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Attorney Grievance Commission of Maryland v. Sperling

Court of Appeals of Maryland

July 5, 2013

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JONATHAN DANIEL SPERLING

Bell, C.J. Harrell Battaglia Greene Adkins Barbera McDonald, JJ.

OPINION

BATTAGLIA, J.

Jonathan Sperling, Respondent, was admitted to the Bar of this Court on June 24, 1998. On February 16, 2012, the Attorney Grievance Commission ("Bar Counsel"), Petitioner, acting pursuant to Rule 16-751(a), [1] filed a "Petition for Disciplinary or Remedial Action" against Jonathan, [2] relative to his representation of Victoria Brunson-Hill as the plaintiff in an automobile accident case.

In July of 1998, Jonathan had been a practicing attorney for approximately one month when Ms. Brunson-Hill retained the law firm of Sperling and Framm, in which Leonard Sperling, Jonathan's father, was a partner, to represent her after she had been struck by an automobile in a public parking lot in Prince George's County. On November 30, 1998, Sperling and Framm filed suit on Ms. Brunson-Hill's behalf in the Circuit Court for Montgomery County, naming Greta Renee Frank as the defendant. Jonathan Sperling, although having never entered his appearance, was responsible for the day-to-day tasks in the case, such as attending pre-trial conferences, drafting discovery, and engaging and interacting with a process server. Ms. Frank was never served, and on October 22, 1999, the suit was dismissed.

Subsequently, in March of 2000, Leonard Sperling filed a Motion for Reconsideration of Dismissal, which was granted on April 3, 2000. A pre-trial conference was scheduled for May 5, 2000, but Ms. Frank, yet to be served, failed to appear, and the conference was rescheduled for August 4, 2000, and again for September 29, 2000. When no one appeared for the latter of the conferences, the case was again dismissed, although Ms. Brunson-Hill was never informed of the dismissal.

On February 22, 2008, Ms. Brunson-Hill e-mailed Jonathan to inquire about the status of her case, to which he responded by e-mail three days later that the case was "still making its rounds with the clerk and she assures me she is working on it." Ms. Brunson-Hill was not told that her case had been dismissed, even though Jonathan became aware of the dismissal sometime prior to sending his response to Ms. Brunson-Hill.

Thereafter, on April 11, 2008, the Sperling Law Office, as it was then known, filed a Motion to Re-open Case. That pleading stated in pertinent part:

That Plaintiff's counsel has been in constant contact with the clerk's office, reported the events that had transpired within the Court and was told the matter would be looked into and fixed and that Plaintiff's counsel should, "not worry, it would be fixed."

The Motion also asserted "[t]hat the clerk's office did not fix the error, despite assurances to the contrary, and as a result the case was closed." The Motion further stated that "Plaintiff's counsel has a good idea of where the Defendant is and if the matter were reopened, Plaintiff's counsel would be able to proceed with due haste in completing this matter." Jonathan attached an affidavit to the Motion to Re-open Case in which he attested that "I am familiar with this matter and that all statements made in the Motion are correct to the best of my knowledge and belief."

On May 5, 2008, the Sperling Law Office filed a Supplemental Motion to Re-open Case. That motion reiterated the statements regarding "constant contact" with the clerk's office, that the clerk's office assured plaintiff's counsel that the situation would be fixed, and that plaintiff's counsel had a good idea where the defendant was located. Again, Jonathan attached a verified affidavit to the Supplemental Motion to Re-open Case, attesting that he was "familiar with this matter and that all statements made in the Motion are correct to the best of my knowledge." Jonathan also asserted in the affidavit that he "contacted the clerk's office on numerous occasions, explaining the error and was assured on numerous occasions the matter would be fixed and re-opened." Both Motions were denied.

Ms. Brunson-Hill filed a complaint with Bar Counsel regarding Jonathan's handling of her case. Bar Counsel charged Jonathan with violations of the Maryland Lawyers' Rules of Professional Conduct 1.1 (Competence), [3] 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer), [4] 1.3 (Diligence), [5] 1.4(a)(1) – (3) and (b) (Communication), [6] 3.1 (Meritorious Claims and Contentions), [7] 3.3(a)(1) and (a)(4) (Candor Toward the Tribunal), [8] 4.1(a)(1) (Truthfulness in Statements to Others), [9] and 8.4(a), (c), and (d) (Misconduct).[10]

By an Order dated February 22, 2012, we referred the Petition to Judge Judith C. Ensor of the Circuit Court for Baltimore County. Judge Ensor held a hearing on August 14, 2012, during which Ms. Brunson-Hill, Jonathan Sperling, Leonard Sperling, and Samuel Sperling testified. Documentation of communications between Ms. Brunson-Hill and Jonathan was entered into evidence as well as the deposition of Loretta E. Knight, who was the manager of the civil department of the Clerk's Office in the Circuit Court for Montgomery County from 1990 until 2006, at which time she was elected Clerk of the Circuit Court for Montgomery County. Judge Ensor issued the following findings of fact and conclusions of law, in which she found Jonathan violated Rules 1.1, 1.3, 1.4(a) and (b), 3.3(a), and 8.4(a), (c), and (d), but did not violate Rule 1.2:

FINDINGS OF FACT[11]
Jonathan graduated in December, 1997, from the University of Maryland School of Law, passed the bar on his first attempt, and was sworn in as a member of the Maryland Bar on June 24, 1998. Since that time, he essentially has worked for his father, Leonard Sperling. When Jonathan first began with the firm, it was known as Sperling and Framm. In 2003, the practice became known as the Sperling Law Firm, P.C. Since joining his father's firm, Jonathan has maintained a general practice; he has represented clients in both the civil and criminal arenas.
Jonathan had been practicing law for roughly four weeks when Victoria Brunson-Hill (sometimes "Ms. Brunson-Hill") initially met with Leonard Sperling in late July, 1998. At that time, Ms. Brunson-Hill retained Leonard Sperling and the law firm of Sperling and Framm to represent her in connection with a claim for personal injuries. Leonard "signed her up" with the firm and filed suit on Ms. Brunson-Hill's behalf on November 30, 1998. The suit was filed in the Circuit Court for Montgomery County, named Greta Renee Frank (sometimes "Ms. Frank") as a defendant, and sought damages as a result of injuries sustained on July 12, 1998. More specifically, in the complaint, it was alleged that, while walking at or near a parking lot located in Prince George's County, Ms. Brunson-Hill was struck by a vehicle driven by Ms. Frank. Ms. Brunson-Hill claimed to have been permanently injured as a result of the incident. She sought $945, 000 in damages and requested that the matter be tried before a jury.
The clerk's office sent notice on December 1, 1998, that the matter was scheduled for a settlement/pre-trial conference on March 5, 1999. As Ms. Frank had not been served and was not present, the conference was postponed and reset for October 22, 1999. Four days prior to the new conference date, however, on October 18, 1999, the clerk's office sent a notice of contemplated dismissal pursuant to Maryland Rule 2-507. When no one appeared for the October 22, 1999, conference, the case was dismissed. On October 26, 1999, in response to the notice vis-á-vis contemplated dismissal, Leonard Sperling filed a pleading entitled "Motion to Dismiss Contemplated 2-507 Dismissal." By the time that pleading was filed, the case had been dismissed as a result of the parties' failure to appear at the October 22, 1999, settlement/pre-trial conference. Therefore, when the Honorable Paul H. Weinstein reviewed the Motion to Dismiss Contemplated 2-507 Dismissal on November 8, 1999, he determined that it was moot.
As a result of this finding, on December 28, 1999, Leonard Sperling filed a motion to reconsider dismissal under Maryland Rule 2-507. In that pleading, Leonard indicated that "the Plaintiffs' Counsel never received a copy of a hearing date for the said Motion." Leonard went on to say that "Plaintiff's Counsel received a notice from the Court that the above matter had been dismissed on October 22, 1999, because Plaintiff did not appear for the said hearing." Leonard asked that the Court vacate its dismissal and reinstate the case.
On March 29, 2000, Leonard Sperling filed a pleading entitled "Motion for Reconsideration of Dismissal, " and indicated that it was a supplement to the initial motion. In the supplement, Leonard stated that, since Ms. Frank had not been served, he "assumed" that "he was not expected to be present at a pre-trial conference." Leonard also indicated that he had spoken with the clerk's office and had been "informed that it was not necessary for the Plaintiff or Plaintiff's counsel to be present" for the pre-trial conference. The Motion for Reconsideration of Dismissal was granted by Judge Weinstein. The corresponding order was entered on April 5, 2000. In the same order, Judge Weinstein provided a new settlement/pre-trial conference date of May 5, 2000.
On May 5, 2000, Ms. Frank again failed to appear as she had not yet been served. The case was then set for a scheduling conference on August 4, 2000. The case was again re-set, and this time scheduled for a conference on September 29, 2000. The case was called on September 29, 2000, but the parties failed to appear; the matter was dismissed.
More than three years later, as a result of Leonard's temporary suspension from the practice of law, Samuel Sperling moved to enter his appearance and strike that of his father. Four years after that, on April 11, 2008, Plaintiff's Motion to Re-open Case was filed. In that pleading, among other things, counsel indicated that he had "been in constant contact with the clerk's office, reported the events that had transpired within the Court and was told the matter would be looked into and fixed." Moreover, plaintiff's counsel indicated that he was told he should "not worry, it would be fixed." Importantly, Jonathan Sperling provided an affidavit in which he vouched for the truthfulness of the statements made in the motion.
A Supplemental Motion to Re-open Case was filed on May 5, 2008. In the Supplemental Motion, plaintiff's counsel reiterated that he had "been in constant contact with the clerk's office." He added that he "made repeated calls regarding this matter, went over the previous calls, the matters discussed in the Hearings and was assured the matter would be fixed." Jonathan Sperling provided an accompanying affidavit in which he affirmed that he was "extremely familiar" with the matter. He indicated that he had "contacted the clerk's office on numerous occasions, explaining the error and was assured on numerous occasions the matter would be fixed and reopened." The motion to re-open was denied on May 13, 2008, with notice sent to Samuel Sperling.
According to Jonathan, he became involved in Ms. Brunson-Hill's case in August, 1998. By his own admission, Jonathan was "assigned principal responsibility for the day-today work on the case." Jonathan testified, however, that, by "day-to-day work, " he meant that he drafted the discovery and made sure that the process server was engaged and diligent in his efforts to locate Ms. Frank. Jonathan also testified that he went to at least some of the pre-trial settlement conferences that had been scheduled by the Court. Other attorneys associated with the law firm worked on the case as well.
Jonathan never told Ms. Brunson-Hill that her case had been dismissed. He never told her that the statute of limitations had run. In fact, Ms. Brunson-Hill learned that the case had been dismissed only after she performed an internet inquiry through the Maryland Judiciary Case Search. She then followed up with Jonathan, specifically asking about the status of her case. Jonathan responded to her via email dated February 25, 2008, simply indicating that the case "is still making its rounds with the clerk and she assures me she is working on it."
Ms. Brunson-Hill was not the only individual concerned about the status of the case. Her treating physician, Dr. Lawrence F. Honick, made inquiry through his office staff. Specifically, on December 26, 2001, Lisa Kirkpatrick faxed paperwork to Leonard Sperling. On the fax cover sheet, Ms. Kirkpatrick mentioned that, back on April 5, 2001, "Mr. Sperling indicated that [the] case was still pending." Ms. Kirkpatrick also mentioned that she had "called many times and left many messages without an answer." There is a response written on the fax cover sheet itself. In all capital letters it is written "THIS CASE IS STILL PENDING IN COURT."
A similar inquiry from Dr. Honick's office was sent on November 13, 2002. Jonathan's response was provided the same day. He wrote: "THIS CASE STILL IN COURT!" There was yet another inquiry from Lisa Kirkpatrick on June 21, 2005. This time, the correspondence was sent to the attention of Jonathan Sperling. In the body of the paperwork, Ms. Kirkpatrick stated that, on May 5, 2005, Jonathan "indicated to Dr. Honick that this account would be going to court soon. What is the status?" Another request for this same information was sent on August 3, 2005. Ms. Kirkpatrick sent yet another inquiry on May 16, 2006.
With respect to Jonathan's alleged numerous conversations with the clerk's office, the Commission submitted the deposition of Loretta Knight, who was elected Clerk of the Circuit Court in 2006. Prior to that, she was a manager in the civil department. Ms. Knight testified that, back in 2000, there were in the neighborhood of 40 to 45 people working in the civil department, of whom perhaps 30 were trained to answer telephone inquiries. Ms. Knight indicated that there were periodic assignments to phone duty. According to Ms. Knight, if asked, a clerk was permitted to provide the status of any given case. Ms. Knight was ...

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