Circuit Court for Montgomery County Case No.: 27111-M
The opinion of the court was delivered by: Greene, J.
Attorney Grievance Commission of Maryland v. Alfred Amos Page, Jr.
Misc. Docket AG No. 70, September Term, 2011
ATTORNEY DISCIPLINE - An attorney's intentional misrepresentation of facts to his client, to this Court in statements contained in a Petition for Reinstatement, and to Bar Counsel during the course of a disciplinary investigation, coupled with the misappropriation of client funds, are acts infected with deceit and dishonesty and ordinarily will result in disbarrment in the absence of compelling extenuating circumstances justifying a lesser sanction. Under the circumstances, Respondent's violation of MLRPC 1.1; 1.3; 1.4(a) and (b); 1.15(a) and (c); 1.16(a) and (d); 5.5(a), (b)(1) and (b)(2); 3.3(a)(1); 8.1(a); and 8.4(a),(c) and (d), warrants the sanction of disbarrment.
Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ.
The Attorney Grievance Commission of Maryland ("Petitioner"), acting pursuant to Maryland Rule 16-751(a), filed a "Petition For Disciplinary Or Remedial Action" against Alfred Amos Page, Jr. ("Respondent" or "Page"), on January 20, 2012, and an "Amended Petition For Disciplinary Or Remedial Action," on April 4, 2012. Initially, Petitioner charged Respondent, stemming from his representation of Pamela Jackson ("Ms. Jackson"), with violating various Maryland Lawyers' Rules of Professional Conduct ("MLRPC"*fn1 or "Rule"), including Rule 1.1 (Competence)*fn2 ; Rule 1.3 (Diligence)*fn3 ; Rule 1.4(a) and (b) (Communication)*fn4 ; Rule 1.15(a) and (c) (Safekeeping Property)*fn5 ; Rule 1.16(a) and (d)
(Declining or Terminating Representation)*fn6 ; Rule 5.5(a) and (b) (Unauthorized Practice of Law; Multijurisdictional Practice of Law)*fn7 ; and Rule 8.4(a), (c) and (d) (Misconduct)*fn8 . In the amended petition, Bar Counsel charges Respondent made false representations in his "Petition for Reinstatement" to this Court and violated Rule 3.3(a)(1) (Candor Toward the Tribunal)*fn9 ; Rule 8.1(a) (Bar Admission and Disciplinary Matters)*fn10 ; and Rule 8.4(a), (c), and (d) (Misconduct). This Court referred the matter to Judge Katherine D. Savage of the Circuit Court for Montgomery County for a hearing to determine findings of fact and conclusions of law pursuant to Maryland Rule 16-757 (Judicial Hearing).
On May 16, 2012, Judge Savage conducted an evidentiary hearing, during which Respondent was represented by counsel, and thereafter, the hearing judge issued Findings of Fact and Conclusions of Law, in which she found, by clear and convincing evidence, that Respondent's acts and omissions constituted violations of MLRPC 1.1; 1.3; 1.4(a) and (b);
1.15(a) and (c); 1.16(a) and (d); 5.5(a), (b)(1) and (b)(2); 3.3(a)(1); 8.1(a); and 8.4(a), (c) and
(d). In so doing, Judge Savage made the following findings of fact regarding Respondent's background, representation of Ms. Jackson and the filing of Respondent's "Petition for Reinstatement" to this Court:
Respondent was admitted to the Maryland Bar on June 24, 1998.*fn1 Mr. Page holds an undergraduate degree in accounting from Towson University, a Master's degree in finance from the University of Baltimore and a Juris Doctor degree from the University of Maryland. Respondent is also a Certified Public Accountant and has taught accounting and paralegal studies at Montgomery College since 1988.*fn2
At trial, Petitioner offered the testimony of Respondent and Ms. Jackson. Petitioner's documentary exhibits were admitted without objection. Respondent testified in his defense and also offered documentary exhibits.
On May 25, 2006, Respondent entered into a retainer agreement with Ms. Jackson for the purpose of representing her in a dispute over alleged defects in the construction of Ms. Jackson's new home. Ms. Jackson agreed to pay Respondent $5,000 as an "initial fee" with the proviso that an additional fee may be required to meet unforeseen circumstances [citations omitted here and throughout]. Respondent testified that, at the time the agreement was executed, he knew that the claim between Ms. Jackson and the builder was contested. The retainer agreement further provided that "no hourly billings will be kept nor shall be expected." Mr. Page did not keep time records regarding his work on Ms. Jackson's case.
Ms. Jackson made an initial payment to Mr. Page of $2,500, which Respondent deposited into his attorney trust account on June 12, 2006. The funds were subsequently removed from the trust account. Mr. Page presented no credible evidence that the funds were earned at the time they were removed from the trust account.
Less clear is what happened to the second payment of $2,500 Ms. Jackson made to Respondent on March 12, 2007 by check number 7858805. When questioned by Petitioner's counsel, Respondent testified that the signature endorsing check number 7858805 was his. When questioned by his own counsel, Respondent testified that he had no recollection of receiving check number 7858805 and that he had no idea who owned the account into which the check was deposited. In response to the Court's question as to whether or not the signature was his, Respondent testified, "Your Honor, I've got a crazy signature. I have to say that it looks, when I'm writing fast, it could very well be, but as to the signature on it, it appears to be, it looks like my signature. It appears to be my signature." Mr. Page later changed his testimony to state that the signature was not his. Respondent also testified that he frequently endorsed checks with a stamp and not a handwritten signature.
On balance, and after weighing the credibility of both Mr. Page and Ms. Jackson, the Court accepts Ms. Jackson's testimony. Her memory of events was cogent, clear and internally consistent. Mr. Page, on the other hand, appeared confused as to some events, forgetful of others, and evidenced an overall lack of clarity in recalling basic facts about this matter.
The Court therefore finds that Respondent both received and endorsed check number 7858805, and caused the check to be deposited in a non-trust account held at Wachovia Bank. Respondent presented no evidence that the funds from either payment were maintained in trust until earned. By his own admission, Respondent agreed that he did not maintain a client ledger, time records or any other documentation relating to the receipt, maintenance or disbursements of funds received from Ms. Jackson.
From May 25, 2006 through December 7, 2006, Ms. Jackson forwarded all relevant documents relating to her claim to Respondent. Despite Ms. Jackson's repeated requests to move her case along, Respondent continually delayed. Respondent would tell Ms. Jackson that he was working on her case, that he was going out of town or that he was waiting for the resolution of the case filed by the county in the District Court for Prince George's County related to building permit violations. Mr. Page claims that during this time he was accumulating evidence on Ms. Jackson's behalf and meeting with Prince George's County building inspectors to evaluate their potential usefulness as witnesses in the lawsuit he was preparing to file. Respondent informed Ms. Jackson that her complaint would be filed before the end of the year, 2006.
The Court notes that the resolution of the Prince George's County case was not necessary to Ms. Jackson's case because it did not involve work that was the subject of her complaint against the builder. Despite arguing that he was accumulating evidence on Ms. Jackson's behalf between May 2006 and the time of filing, Respondent presented no billing records or communications to demonstrate his work on the case. On February 23, 2007, nearly nine months after being retained, Respondent filed a complaint on behalf of Ms. Jackson in the Circuit Court for Prince George's County. The complaint contained six counts: breach of contract, negligence, breach of implied warranty of good and workmanlike construction, fraudulent misrepresentation, negligent misrepresentation and intentional infliction of emotional distress.
Respondent testified that at the time the complaint was filed, he did not know that an expert witness would be required to establish the standard of care, breach or causation. Ms. Jackson made requests for a copy of the complaint by voicemail and e-mail. Respondent never provided Ms. Jackson with a copy of the complaint. She eventually went to the courthouse and purchased a copy from the clerk.
The Defendants were served on April 11 and 18, 2007. On May 16, 2007, Respondent filed a premature Motion for Default alleging that all Defendants were served on April 11, 2007. On May 17, 2007, the Defendants filed an Answer denying all material facts and any liability and asserting a number of affirmative defenses. Respondent received the Defendants' Answer, but at the instant hearing could not recall whether he had reviewed it. The trial court denied the Motion for Default.
Beginning in or before July 2007, Respondent made multiple representations to Ms. Jackson that he would prepare and file a motion for summary judgment. He initially represented that a motion would be filed on or before October 18, 2007. Mr. Page eventually filed the motion in March 2008.
In October 2007, Respondent began employment with the Internal Revenue Service ("IRS"). IRS policy prohibited Respondent from maintaining a private practice or representing any client without first obtaining approval from the IRS. Both Mr. Page and Ms. Jackson, who had previously been employed by the IRS, testified that they were both aware of the IRS policy. Mr. Page testified that he reported his active cases to his IRS manager, as required, and that he received permission to wrap-up matters with several clients. Mr. Page agrees with Petitioner that he never received clearance to continue work on Ms. Jackson's case.
On October 23, 24, 25 and November 27, and 29, 2007, Ms. Jackson attempted to contact Respondent for updates on her case. Respondent did not respond to any of her requests for information. On December 4, 2007, Ms. Jackson was finally able to contact Respondent and Respondent assured her that the motion would be filed before Christmas. On December 18 and 19, 2007, Ms. Jackson left messages for Respondent to call her. Respondent did not return the messages.
On January 7, 2008, while Ms. Jackson's case was still pending, Mr. Page consented to a thirty (30) day suspension from the practice [of] law in the State of Maryland. On January 15, 2008, Ms. Jackson left a voicemail message for Respondent. On January 16, 2008, Ms. Jackson reached Respondent by telephone. Respondent did not inform Ms. Jackson of his suspension but did, for the first time, inform Ms. Jackson that he had begun employment with the IRS in October 2007*fn3 and noted that he would need to receive IRS approval to continue her case. The Court finds that Respondent led Ms. Jackson to believe that he had requested approval to continue her case. Mr. Page also acknowledged that Ms. Jackson repeatedly asked if approval had been granted. Respondent admitted at the instant hearing that he never sought the necessary IRS approval to continue Ms. Jackson's case.
Respondent conducted no discovery in Ms. Jackson's case. In his testimony, Mr. Page demonstrated that he did not understand what the discovery process entailed. On March 6, 2008, while suspended from the practice of law and without IRS permission to continue representing Ms. Jackson, Respondent filed "Plaintiffs Motion for Summary Judgment on the Issue of Liability" (hereafter "Motion").*fn4 Mr. Page never fully explained the delay in filing the Motion, but he did testify that he believed it was unlikely the motion would be granted.
The Motion contained facts outside the record and was not supported by an affidavit. The complaint itself was not verified. Respondent testified at trial that he did not know what a "verified complaint" was. The Motion contained the following misrepresentations:
1. Paragraph 1 of the Motion states "No dispute of material facts exists on the issue of whether Plaintiff contributed to the [sic] neither Breach of Contract nor negligence. The statement is a misrepresentation. Defendant's answer at paragraph 73 provides "The Plaintiffs claims are barred by contributory negligence." Because Respondent did not propound any discovery, at the time the Motion was filed, he had no evidence to prove the facts disputed by the Defendants.
2. Paragraph 3 of the Motion states "No dispute of material fact exists as to whether or not Plaintiff sustained damages from the breach of contract and negligence committed by the defendants." The statement is a misrepresentation. The Defendants denied all damages.
3. Paragraph 7, 8, 9, 10, 11, 12 and 13 of the Motion all contain facts alleged by Respondent as "not in dispute." Each fact alleged was specifically denied by the Defendants.
When questioned by Petitioner's counsel on the issue of "disputed facts" in the summary judgment motion, he stated that the facts were not disputed by his client. He further explained that he accepted his own facts and documents referenced in his argument for summary judgment. Clearly, Mr. Page has little to no understanding of summary judgment law. At one point, he testified that he did not even recall when he actually filed the Motion for Summary Judgment.
The Prince George's County court denied the Motion in an order dated May 21, 2008. On May 27, 2008, Respondent left a voicemail message for Ms. Jackson informing her that the court had denied the Motion. Mr. Page stated that "[he's] not gonna be able to proceed in litigation at this point, 'cause I still haven't received clearance from IRS to do, to do any further litigation." Ms. Jackson sent Respondent a termination letter dated June 17, 2008, requesting that her file be transferred to substitute counsel and that Respondent provide an itemized statement of all expenses incurred with a check for the balance remaining from the retainer of $5,000. Several weeks later, and after Ms. Jackson paid $50 for copying costs, Respondent delivered Ms. Jackson's file to substitute counsel. Respondent never provided Ms. Jackson with an itemization of fees and expenses, nor did he refund any unearned fees. Respondent never informed Ms. Jackson that he had been suspended from the practice of law.
Petition for Reinstatement
On January 7, 2008, Petitioner and Respondent filed a Joint Petition for Suspension of Respondent, by Consent, for 30 Days in the Court of Appeals. The Joint Petition was signed by Respondent under penalty of perjury and upon personal knowledge and states "Respondent agrees to comply with Maryland Rule 16-760." Respondent testified that he reviewed the Petition prior to signing it and that he had an opportunity to and did, in fact, discuss the Petition with his ...