The opinion of the court was delivered by: Harrell, J.
Attorney Grievance Commission of Maryland v. Robert Weston Mance, III,
Misc. Docket AG No. 27, September Term, 2012
ATTORNEY DISCIPLINE - RECIPROCAL ACTION - CORRESPONDING SANCTION
IN THIS RECIPROCAL DISCIPLINARY SANCTION INVOLVING PROFESSIONAL MISCONDUCT OCCURRING IN THE DISTRICT OF COLUMBIA, WHERE RESPONDENT NEGOTIATED A DISPOSITIONARY SANCTION OF A SIX-MONTH SUSPENSION WITH REINSTATEMENT CONDITIONED ON PROOF OF FITNESS AND RESTITUTION, THE CORRESPONDING SANCTION IN MARYLAND IS AN INDEFINITE SUSPENSION, WITH THE RIGHT TO APPLY FOR REINSTATEMENT IN MARYLAND UPON RESPONDENT'S UNCONDITIONAL REINSTATEMENT IN THE DISTRICT OF COLUMBIA.
Bell, C.J., Harrell, Battaglia, Greene, Adkins, Barbera, McDonald, JJ.
In this reciprocal attorney discipline case, the Attorney Grievance Commission of Maryland ("AGC"), through Bar Counsel, asks this Court to suspend indefinitely Robert Weston Mance, III, with the right to apply for reinstatement in Maryland only after he is reinstated to the Bar of the District of Columbia. The District of Columbia Court of Appeals, in a per curiam opinion and order of 26 January 2012 triggering the present proceeding, suspended Mance for six months and conditioned his reinstatement in the District of Columbia ("D.C.") on: (1) proof of fitness, as determined according to the D.C. Rules; and
(2) restitution to his clients or the D.C. client security trust fund. By per curiam order of 3 December 2012, we determined that corresponding discipline in Maryland should be that Mance be suspended indefinitely in Maryland (effective upon the date of our order), with the right to apply for reinstatement no sooner than when he is readmitted unconditionally in the District of Columbia. This opinion explains our reasons for the 3 December 2012 order.
PROCEDURAL AND FACTUAL BACKGROUND
On or about 29 August 2011, the Office of Bar Counsel for the District of Columbia and Mance (who was represented by counsel) executed and filed jointly with the D.C. Court of Appeals's Board on Professional Responsibility a Petition and Affidavit of Negotiated Discipline. The filing embraced four docketed cases brought by D.C. Bar Counsel against Mance. A synopsis of the Petition's representations as to each case is as follows:
Leonard Garrett (Complainant)
(Bar Docket No. 2009-D247)
Garrett hired Mance in August 2003 to represent him in a governmental employment termination action. Garrett paid Mance $1,500 in cash and an additional $3,000 by cashier's
check, for which Mance issued no receipt. There was no written retainer letter or other writing setting out the fee arrangement. When the matter found its way to the D.C. Superior Court, on Garrett's request for judicial scrutiny of his firing, Mance failed ultimately to file a timely brief on Garrett's behalf or to seek an extension of time in which to file. Mance failed also to respond to a subsequent show cause order inquiring why dismissal of the case should not occur for a failure to prosecute. The case was dismissed. Mance took no further action to protect his client's interests, despite having agreed to do so in response to Garrett's request that he do so.
After Garrett filed a complaint against him with D.C. Bar Counsel, Mance and Garrett entered into an agreement on 25 August 2009 wherein Mance agreed to refund $4,500 to Garrett (the full amount of the initial fee paid) and to pay him (within 15 months) an additional $15,000 in settlement of their dispute over Mance's handling of the representation. Prior to Garrett's execution of the agreement, Mance failed to advise Garrett to obtain the advice of independent counsel or to supply sufficient information to enable Garrett to give informed consent to the settlement. Mance, after making two payments totaling $900 in 2009, failed to make further payments on the settlement agreement.
Bar Counsel went forward with its investigation of Garrett's complaint, determining ultimately that Mance's conduct violated the following D.C. Rules of Professional Conduct: 1.1(a) (failed to provide competent representation); 1.1(b) (failed to serve a client with skill and care); 1.3(a) (failed to represent a client zealously and diligently within the bounds permitted by law); 1.5(b) (failed to provide a client a writing stating the rate or basis of the fee); and 1.8 (entered into a business transaction with a client that did not come within any exception to the Rule).
Wilmer Riley (Complainant) Bar Docket No. 2009-D369
Riley retained Mance in March/April 2009 to represent him in an action to recover damages for injuries to his improved real property in D.C. Mance filed suit in the D.C. Superior Court on 4 May 2006. During 2008, Mance failed to respond to a defendant's request for production of documents, despite being ordered to do so by the court and despite the requested documents having been delivered to him by Riley. The defendant moved for sanctions. Mance did not respond. The court granted, as a sanction for Mance's failure to supply discovery, that Riley, at trial, could not testify, present evidence as to damages, or offer any exhibits. Mance did not move to vacate or reconsider the sanction order. An additional defendant moved for summary judgment, which Mance did not oppose. The court granted summary judgment to that defendant, dismissed the claims against the remaining defendants, and vacated the trial date.
Although Mance filed an appeal, he neglected to advise Riley of the potential conflict of interest between Riley's interests and Mance's earlier failure to act on Riley's behalf in the trial court. Mance did not advise Riley to seek the advice of independent counsel.
In his appellate brief, Mance maintained that he did produce the requested documents to the opposing counsel in the trial court, albeit four days after the trial court's deadline. Unfortunately for him, Mance had represented previously, in a copy of a supposed
"Emergency Motion to Vacate [The Trial Court's] July 8, 2008 Order [Imposing Sanctions]" (supplied by him to D.C. Bar Counsel during its investigation of Riley's complaint) that the date he produced allegedly the requested documents to opposing counsel was a different day than he claimed in his appellate brief. In any event, Mance never filed the "Emergency Motion" in the trial court, never produced a receipt for the purported document production, never filed a certificate of discovery to like ...