Attorney Grievance v. Potter

• Decision Date: 09 March 2004
• Docket Number: Misc. Docket AG, No. 92 Sept. Term, 2002.
• Citation: 844 A.2d 367,380 Md. 128
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Steven John POTTER.
• Court: Maryland Court of Appeals

844 A.2d 367

380 Md. 128

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Steven John POTTER.

Misc. Docket AG, No. .

Court of Appeals of Maryland.

March 9, 2004.

Melvin Hirshman, Bar Counsel and Delores O. Ridgell, Asst. Bar Counsel for the Attorney Grievance Com'n of Maryland.

Andrew J. Graham, Baltimore, for Petitioner.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA, and JOHN C. ELDRIDGE, (Retired, specially assigned), JJ.

RAKER, Judge.

The Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary Action against Steven John Potter, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Maryland Rules of Professional Conduct 1.4 (Communication),¹ 1.7 (Conflict of interest),² and 8.4 (Misconduct).³ Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge Stuart R. Berger of the Circuit Court for Baltimore City to make findings of fact and proposed conclusions of law. Judge Berger held an evidentiary hearing and concluded that respondent had not violated any of the Rules.

I.

Judge Berger made the following findings of fact and conclusions of law:

FINDINGS OF FACT

"1. Respondent, Steven J. Potter, Esq. is 39 years old. He graduated from law school in 1989 and was admitted to the Maryland Bar in 1990. After completing a judicial clerkship, he began to practice law thereafter as an employee with the Law Office of Sheldon Braiterman, P.A. In February 1992, he left his employment at the Law Office of Sheldon Braiterman. From 1992-1997, the Respondent had his own practice. There is no evidence of any prior disciplinary complaints filed against the Respondent during his 13 year tenure as a member of the Maryland Bar.

"2. André R. Weitzman, Esq. has been a member of the Maryland Bar since 1979. From at least 1992 to the present, Mr. Weitzman has conducted his practice as a sole practitioner. See Tr., Afternoon Session, p. 11. From 1992 until July 1997, Mr. Weitzman and the Respondent had offices in the same building. During this time, Mr. Weitzman employed the Respondent as an independent contractor to work with him on some of Mr. Weitzman's cases. Mr. Weitzman and the Respondent had fee sharing agreements during that time period. From 1992 to July 1997, Mr. Weitzman and the Respondent did not have any disputes over those fee sharing agreements. See Tr., Afternoon Session, p. 32.

"3. During the period of July 1997 until on or about July 26, 2001, Mr. Potter was employed by the Law Offices of André R. Weitzman (hereinafter `the law firm'). There is no writing reflecting the terms of Mr. Potter's employment with the Law Offices of André R. Weitzman. See Tr., Morning Session, p. 35. Mr. Weitzman testified that the terms of Mr. Potter's employment called for a salary of $3,500.00 a month. See Tr., Morning Session, p. 17 and Afternoon Session, p. 13.

"4. In addition, the Respondent believed he was entitled to a percentage of the net proceeds, if any, from the law firm. Further, under the verbal terms of Mr. Potter's employment, the Respondent received a percentage of the fees generated by cases he worked on for the firm. When the Respondent brought a client to the law firm, he received 50% of the fee generated by that client. After the fees were deposited into the law firm's bank account, the Respondent would receive his share of the fees, less withholding taxes, from Mr. Weitzman. See Tr., Morning Session, p. 39 and Afternoon Session, p. 17.

"5. While employed by Mr. Weitzman, the Respondent was provided an office in which to work. Mr. Potter kept the files he was working on for the law firm in that office. Mr. Weitzman testified that the Respondent was free to remove files from the office if he needed to go to court or to take a file home. It was Mr. Weitzman's custom to retain client files while the representation was active and for at least five years thereafter. See, Tr., Afternoon Session, pp. 25-26.

"6. Two of the clients that the Respondent brought to the law firm were Joseph Caldart (hereinafter `Caldart') and Lorrie Kazmar (hereinafter `Kazmar'). See Tr., Afternoon Session, pp. 20-22. Accordingly, Mr. Potter, not Mr. Weitzman, brought both the Caldart and Kazmar matters to the law firm. See Tr., Morning Session, pp. 36-38.

"7. The Caldart matter involved both a worker's compensation matter and a third-party claim. Mr. Caldart signed a form agreement entitled `Power of Attorney and Contingent Fee Arrangement' on June 25, 1999 on the letterhead of the Law Offices of André R. Weitzman. See Joint Exhibit 21. The agreement calls for payment of a fee of `one-third (33 1/3) if terminated without suit' and `one-third (33 1/3) if suit is tried, of all amounts recovered by settlement or verdict' and reimbursement of advanced costs or as awarded by the Worker's Compensation Commission. See Joint Exhibit 21.

"8. Although the form agreement designates Mr. Weitzman as the attorney for the purpose of representing Caldart in connection with an `attack by goat at Forward Visions on 6/14/99,' it was Mr. Potter, not Mr. Weitzman, who served as Caldart's attorney. See Tr., Afternoon Session, pp. 59-60. Indeed, Mr. Weitzman did not `remember spending any time with Mr. Caldart,' and `did not handle the case.' See Tr., Afternoon Session, pp. 59-60.

"9. Lorrie Kazmar signed an agreement entitled `Power of Attorney and Contingent Fee Arrangement' dated May 12, 2000. See Joint Exhibit 17. The agreement states that Ms. Kazmar `appoints André R. Weitzman and Steven J. Potter as Attorneys for the purpose of representing [her] in connection with all claims and cases of action arising out of [her] contracting mesothelioma, and other illness related to her exposure to asbestos.' See Joint Exhibit 17.

"10. The Kazmar agreement calls for a fee of `one-third (33 1/3) if terminated without suit' and `one third (33 1/3) if suit is tried, of all amounts recovered by settlement or verdict and reimbursement to said Attorney for expenses advanced including Court costs.' See Joint Exhibit 17. Ms. Kazmar died during the representation, and Barbara St. John, as personal representative for her estate, entered into a similar agreement on behalf of the estate. See Joint Exhibit 18.

"11. Although both Messrs. Weitzman and Potter were formerly retained in the `Power of Attorney and Contingent Fee Agreement,' Mr. Potter, not Mr. Weitzman, served as the attorney for Ms. Kazmar, and thereafter, her estate. Indeed, Mr. Potter interviewed Ms. Kazmar `extensively,' while Mr. Weitzman poked his head in and said hello. See Tr., Morning Session, p. 38.

"12. The clear and convincing evidence elicited at the hearing demonstrates that Mr. Potter provided the legal services to the clients on behalf of the law firm regarding both the Caldart and Kazmar matters. See, Tr., Afternoon Session, pp. 20-23 and 59-60.

"13. Respondent elected to leave his employment with the Law Offices of André R. Weitzman for several reasons including, but not limited to, the fact the Respondent believed that Mr. Weitzman had not lived up to their agreement as to Mr. Potter's share of the profits for 2000, and because Mr. Weitzman had hired an inexperienced attorney and paid him the same as he paid the Respondent. See Tr., Morning Session, p. 99. The Respondent also thought his salary was too low and he did not always agree with Mr. Weitzman's methods of operation. See Tr., Morning Session, p. 99.

"14. On July 26, 2001, the Respondent advised Mr. Weitzman that he was resigning from his employment effective immediately. See Tr., Afternoon Session, pp. 24-25. The Respondent did not provide advance notice of his resignation to Mr. Weitzman because he feared that Mr. Weitzman would take action to interfere with and prejudice the best interests of the clients who Mr. Potter brought to the law firm. See Tr., Morning Session, pp. 128-29.

"15. Mr. Potter did not communicate with any client, including Joseph Caldart or Barbara St. John, concerning his intention to resign from his employment with the law firm until his resignation was effective. Mr. Potter refrained from telling any client that he was leaving the law firm until after he left, out of a concern not to breach any duty of loyalty that he might have to his employer. See Tr., Morning Session, pp. 74 and 100.

"16. Mr. Potter did not solicit any of the clients of the law firm before he resigned from his employment. See Tr., Morning Session, p. 100. Indeed, Mr. Weitzman acknowledged that `none of the clients suffered ...' because of Mr. Potter's departure from the law firm. See Tr., Afternoon Session, p. 39.

"17. Joseph Caldart terminated his contingency fee agreement with the Law Offices of André R. Weitzman on or about July 27, 2001 and entered into a new fee agreement with Mr. Potter at that time. See Tr., Morning Session, pp. 71-73; See Joint Exhibits 16, 22. The letter written to Mr. Weitzman notes that `[i]f there are any expenses arising from Mr. Potter's representation of [Mr. Caldart] for which you are requesting reimbursement, please forward your request with supporting documentation to Mr. Potter.' See Joint Exhibit 16.

"18. Barbara St. John, the personal representative of the Estate of Lorrie Kazmar terminated all contingency fee agreements between Ms. Kazmar, Ms. St. John, the Estate of Lorrie Kazmar and the Law Offices of André R. Weitzman on or about August 31, 2001. Ms. St. John, as personal representative of the Estate of Lorrie Kazmar, entered into a new fee agreement with Mr. Potter as did the Estate's trial counsel in New York. See Tr., Morning Session, pp. 75-76, 96; See Joint Exhibits 19, 20. The letter is silent as to the contingency fee agreement or the costs advanced by the Law Offices of André R. Weitzman in the Kazmar matter. Joint Exhibit 20.

"19. The clear and convincing evidence demonstrates that the clients who followed Mr. Potter when he left the Law Office of André R....