (1) money owed for the Circuit Court case, (2) money owed for his representation of the Thomases' son in a different matter, and (3) a retainer for writing the appellate brief. In August, the Thomases paid Maignan $3,000, of which $1,000 was allocated to preparation of the brief, and advised that the time for filing the brief had been extended to December. Maignan testified that he prepared a brief, had it printed, and sent a copy to Mr. Thomas, but at some point noticed that it had no case number, and that, when he called the Clerk of the Court of Special Appeals to get the case number, he was informed that the appeal had been dismissed. He relayed that information to Ms. Thomas, who denied that the appeal had been dismissed. Maignan did no further work and billed nothing more than the $1,000 paid in August.

Upon these findings, Judge Jackson concluded that Maignan had never actually represented the Thomases in the appeal, and, for that reason, had not committed any of the violations alleged by Bar Counsel. He stated:

"An attorney has a duty to keep himself informed as to the status of a case, but in the instant case Respondent did not represent the Thomases on the appeal of the Mercedes Benz matter since they initially elected to pursue the appeal in proper person. The Respondent reasonably relied upon the representations of the Thomases that they were actively pursuing the appeal because he thought he was preparing an appellate brief due initially on September 1, 2003 and extended until ...