In re Fox
| Decision Date | 23 May 2013 |
| Docket Number | No. 10–BG–1630.,10–BG–1630. |
| Citation | 66 A.3d 548 |
| Parties | In re David E. FOX, Respondent. A Member of the Bar of the District of Columbia Court of Appeals (Bar Registration No. 165258). |
| Court | D.C. Court of Appeals |
OPINION TEXT STARTS HERE
David E. Fox, Washington, DC, pro se.
William R. Ross, Assistant Bar Counsel, with whom Wallace E. Shipp, Jr., Bar Counsel, and Jennifer P. Lyman, Senior Assistant Bar Counsel, were on the brief, for the Office of Bar Counsel.
Before WASHINGTON, Chief Judge, and FISHER and THOMPSON, Associate Judges.
In this reciprocal discipline proceeding against respondent David E. Fox, the Board on Professional Responsibility (“Board”) recommends that we impose a two-year suspension with conditions. Bar Counsel argues that respondent should receive the identical reciprocal discipline of disbarment. We adopt the Board's recommendation.
On December 20, 2010, the Maryland Court of Appeals disbarred respondent from the practice of law. Attorney Grievance Comm'n of Maryland v. Fox, 417 Md. 504, 11 A.3d 762 (2010). This sanction was based upon findings by a judge of the Circuit Court for Montgomery County, Maryland, that respondent had violated several Maryland Rules of Professional Conduct in connection with his work on two separate personal injury matters. Id. at 766–76. In connection with one matter, his representation of Miller and Pearson, respondent was found to have violated Maryland Rules of Professional Conduct 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.16 (Terminating Representation), and 8.4 (Misconduct). 11 A.3d at 768–70. In the other matter, the representation of Barrie, respondent was found to have violated many of the same rules. Id. at 772–74.For a convenient summary of respondent's misconduct, a portion of the Board's report is included in the following paragraphs.1 Additional details are available in the opinion of the Maryland Court of Appeals.
Respondent undertook the representation of two individuals, Ronnie E. Miller and David A. Pearson, who were involved in an automobile accident. He filed a complaint in March 2004 without obtaining a copy of the accident report and sent the summons to the wrong address for the defendant.2 Both Mr. Miller and Mr. Pearson notified him that he had the wrong address, but Respondent did not correct the information.
In October 2004, the court sent Respondent a notice stating that the complaint was subject to being dismissed for lack of service. Respondent maintains that he never received the notice, but he never checked with the Court to determine the status of the case. The case was dismissed in December 2004. In 2006, Respondent twice attempted to re-serve the defendant, notwithstanding that the case had been dismissed. However, he never obtained the correct address and service was never effected. In addition to these difficulties, the Circuit Court found that Respondent failed to return his clients' telephone calls. When Mr. Miller finally managed to reach him, Respondent told Mr. Miller that “We've already been to court,” and terminated the call abruptly on the grounds that his voice was sore from having been in court. [Attorney Grievance Comm'n of Maryland v. Fox, 417 Md. 504, 11 A.3d 762, 767 (Md.2010)].
Mr. Pearson learned that his case had been dismissed in 2007, after he had retained a new attorney. Mr. Miller learned that the case had been dismissed in 2008, after he too had retained new counsel. When contacted by Mr. Pearson's new counsel, Respondent told him that he was trying to find the defendant and was waiting for the judge to give him a court date.3 Subsequently, when asked by Mr. Miller to attempt to have the dismissal set aside, Respondent refused to act on the grounds that Mr. Miller had retained new counsel. The Circuit Court found that, due to Respondent's delays, the “possibilities of reviving the case, or recovering damages for Miller and Pearson, are now seemingly lost forever as a result of Respondent's lack of attention and care to this matter.” Id. at 768.
The Circuit Court held, inter alia, that Respondent had done “nothing to pursue the case of his clients,” “failed to diligently carry out the case that he had initiated,” “failed to keep himself reasonably informed about” its status, “failed to keep his clients properly informed” and “engaged in misrepresentation when he told Miller, ‘We've already been to court.’ ” 4Id. at 768–70. It concluded that he had violated Maryland Rules 1.1 (competence); 1.2 (failure to abide by client's decisions as to objectives); 1.3 (diligence); 1.4 (failure to communicate); 1.16 (failure to protect client interests on termination); 8.4(a) (violating Maryland Rules of Professional Conduct); and 8.4(c) (misrepresentation).
In the second case, Respondent was retained by Mr. Abdul M. Barrie who was injured in an automobile accident. Since the driver of the vehicle that struck Mr. Barrie was uninsured, Respondent filed an uninsured motorist claim against Mr. Barrie's carrier, GEICO. In January 2002, GEICO sent Respondent five checks totaling $2,506.30 to cover Mr. Barrie's medical expenses—PIP payments. When GEICO advised Respondent that Mr. Barrie had exhausted his PIP payments, Respondent notified GEICO that he had not received the checks. The checks were never negotiated. GEICO reissued these five checks six times from August 2002 through February 2006, in addition to four checks issued in October 2006 and five more in May 2007. None of those checks were ever negotiated, either. In May 2003, GEICO issued a check in the amount of $5,825 in settlement of the uninsured motorist claim. Respondent never obtained Mr. Barrie's consent to the settlement and, indeed, he never told Mr. Barrie about it. That check was also never negotiated. The Circuit Court found that none of the approximately 50 checks that GEICO issued and sent to Respondent was ever negotiated.
Respondent was unable to explain what happened to the GEICO checks. His system for keeping records as to the status of cases and the receipt of funds was crude and failed in this instance. While he testified that he thought his mail was being stolen, he never took any steps to obtain a P.O. Box or otherwise assure that he received his mail.
Mr. Barrie learned of the settlement when he retained new counsel in 2008 after he was sued by a medical provider for non-payment of medical bills incurred as a result of the accident. In July 2008, nearly six years after the initial checks were issued, GEICO sent Mr. Barrie's new counsel new checks for the PIP payments and the settlement. Mr. Barrie's new counsel gave them to Mr. Barrie.
Mr. Barrie testified that he had difficulty in reaching Respondent, that his telephone calls often were not returned and that when he went to Respondent's office, he was told that Respondent was not available. Respondent also did not return Mr. Barrie's new counsel's telephone calls or correspondence.
In May 2008, Maryland Bar Counsel commenced an investigation of Respondent in response to Mr. Barrie's complaint. Respondent delayed responding to Bar Counsel's request for a response to Mr. Barrie's complaint and was, in general, uncooperative. For example, Respondent told Bar Counsel's investigator that Mr. Barrie's file was in storage and “that it was too hot for Respondent to get the file, because there was no air conditioning at the storage location.” Id. at 772. He subsequently advised Bar Counsel that the file was actually in his office, but that the office had flooded and he needed more time. Approximately six weeks after promising to produce the file, Respondent finally mailed a copy to Bar Counsel.
The Circuit Court concluded that Respondent had “abandoned Barrie and his case by failing to follow up on whether the PIP and settlement checks” had been sent; by not communicating adequately with Mr. Barrie; by “fail[ing] to adequately consult with Barrie about the settlement”; and that he “was uncooperative with the Office of Bar Counsel.” Id. It held that he violated Rules 1.1 (competence); 1.2(a) (); 1.3 (diligence); 1.4 (failure to communicate); 1.16 (failure to protect client interests on termination); 8.1(b) (); 8.4(a) (violating Maryland Rules of Professional Conduct); and 8.4(d) ().
On remand from the Court of Appeals to address Respondent's mitigation claims, the Circuit Court rejected all but one. It found that he was not remorseful as he had not taken any corrective actions and maintained throughout the hearing that he had not violated any rules; that his health problems did not extend over the period of years covered by these matters and thus did not excuse his misconduct; that the flooding of his office did not mitigate his failure to cooperate with Bar Counsel and that his dealings with Bar Counsel “demonstrated the same careless attitude that Respondent showed towards the cases of Miller, Pearson, and Barrie.” Id. at 774–76. The Circuit Court did give him credit for updating his manual calendar and case tracking system to a computerized system, but held that effort insufficient to warrant mitigation.
On appeal, the Maryland Court rejected each of Respondent's exceptions to the Circuit Court's findings of fact and conclusions of law, including the Circuit Court's mitigation conclusions. Id. at 776–84. The Court of Appeals held that, under its decision in Attorney Grievance Comm'n v. Kwarteng, 411 Md. 625 [652], 984 A.2d 865 (2009), Respondent's neglect to the point of abandonment, misrepresentation, and failure to cooperate with Bar Counsel warranted disbarment. Fox, 11 A.3d at 785.
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