Attorney Grievance v. Mcclain

• Decision Date: 08 September 2008
• Docket Number: Misc. Docket AG No. 23, September Term, 2007.
• Citation: 406 Md. 1,956 A.2d 135
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles E. McCLAIN, Sr.
• Court: Court of Special Appeals of Maryland

956 A.2d 135

406 Md. 1

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Charles E. McCLAIN, Sr.

Misc. Docket AG No. 23, September Term, 2007.

Court of Appeals of Maryland.

September 8, 2008.

Dolores O. Ridgell, Asst. Bar Counsel (Melvijn Hirshman, Bar Counsel, Atty. Grievance Com'n of Maryland), for petitioner.

Melvin G. Bergman, Greenbelt, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY and JOHN C. ELDRIDGE, (Retired, Specially Assigned), IRMA S. RAKER, (Retired, Specially Assigned), JJ.

GREENE, J.

The Attorney Grievance Commission of Maryland, acting through Bar Counsel and pursuant to Maryland Rule 16-751(a),¹ filed a Petition For Disciplinary or Remedial Action against Respondent Charles E. McClain, Sr. on August 10, 2007. The Petition alleged that Respondent, who was admitted to the Bar of this Court on September 30, 1993, violated Maryland Rules of Professional Conduct ("MRPC") 1.1 (Competence),² 1.7(b) (Conflict of Interest),³ 3.1 (Meritorious Claims and Contentions),⁴ 3.2 (Expediting Litigation),⁵ 3.3(a) (Candor Toward the Tribunal),⁶ 4.4(a) (Respect for Rights of Third Persons),⁷ 8.2(a) (Judicial and Legal Officials),⁸ and 8.4(c) & (d) (Misconduct)⁹ in his representation of Gustav Hamilton. Pursuant to Maryland Rules 16-752(a)¹⁰ and 16-757(c),¹¹ we referred the matter to the Honorable Cathy H. Serrette of the Circuit Court for Prince George's County to conduct an evidentiary hearing and to submit to this Court proposed findings of fact and conclusions of law.

On March 10, 2008, Judge Serrette issued findings of fact and conclusions of law, in which she found that Respondent violated MRPC 1.1, 3.1, 3.2, 3.3(a), 4.4, 8.2(a) and 8.4(c) and (d), but not MRPC 1.7(b). Judge Serrette's findings of fact and conclusions of law read in pertinent part:

Background

On July 13, 2003, Barbara Johnson, through her attorney, Todd Kelting, Esquire, filed a partition action against Gustav Hamilton in the Circuit Court for Prince George's County seeking the sale of jointly owned real property. The court entered an Order of Default on November 18, 2003 and subsequently entered judgment against Mr. Hamilton. On May 21, 2004, the court ordered that the real property be sold, that the first $25,580.62 of proceeds be distributed to Ms. Johnson, and that any remaining proceeds be divided equally between the parties. In an Order dated June 7, 2004, the court appointed Ade Awojobi as Trustee to sell the property pursuant to Maryland Rule 14-303. Mr. Hamilton's prior counsel filed an unsuccessful Motion to Vacate.

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Findings of Fact

The facts underlying the alleged violations are, for the most part, undisputed. Respondent admitted all of the facts set forth in Petitioner's Request for Admission of Facts and Genuineness of Documents, and the Court of Special Appeals issued an unreported decision following Respondent's appeal in the underlying case.

Respondent was admitted to the Bar of Maryland on September 30, 1993 and maintains a law office in Prince George's County. Respondent was also admitted to the Bar of the District of Columbia. Additionally, he has been a licensed real estate broker and developer in Maryland since 1968, and the broker for his own company, Geoplex Realty, since 1999.

On September 13, 2004, Respondent entered his appearance as Mr. Hamilton's counsel. Respondent thereafter entered into an agreement with his client to act as the broker for the purchase of the real property that was the subject of the partition action in which Respondent was counsel for Mr. Hamilton. The agreement provided that Respondent, through Geoplex Realty, would receive half of the commission resulting from the sale. The commission was to be paid in lieu of attorney's fees.

Upon entering the case, Respondent filed a Motion to Set Aside and/or Vacate Default Judgment knowing that a previous Motion to Vacate Default Judgment had been denied. Opposing counsel, Todd Kelting, notified Respondent, via letter, that he did not deem the Motion to Set Aside and/or Vacate Default Judgment to be legally justified. On September 20, 2004, Ms. Johnson filed her first Request for Sanctions pursuant to Maryland Rule 1-341. On September 24, 2004, the Trustee filed a Motion to Compel Sale of the Property. These matters came before the trial court on Oct. 22, 2004. During the hearing, Respondent requested that his Motion to Set Aside and/or Vacate Default Judgment be considered a request for reconsideration. He further asked that Judge Dawson recuse himself from the case if sanctions were to be imposed, insofar as Judge Dawson had sanctioned Respondent "in just the recent past." Judge Dawson denied the recusation request, the Motion to Set Aside Default Judgment, and the oral motion to consider the Motion to Set Aside as a motion for reconsideration. He deemed the Motion to Set Aside and/or Vacate Judgment to be without basis and found that Respondent had filed the motion as a tactic to stall the proceedings. Respondent and Mr. Hamilton were jointly and severally sanctioned.

On November 1, 2004, Respondent filed a Motion to Alter or Amend Judgment and asked the court to compel the Trustee to sell the property in question to Mr. Hamilton. Respondent argued that the case law was unclear as to Mr. Hamilton's rights as a joint tenant, but proffered that, "Hamilton is entitled by right, as joint tenant, to settlement with Johnson if able to do so, prior to any third party purchase."¹² On November 5, 2004, Respondent filed a Motion to Stay Proceedings Below in the Court of Special Appeals. On November 8, 2004, Ms. Johnson filed a second Request for Sanctions Pursuant to Maryland Rule 1-341 asserting that Respondent's tactics were dilatory, meritless and designed to impede Ms. Johnson's statutory right to sell the property. Ms. Johnson opposed the Motion to Alter and Amend Judgment and requested reasonable attorneys' fees. In response, Respondent filed a Request for Sanctions Pursuant to Maryland Rule 1-341, asserting that Mr. Hamilton could purchase the property at the appraised value if given the opportunity to refinance and that he should not have to match a higher third party offer.

In the meantime, Respondent continued to engage in negotiations with the Trustee. He entered into a contract to close on the property by November 24, 2004. The Trustee granted two extensions, but ultimately cancelled the contract because Mr. Hamilton failed to obtain financing. Ms. Johnson filed an Emergency Motion for Appropriate and Expedited Relief asserting that Respondent's delay tactics had prevented the Trustee from closing with third party purchasers. On December 17, 2004, Respondent filed an Emergency Motion to Allow Respondent Priority to Settle with Trustee or to Stay Transfer Title to Third Party Purchaser. The property had been appraised at $228,000.00, but the Trustee received offers as high as $259,000.00. Mr. Hamilton could not match the higher offers.

On January 2, 2005, in response to charges that Respondent was preventing the sale of the property, Respondent filed a Motion for Trustee to Provide Appraisal. Respondent asserted that the delay in selling the property was due to the Trustee's failure to post a bond and provide an appraisal per Maryland Rule 14-303. In a motion filed days earlier, Ms. Johnson had requested that Mr. Hamilton be held in contempt for preventing an appraiser from a third-party's prospective mortgagee from entering the property.

On January 25, 2005, after the Trustee had canceled Mr. Hamilton's contract, Respondent unilaterally scheduled a "sham" settlement on the property with a mortgage company. Respondent knew that the Trustee was out of the country on the date of "settlement" and that the Trustee had not approved the settlement. Respondent thereafter wrote to the Trustee and filed a Line with the court indicating that Mr. Hamilton had settled.

Judge Dawson heard argument on all outstanding motions on March 17, 2005. The court determined that Respondent's motions had been pursued in bad faith and without substantial justification and suggested that Respondent had become "too close" to Mr. Hamilton's proceedings. Sanctions were imposed against Respondent and Mr. Hamilton in the amount of $12,230.00 to cover Ms. Johnson's counsel fees.

On March 25, 2007, Respondent sent a letter to Judge Missouri, Administrative Judge for the Circuit Court of Prince George's County, without notice to opposing counsel or the Trustee, asserting that Respondent was precluded from filing appropriate motions regarding the property out of fear of being sanctioned. He concluded: "Please lead me in the proper direction within the confines of your Court so that justice may be done considering the status of this case."

On March 29, 2005, Respondent was notified that the Trustee had sold the property for $259,000.00. On May 3, 2005, the court ratified the sale. The Auditor's Report was entered on July 13, 2005.

Respondent noted an appeal. On September 19, 2005, he filed a brief with the Court of Special Appeals in which he challenged the sale and the sanctions. Respondent's brief misrepresented remarks made by Judge Dawson during the March 17, 2005 hearing, claiming that Judge Dawson had said that the judge was too close to the matter, when to the contrary, Judge Dawson had told Respondent that Respondent might be too close to be objective. The Court of Special Appeals found that Respondent "misconstrued and twisted" Judge Dawson's words. It further held that the Trustee acted in accordance with his statutory duties, and noted that Respondent's "legal arguments [were] not presented in the context of the facts of this case, nor [did] he make an effort to apply the law, or invoke precedent to bolster his argument." The Court ruled that the Circuit Court had not erred in finding that Respondent violated Maryland Rule 1-341 and did not abuse its discretion in sanctioning Respondent, noting that "the evidence and...