Attorney Grievance v. Ward

• Decision Date: 02 August 2006
• Docket Number: No. 47, September Term, 2004.,47, September Term, 2004.
• Citation: 904 A.2d 477,394 Md. 1
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kenneth S. WARD.
• Court: Court of Special Appeals of Maryland

904 A.2d 477

394 Md. 1

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Kenneth S. WARD.

No. 47, September Term, 2004.

Court of Appeals of Maryland.

August 2, 2006.

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COPYRIGHT MATERIAL OMITTED

John C. Broderick, Asst. Bar Counsel, Atty. Grievance Com'n of Maryland, for petitioner.

Edward Smith, Jr., Baltimore, for respondent.

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

GREENE, J.

The Attorney Grievance Commission, through Bar Counsel ("Petitioner") and in conformance with Maryland Rule 16-751¹, filed a Petition for Disciplinary or Remedial Action against Respondent, Kenneth Stanford Ward, alleging violations of the Maryland Rules of Professional Conduct (MRPC) 1.1 (Competence)², 1.2(a), (b), and (c) (Scope of Representation)³, 1.3 (Diligence)⁴, 1.4(a) and (b) (Communication)⁵, 1.5(a) (Fees)⁶, 3.3(a)(1) (Candor Toward the Tribunal)⁷, 5.3(c) (Responsibilities Regarding Non Lawyer Assistants)⁸, 8.1(a) and (b) (Bar Admission and Disciplinary Matters)⁹, and 8.4(a), (c), and (d) (Misconduct)¹⁰.

We referred the petition to Judge Wanda Keyes Heard of the Circuit Court for Baltimore City, to conduct a hearing and submit to this Court her proposed findings of fact and conclusions of law.

On July 5 and 7, 2005, Judge Heard conducted hearings and, on August 12, 2005, submitted her findings and conclusions. She concluded that Respondent had violated MRPC 1.1, 1.3, 1.4, 1.5, 3.3(a)(1), 5.3(a), 8.4 generally, and 8.4(d) and concluded that Respondent had not violated Rule 8.1(a). She made no specific findings as to MRPC 8.4(a) and (c). Specifically, as to the complaint filed by Albert Jenkins, Judge Heard determined that Respondent violated MRPC 1.5, 5.3(a) and did not violate Rule 1.1. As to Rule 8.4 and the Jenkins complaint, she determined that Respondent essentially violated the spirit of the Rule in regards to his inadequate supervision of his secretary in obtaining the client's notarized signature. Judge Heard, however, made no specific findings as to subsections (a), (c) or (d) of Rule 8.4. As to the complaint filed by Daryl Torain, Judge Heard found that Respondent violated MRPC 1.1, 1.3, 1.4, 3.3(a)(1), and 8.4(d).

Bar Counsel filed four exceptions, stating that the hearing judge 1) abused her discretion in granting Respondent's motion to vacate the Order of Default; 2) failed to find a violation of Rule 1.1 regarding Mr. Jenkins's release on bail; 3) failed to grant petitioner's request to compel discovery; and 4) erred in finding that Respondent did not violate Rule 8.1(a) in his representation of Mr. Torain. Respondent also filed exceptions asserting that the hearing judge erred in finding that Rules 1.5, 5.3(c), and 8.4 had been violated with respect to Respondent's representation of Mr. Jenkins. In addition, Respondent contended, as to Mr. Torain, that the hearing judge erred in finding that Respondent had violated MRPC 3.3(a)(1) and 8.4.

We summarize Judge Heard's Findings of Fact and Conclusions of Law as follows:

Complaint of Albert Jenkins

Mr. Jenkins, who was incarcerated at the Montgomery County Detention Center, retained Respondent on August 6, 2003, to arrange bail for him and his friend, Thomas Shea. Mr. Jenkins executed a retainer agreement and also a Power of Attorney for Respondent to access Mr. Jenkins's Chevy Chase bank account. The Power of Attorney required notarization and, since Respondent was not a notary, he requested that his secretary, Ms. Tyner, notarize the document outside the presence of Mr. Jenkins. Ms. Tyner was not coerced into notarizing the document but did so using her own notarial discretion. Because Respondent was aware that Ms. Tyner was notarizing a document with the signatory absent, Respondent, as her supervisor, should have taken action to disallow it. Respondent's failure to so do is a violation of Rules 5.3(c) and 8.4.

Mr. Jenkins gave Respondent permission, using the Power of Attorney, to withdraw $20,000 from Mr. Jenkins's bank account. The $20,000 was meant to pay for Respondent's flat fee of $5,000, $15,000 to secure Mr. Jenkins's release, and $500 for Mr. Shea's release. On August 7, 2003, Respondent withdrew $20,000 from Mr. Jenkins's account and obtained a $15,000 cashiers check for Main Street Bail Bonds. When Respondent realized that he would not have the $500 needed for Mr. Shea's release, Respondent, on August 8, 2003, redeposited the $15,000 back into Mr. Jenkins's account. Respondent then withdrew $2,000 in the form of a cashier's check and paid Main Street Bail Bonds for both Mr. Jenkins's and Mr. Shea's release.

Mr. Jenkins was released on or about August 10, 2003. He discharged Respondent and requested that Respondent provide a statement for the retainer and refund sums not earned. In response to this request, Respondent sent Mr. Jenkins a statement, dated September 20, 2003, showing an additional $585.00 due over and above the $5,000 flat fee agreement.

Respondent violated Rule 1.4 when he did not advise Mr. Jenkins of the problems he was having in arranging the bonds for his and Mr. Shea's release. Respondent did not violate Rule 1.1 because, even though he did not follow Mr. Jenkins's exact instructions, Respondent did accomplish the goal for which he was retained. Respondent's statement to collect $585.00 in excess of the flat fee agreement he had with Mr. Jenkins is a violation of Rule 1.5.

Complaint of Daryl Lamont Torain

On January 7, 2002, Mr. Torain retained Respondent to represent him in a District Court action brought by Maryland Apartment, Inc. involving a landlord-tenant matter. The trial was initially scheduled for February 11, 2002, but was postponed to May 6, 2002. Mr. Torain was notified of the initial trial date by the court; however, after Respondent entered his appearance in the case on January 28, 2002, Mr. Torain was not notified by the court of the postponement to May 6. Respondent requested a continuance of the case and notified Mr. Torain of his request by letter dated April 29, 2002, but also advised Mr. Torain that he should appear May 6. Even though Respondent did not receive a continuance of the May 6 date, he failed to communicate this to Mr. Torain. Since Respondent had to represent another client, Tyree Woodson, in the Circuit Court for Baltimore City on May 6, 2002, he arranged for a stand-in attorney to appear in District Court for Mr. Torain. Respondent also failed to communicate this arrangement to Mr. Torain. Mr. Torain did not show up on May 6, and, in his absence, Maryland Apartment, Inc., was granted a default judgment of $1,511.03. Mr. Torain only became aware of the judgment when he received a collection notice from Maryland Apartment, Inc.

The default judgment against Mr. Torain was entered on May 6, 2002. Respondent filed a Motion to Vacate Judgment on October 24, 2002, incorrectly stating that Mr. Torain was in court on May 6. The Motion was denied because it was not timely filed. Respondent told Mr. Torain that he had followed up his April 29, 2002, letter to the court for a continuance with a telephone call on May 5, 2002, to the clerk at the District Court and was told that Mr. Torain's case had been continued.

In his complaint to Petitioner, Mr. Torain charged that he had asked Respondent for copies of pleadings filed in his case but that Respondent did not provide them. In addition, Mr. Torain requested Respondent to refund the retainer fee of $300 and to pay for the default judgment. Respondent has paid Mr. Torain $1,000 as of the date of Bar Counsel's petition.

Respondent was notified by letter dated February 12, 2003, of the pending complaints against him and his response was due within ten days. Respondent requested a 15-day extension on March 8, 2003, in order that he could serve as counsel for another client in a jury trial. A provisional extension was granted on March 12, 2003, provided that Respondent provide the case number and information on the duration of the jury trial. Instead of providing the requested information, Respondent answered Petitioner's initial letter and attached a copy of the Motion to Vacate Judgment in Mr. Torain's case which incorrectly stated that Mr. Torain was in court on May 6. Petitioner further expressed concern to Respondent regarding the discrepancy that Respondent was claiming to believe that Mr. Torain's case had been postponed but had, nevertheless, sent a stand-in attorney for the scheduled trial on May 6.

Though Respondent was accused of violating MRPC Rule 8.1, in the Petition filed in this case which states: "An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar admission application or in connection with a disciplinary matter, shall not: (a) knowingly make a false statement of material fact; or (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6." Specifically, the Petition for Disciplinary Action stated that Respondent made misrepresentations to the investigator for Bar Counsel regarding Respondent's representation of Mr. Torain. Petitioner has elected to abandon the 8.1(b) claim against Respondent.

This Court does not find [that Respondent violated Rule 8.1(a) or] that the Petitioner has proven by clear and convincing evidence any false statements of material fact made by Respondent. Petitioner did, however, present several instances of sloppiness and human errors in the documentation provided by the Respondent. The Court of Appeals has held that inexperience can be considered as a mitigating factor in determining sanctions of an attorney. Attorney Grievance Commission v. O'Neill, 285 Md. 52, 55-57, 400 A.2d 415 (1979).

Respondent is accused of violating Rule 8.4...