Barbera, C.J.
Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, attorney David Eugene Bocchino,
On October 1, 2012, this Court designated the Honorable M. Elizabeth Bowen of the Circuit Court for Howard County ("the hearing judge") to conduct an evidentiary hearing and file written findings of fact and conclusions of law pursuant to Maryland Rules 16-752(a) and 16-757(c). Judge Bowen held the hearing on January 29, 2013. She then filed her Statement of Findings of Fact and Conclusions of Law with this Court on April 10, 2013, concluding by clear and convincing evidence that Respondent violated MLRPC 1.1; 1.3; 1.4(a) and (b); and 8.4(a), (c), and (d) with respect to the Embreys, and MLRPC 1.1; 1.3; 5.5(a); and 8.4(a) and (d) with respect to Ms. Cleaves.
Based on the evidence accepted at the January 29, 2013, hearing, the hearing judge set forth the following findings of fact:
Respondent has been a member of the Bar of this Court since December 16, 1997. He practiced for a short time at a small private law firm before joining the Office
In 2009, Respondent assumed an "of counsel" position at the Ohio law firm of Kahn & Associates ("Kahn"), in which he represented the firm's clients in "lemon lawsuits"
On October 27, 2009, the same day he entered his appearance, Respondent filed a Line to Enter Change of Address from Kahn's Ohio mailing address to 205 E. 28th Street, Baltimore, MD 21218. Within a month of entering his appearance, Respondent moved his office from the 28th Street location in Baltimore to his home in Abingdon. As a result, he began to employ P.O. Box 347, Abingdon, MD 21009 as his professional mailing address.
Respondent had not filed a second Line to Enter Change of Address with the Circuit Court. The attorney for GM in this matter, Barbara Duvall, acted as opposing counsel on numerous other unrelated cases with Respondent during this period and, as a consequence, was aware of his new mailing address. She thus addressed all correspondence in the Embreys' case to the Abingdon address and had all filings served there.
On November 13, 2009, Duvall mailed to Respondent interrogatories, a request for production of documents, and a request for admissions of fact. On December 16, 2009, the day on which responses were due, Respondent sent Duvall an email requesting an extension. Duvall consented to that request. Respondent, however, did not provide discovery by the date to which they had agreed. On January 12, 2010, Duvall sent to Respondent via email and regular mail a reminder that the extended deadline had passed, informing him that she would file a Motion to Compel Discovery if he did not provide responses by January 26, 2010. Respondent did not provide discovery, and on January 29, 2010, Duvall filed her Motion to Compel. Respondent filed no response to Duvall's motion. The Circuit Court granted the Motion to Compel on March 3, 2010, entering an order requiring an answer to discovery by March 8, 2010. Respondent never filed any discovery in the matter.
The October 5 Scheduling Order set December 12, 2009, as the deadline by which Respondent was to designate an expert witness in the Embreys' case. In a February 2, 2010, email to Duvall, Respondent admitted that he had failed to designate an expert witness in compliance with the Order. He requested an extension, to which Duvall did not acquiesce. On March 1, 2010, citing Respondent's failures to provide discovery and to designate an expert witness, GM filed a Motion for Summary Judgment. Respondent filed no opposition to the motion.
On March 12, 2010, Duvall filed a Motion for Sanctions, to which Respondent filed no opposition. On April 1, 2010, the Circuit Court granted the motion, dismissed the Embreys' case with prejudice, and assessed against the Embreys GM's attorney's fees and costs.
On June 7, 2010, Respondent filed a Motion to Vacate Judgment Due to Fraud, Mistake, or Irregularity. In the motion, Respondent stated that, because of his change of address, he "never received documentation of any kind from the court and only a few of Defendant's filings," and he cited this as the reason the court should vacate the dismissal.
When Kahn re-assigned the Embreys' case to Respondent, the firm informed Ms. Embrey and gave her Respondent's contact information. Respondent and Ms. Embrey communicated over email on October 13, 2009, regarding whether Ms. Embrey should take her car to an automobile mechanic for service, but Respondent did not contact her again until the end of January 2010. Although Ms. Embrey offered contradictory testimony about the extent of her attempts to contact Respondent during this period, Respondent testified that there was no great need for communication over those months. The hearing judge, however, found this three-month period to be a critical one, requiring client input for the purposes of responding to discovery, scheduling the court-ordered mediation, and giving an expert the opportunity to inspect the Embreys' car.
After the depositions on February 15, 2010, at which she learned that Respondent had failed to provide responses to GM's interrogatories, Ms. Embrey contacted Respondent frequently via telephone and email to request information about the status of her case. The hearing judge found that Respondent did not respond to these requests to his client's satisfaction.
Respondent admitted that he did not inform the Embreys of his failure to designate an expert witness or provide discovery, nor of GM's Motions to Compel Discovery, for Summary Judgment, and for Sanctions. He did inform Ms. Embrey that they had missed the court-ordered mediation, but later told her, incorrectly, that this was the reason her case had been dismissed. After the Circuit Court denied the Motion to Vacate, Respondent assured Ms. Embrey that he would file a Motion for Reconsideration, but he never did so.
Respondent also failed to communicate to the Embreys GM's repeated requests for a settlement demand. The hearing judge found this failure of communication to be incompetent given Respondent's acknowledgment
Based upon these factual findings, the hearing judge concluded that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); and 8.4(a), (c), and (d) (misconduct). The hearing judge explained her conclusions, as follows:
In April 2009, Respondent answered a Craigslist advertisement regarding the closure of the law practice of Ralph Byrd, whom this Court disbarred on April 14, 2009. See Attorney Grievance Comm'n v. Byrd, 408 Md. 449, 970 A.2d 870 (2009). At their first meeting Respondent learned of Byrd's disbarment, but, notwithstanding this knowledge, entered into a professional relationship with him wherein Respondent would act as counsel of record for Byrd's clients in exchange for Byrd's mentorship in the law of debt collection and Byrd's promise to refer clients to Respondent in the future. Respondent was to share in none of Byrd's fees.
On April 16, 2009, two days after his disbarment, Byrd sent a proposed retainer agreement to Lily Cleaves, who was a defendant in a credit card debt collection action brought by Pasadena Receivables, Inc. ("Pasadena"). Ms. Cleaves returned the signed retainer on April 22, 2009, agreeing to be represented by "one of our affiliated attorneys." At this time, Ms. Cleaves paid Byrd $3,000 in attorney's fees, which he deposited in his own attorney trust account.
In May 2009, Byrd obtained from Ms. Cleaves her signature on a pro se Demand for Jury Trial, which he subsequently filed, to transfer her case from the District Court of Maryland in Montgomery County to the Circuit Court for Montgomery County. Respondent entered his appearance in the case on June 15, 2009. Respondent never sent Ms. Cleaves a letter notifying her that he was assuming the representation, and the two did not enter into a separate retainer agreement. Respondent testified that it was his general practice when taking over Byrd's cases to conduct a telephone conference call with Byrd and the client, during which Byrd would explain that Respondent was his "subsequent counsel." Respondent testified that he believed he had followed this practice with Ms. Cleaves. The hearing judge did not seem to credit this testimony, referring to Respondent's "vague belief" that he participated in a conference call with Ms. Cleaves.
On June 15, 2009, Respondent filed a general denial in response to Pasadena's complaint. In his answer, he did not assert the defense of lack of authority to sue in a representative capacity. Respondent later characterized this decision as one of "trial strategy." On July 15, 2009, Pasadena filed a Motion for Summary Judgment. Respondent did not file timely an opposition but did file a Motion to Excuse Late Filing, stating that he had been away on vacation.
On April 21, 2010, Respondent noted an appeal to the Court of Special Appeals. His notice of appeal, however, did not include the information report required by Maryland Rule 8-205(b). The Court of Special Appeals issued a Show Cause Order directing Respondent to file the information report or offer an explanation as to why his appeal should not be dismissed, but he did neither.
When he took over Ms. Cleaves's case, Respondent did not arrange to transfer the attorney's fees she had paid to Byrd from Byrd's attorney trust account to his own. As Respondent prepared to note the appeal to the Court of Special Appeals, Byrd recognized the impropriety of drawing the filing fee from his own account and so transferred to Respondent the $190 Ms. Cleaves had sent to him for that purpose.
On November 23, 2010, the Circuit Court granted a writ of garnishment to enforce Pasadena's judgment against Ms. Cleaves. Ms. Cleaves stated in a pro se Motion and Declaration to Vacate Judgment she filed on March 28, 2012, that she was not aware Respondent was her attorney until her wages were garnished.
Although Respondent testified that he in no "way, shape, or form asked or allowed Mr. Byrd to practice law with" him, the hearing judge found that their correspondence during the pendency of Ms. Cleaves's case reveals that Byrd assisted Respondent in drafting and filing court documents. For example, in preparing Ms. Cleaves's Motion for Reconsideration on the evening of November 5, 2009, Respondent sent Byrd a draft via email, requesting proposed changes. Three hours later, Byrd replied to the email stating that he had "[m]odified it a little and filed it." Although Byrd afforded Respondent no opportunity to review what he filed in the Circuit Court under Respondent's own name, Respondent did not admonish Byrd in any way for this conduct nor did he restrict Byrd's participation in the matter going forward.
Based upon these factual findings, the hearing judge concluded that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 5.5(a) (unauthorized practice of law); and 8.4(a) and (d) (misconduct). The hearing judge explained her conclusions, as follows:
The hearing judge did not sustain Petitioner's allegations of violations of 1.4 and 1.15. She explained her conclusions, as follows:
As a result of his military service in the Gulf War, Respondent suffers from post-traumatic stress disorder and depression. He presented as mitigation evidence a disability report prepared in 2008 by his psychiatrist, Dr. C. William Hicks, III, who believed that, at that time, Respondent was "unable to engage productively in his work as an attorney for the State of Maryland. His diminished concentration, [an extreme lack of energy], markedly diminished motivation and poor self esteem, all would contribute to a recurrence of his poor work performance." With respect to the future, it was Dr. Hicks's "reasonable clinical expectation that if [Respondent] were to continue treatment, [he] would be able to return to gainful employment."
Respondent testified that during the period at issue in these proceedings, his "overwhelming feelings of worthlessness and helplessness" manifested themselves in "things ... slip[ping] through the cracks." He "wouldn't correct [his mistakes]," he testified, because he "wouldn't know where to start to correct them."
The hearing judge made the following mitigation finding:
In attorney discipline proceedings, this Court "has original and complete jurisdiction and conducts an independent review of the record." Attorney Grievance Comm'n v. Page, 430 Md. 602, 626, 62 A.3d 163 (2013) (citing Attorney Grievance Comm'n v. Jarosinski, 411 Md. 432, 448, 983 A.2d 477 (2009)). We accept the hearing judge's findings of fact as "correct unless shown to be clearly erroneous." Attorney Grievance Comm'n v. Lara, 418 Md. 355, 364, 14 A.3d 650 (2011) (citing Attorney Grievance Comm'n v. Palmer, 417 Md. 185, 205, 9 A.3d 37 (2010)). We review de novo the hearing judge's conclusions of law. Md. Rule 16-759(b)(1); Page, 430 Md. at 626, 62 A.3d 163. The ultimate decision as to whether an attorney has engaged in professional misconduct lies with this Court. Attorney Grievance Comm'n v. Joehl, 335 Md. 83, 88, 642 A.2d 194 (1994).
When a party files exceptions to the hearing judge's findings of fact, those exceptions will be overruled so long as the findings are not clearly erroneous. Attorney Grievance Comm'n v. Manger, 396 Md. 134, 146, 913 A.2d 1 (2006) (citation omitted). When a party takes exception to the hearing judge's conclusions of law, those exceptions will be overruled so long as the conclusions are supported by the facts found. Manger, 396 Md. at 146-47, 913 A.2d 1.
Respondent filed eight exceptions to the hearing judge's findings of fact and conclusions of law. We address these exceptions in turn.
Respondent's first exception concerns the hearing judge's factual finding that he "incorrectly" stated in the Embreys' Motion to Vacate the date on which he filed his Line to Enter Change of Address. Respondent characterizes this error as "an obvious typographical one" that cannot support a conclusion that he attempted to mislead the Circuit Court. Insofar as Respondent challenges the hearing judge's characterization of his statement as "incorrect," this factual finding is clearly supported by the record: Respondent filed his Line to Change Address on October 27, 2009, and stated in the Motion to Vacate that he filed it on October 27, 2010. If Respondent's exception represents a challenge to the hearing judge's reliance on this incorrect statement in concluding that he made misrepresentations to the court in violation of MLRPC 8.4(c), it is not clear that the hearing judge did rely on this fact. The judge enumerated two misrepresentations Respondent made to the court in the Motion to Vacate, but did not include this statement on that list. Accordingly, this exception is overruled.
Respondent's next exceptions concern the hearing judge's conclusion that he violated MLRPC 1.4(a) and (b). Specifically, he excepts to the hearing judge's findings that he "repeatedly failed to inform [the Embreys] of important developments in their case" and failed to "adequately respond" to Ms. Embrey's requests for information.
Respondent first contends that there was no need for him to communicate with the Embreys "for certain periods of time," but maintains that he did inform them of the pendency of discovery and discuss with them the scheduling of depositions and mediation. The record belies Respondent's assertion that he kept the Embreys apprised of significant developments in the case as they occurred. Although Respondent was not required to inform his clients of each passing pre-trial deadline, he needed to inform the Embreys of missed deadlines that carried potential adverse consequences, the action he was taking to avoid such consequences, and any negative consequences that did come to pass. His failure to observe discovery deadlines resulted in GM's filing a dispositive motion. This was a significant development in the case, but it was not until late April that Respondent informed Ms. Embrey that GM had moved for dismissal, which, by that point, the court had granted. This constitutes a failure to "keep the client reasonably informed about the status of the matter." MLRPC 1.4(a)(2). Consequently, we overrule Respondent's exception.
Respondent next asserts that he "did in fact respond to the client." Instead of offering support for this assertion, he attempts to shift the blame onto the client, characterizing Ms. Embrey's attempts to contact him as "border[ing] on harassment." We, however, direct our focus squarely on Respondent's conduct.
Respondent admits to refusing to speak with Ms. Embrey on the telephone. Over email he was no more responsive. After the February 15, 2010, depositions, at which she learned that Respondent had failed to provide responses to GM's interrogatories, Ms. Embrey began sending Respondent emails seeking reassurance that he was paying proper attention to her case, but he did not reply to these messages.
Respondent further excepts to the hearing judge's factual finding that he failed to communicate opposing counsel's requests for a settlement demand to his clients. This finding is clearly supported by the record, chiefly Respondent's own admission that he made a deliberate decision not to engage in settlement discussions. Respondent did not articulate this challenge as an exception to the hearing judge's legal conclusion that his failure to convey the request for settlement demand amounts to a violation of MLRPC 1.4. If, however, this was his intention, we would overrule such an exception. Though he describes his decision as a "typical defense strategy in litigation," his failure to relay to his clients GM's request regarding settlement implicates the Embreys' ability to "make informed decisions regarding the representation." MLRPC 1.4(b). It may well have been a valid strategy not to present to GM the amount for which the Embreys would have settled their lawsuit, but Respondent was duty-bound to inform his clients that GM sought to engage in settlement negotiations. We therefore overrule this exception.
Respondent's fifth and sixth exceptions concern the hearing judge's legal conclusion that he violated MLRPC 8.4(c). He first excepts to the hearing judge's conclusion that he made a misrepresentation to the court when he stated in his Motion to Vacate that he "never received documentation of any kind from the court and only a few of Defendant's filings." Respondent claims that this statement was "a truthful one." Because he failed to file a Line notifying the court of his Abingdon address, despite his mistaken belief that he or Kahn had done so, all court notices went to his Baltimore address and needed to be forwarded by the Postal Service. He therefore claims he "received none of them in a timely fashion." Similarly, while GM sent communications to his Abingdon address,
The hearing judge correctly concluded that this was a false representation in violation of MLRPC 8.4(c). Respondent stated in the Motion to Vacate that he "never" received court documents. He now asserts in his exceptions that he received none of them "in a timely fashion." Respondent further stated in the Motion to Vacate that he received "only a few of Defendant's filings," but admitted during this attorney discipline proceeding that he was aware of every pleading GM filed. The record reflects that Respondent knew of each deadline in the Embreys' case. His language in the Motion to Vacate, however, suggests to the court that he did not comply with the Scheduling Order because the inefficiency of the Postal Service left him unaware of his obligations. This amounts to misrepresentation.
Respondent next excepts to the hearing judge's conclusion that he made a misrepresentation to the court when he stated in the Motion to Vacate that he did not become aware of the dismissal of his clients' case until May 2010. He now states that the date on which he became aware of the judgment is "unknown," and argues that the hearing judge should not have viewed this "failure to recall the exact timing" as an attempt to mislead the court. Respondent's own correspondence, however, demonstrates that he knew of the judgment on April 20, 2010, at the latest. Whether a "failure to recall the exact timing" or "an attempt to mislead the court," his statement about the date on which he became aware of the dismissal is a misrepresentation. Consequently, we overrule Respondent's exceptions and sustain the hearing judge's conclusion that he violated MLRPC 8.4(c).
Respondent's seventh exception concerns the hearing judge's factual finding that Byrd conducted all client contact in Respondent's representation of Ms. Cleaves. Specifically, Respondent challenges the hearing judge's partial reliance upon Ms. Cleaves's statement in her pro se Motion and Declaration to Vacate that she "had never been contacted by Mr. Bocchino." Ms. Cleaves did not testify at Respondent's hearing, and Respondent argues that the hearing judge's acceptance of her statement in the absence of an opportunity for cross-examination violates his due process rights.
Even without Ms. Cleaves's motion, the record supports a finding that Byrd did conduct all client contact in this matter. At his deposition in these proceedings, when Bar Counsel asked whether he had informed Ms. Cleaves in writing that he would be acting as Byrd's subsequent counsel, Respondent testified,
When Bar Counsel asked whether such a conference call took place with Ms. Cleaves, Respondent testified, "I believe it did, but I can't say with 100 percent certainty that we did that, but that was almost always what we did, so I'm assuming that we did also do that with Ms. Cleaves, yes."
Finally, Respondent excepts to the hearing judge's legal conclusion that he assisted Byrd in the unauthorized practice of law, in violation of MLRPC 5.5(a). The hearing judge found that, upon entering his appearance, Respondent should have reviewed the file in Ms. Cleaves's case, which would have led him to the conclusion that Byrd had not earned any fees in the case prior to his disbarment. It was Respondent's "willful disregard of the facts in front of him," the hearing judge stated, that allowed Byrd "to continue to function as an attorney." Respondent argues that it is "unfair and unreasonable ... to hold [him] responsible" for Byrd's conduct prior to the moment when Respondent entered his appearance in Ms. Cleaves's case. He contends that he did not allow Byrd to continue to practice law.
The record reveals that Respondent indeed assisted Byrd in his unauthorized practice of the law. "The goal of the unauthorized practice statute is achieved, in general, by emphasizing the insulation of the unlicensed person from the public and from tribunals such as courts...." In re Application of R.G.S., 312 Md. 626, 638, 541 A.2d 977 (1988). To the extent it was within his power, Respondent failed to insulate either the court or Ms. Cleaves from Byrd.
Essentially, Respondent allowed Byrd to practice in the Circuit Court under Respondent's license. After Pasadena filed its Motion for Summary Judgment, Respondent emailed Byrd on August 6, 2009, requesting a template of a memorandum in opposition, stating "I can do the drafting on the motion." Byrd replied, "I will prepare it and file it." Respondent presented no evidence that he instructed Byrd not to do so, and this type of conduct recurred. After the court granted summary judgment in favor of Pasadena, Byrd directed Respondent in an email which arguments he should include in the Motion for Reconsideration. Respondent drafted the motion and sent it to Byrd that night, along with the message, "Take a look at what I've written and see if it makes sense to you. Get back to me if you think it needs modification or change." Instead of responding with suggestions, Byrd replied, "Modified it a little and filed it." Respondent presented no evidence that he reproached Byrd for taking this action. He thus allowed Byrd to draft, edit, and file pleadings submitted under Respondent's name.
With respect to the client, Respondent stood by as Byrd held himself out to Ms. Cleaves as her attorney. Respondent did not enter into a separate retainer agreement with Ms. Cleaves, and Byrd continued to conduct all client contact, as discussed supra. These facts support the conclusion that Respondent assisted Byrd in his unauthorized practice of law, in violation of MLRPC 5.5(a), and we therefore overrule Respondent's eighth and final exception.
We now turn to the sanction for Respondent's professional misconduct. Maryland Rule 16-759(c) lists the dispositions the Court of Appeals may order: "(1) disbarment, (2) suspension, (3) reprimand, (4) inactive status, (5) dismissal of the disciplinary or remedial action, or (6) a remand for further proceedings." Petitioner recommends, pursuant to Maryland Rule 16-758(b), indefinite suspension as the proper sanction in the present case, citing the proposition that while persistent client neglect may be grounds for disbarment, if such conduct is committed by an attorney suffering from a disability, a lesser sanction may be warranted. Respondent recommends a public reprimand, along with a practice monitor and "periodic reports of his psychiatric conditions to Bar Counsel from his service providers."
In determining the appropriate sanction, we bear in mind that the purpose of a sanction is not to punish the delinquent attorney, but to protect the public's confidence in the legal profession. Attorney Grievance Comm'n v. Zimmerman, 428 Md. 119, 144, 50 A.3d 1205 (2012); see also Attorney Grievance Comm'n v. Bleecker, 414 Md. 147, 176, 994 A.2d 928 (2010). "The severity of the sanction depends on the circumstances of each case, the intent with which the acts were committed, the gravity, nature and effect of the violations, and any mitigating factors." Attorney Grievance Comm'n v. Ward, 394 Md. 1, 33, 904 A.2d 477 (2006) (citing Attorney Grievance Comm'n v. Parker, 389 Md. 142, 155, 884 A.2d 104 (2005)).
The gravamen of Respondent's misconduct is his incompetence, lack of diligence, and failure to communicate with his clients. "[L]ack of communication with one's client, for whatever reason, is a matter of continuing concern to the public. Moreover, this Court has consistently regarded neglect and inattentiveness to a client's interests to be [an ethical violation] warranting the imposition of some disciplinary sanction." Attorney Grievance Comm'n v. Mooney, 359 Md. 56, 76, 753 A.2d 17 (2000) (quoting Attorney Grievance Comm'n v. Montgomery, 296 Md. 113, 120, 460 A.2d 597 (1983)). Indeed, this Court takes a dim view of such conduct:
Attorney Grievance Comm'n v. Manning, 318 Md. 697, 704-05 [569 A.2d 1250] (1990) (quoted in Attorney Grievance Comm'n v. Wallace, 368 Md. 277, 291-92 [793 A.2d 535] (2002)).
Respondent violated other of his professional duties, also. "Candor and truthfulness are two of the most important moral character traits of a lawyer." Attorney Grievance Comm'n v. Myers, 333 Md. 440, 449, 635 A.2d 1315 (1994). For that reason, "[c]onduct involving fraud, dishonesty, or deceit will ordinarily result in disbarment." Attorney Grievance Comm'n v. Ross, 428 Md. 50, 86, 50 A.3d 1166 (2012) (citing Attorney Grievance Comm'n v. Keiner, 421 Md. 492, 523, 27 A.3d 153 (2011)). Dishonesty is not the flagship violation in Respondent's case, however. Although he did make misrepresentations to the Circuit Court for Frederick County in the Motion to Vacate he filed on behalf of the Embreys, Respondent did not engage in a "pattern of ... deceitful conduct over an extensive period of time." Attorney Grievance Comm'n v. Lane, 367 Md. 633, 647, 790 A.2d 621 (2002) (holding that disbarment was the appropriate sanction for an attorney's "repeated material misrepresentations").
Finally, Respondent violated his duty not to assist in the unauthorized practice of law.
Attorney Grievance Comm'n v. Brennan, 350 Md. 489, 501-02, 714 A.2d 157 (1998) (Wilner, J.).
We have found that mitigation includes the following:
Attorney Grievance Comm'n v. West, 378 Md. 395, 412-13, 836 A.2d 588 (2003) (quoting Attorney Grievance Comm'n v. Thompson, 367 Md. 315, 330, 786 A.2d 763 (2001)).
The hearing judge found that Respondent suffered from depression, anxiety, and post-traumatic stress disorder while representing his clients in these matters. In cases where there has been a finding that the attorney suffered from a serious mental or physical illness, this Court "rarely impose[s] the ultimate sanction
