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Attorney Grievance Commission of Maryland v. Gerace

Court of Appeals of Maryland

August 19, 2013

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MICHAEL FRANCIS GERACE

Circuit Court for Anne Arundel County Case No. 02-C-12-171275 AG

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

OPINION

BARBERA, C. JUDGE.

Respondent, Michael Francis Gerace, has been a member of the Bar of this Court since November 19, 1980. Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel ("Commission" or "Bar Counsel"), filed with this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent on July 2, 2012. See Md. Rule 16-751(a). The Petition alleged numerous violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") in connection with (1) Respondent's representation of Colin Schafer, Esq. in a landlord-tenant dispute and (2) Respondent's continued practice of law following this Court's issuance of a decertification order for his having failed to pay his annual Client Protection Fund assessment. In particular, the Petition alleged that Respondent engaged in professional misconduct by violating the following Rules: MLRPC 1.1 (competence)[1]; 1.3 (diligence)[2]; 1.5(b) (fees)[3]; 1.16(d) (termination of representation)[4]; 5.5(a) and (b) (unauthorized practice of law)[5]; 8.1(b) (bar admission and disciplinary matters)[6]; and 8.4(a), (b), (c), and (d) (misconduct).[7]

On July 17, 2012, we designated the Honorable Michele D. Jaklitsch of the Circuit Court for Anne Arundel County to conduct an evidentiary hearing and file written findings of fact and conclusions of law in this matter. See Md. Rules 16-752(a) and 16-757(c). Respondent was served with process, but did not file an Answer to the Petition, timely or otherwise. As a result, on October 22, 2012, the hearing judge entered a default order, see Md. Rule 16-754(c), and the matter was set for a hearing on December 10, 2012. Respondent, though notified of the order of default, neither moved to vacate the order nor appeared at the hearing. The hearing judge received evidence from the Commission, acting through Bar Counsel, and concluded that Respondent had violated MLRPC 1.1, 1.3, 1.5(b), 1.16(d), 5.5(a) and (b), 8.1(b), and 8.4(a), (b), (c), and (d). Accepting Judge Jaklitsch's findings of fact and agreeing with her conclusions of law, on June 25, 2013, we entered a per curiam order disbarring Respondent. We explain in this opinion the reasons for Respondent's disbarment.

I. Hearing Judge's Findings and Conclusions

Because Respondent failed to file an Answer to the Commission's Petition for Disciplinary or Remedial Action, the hearing judge treated the averments in the Petition as admitted. See Md. Rule 2-323(e). Upon clear and convincing evidence, see Md. Rule 16- 757(b), the hearing judge set forth the following findings of fact:[8]

A. The Schafer Complaint

Colin Schafer, Esquire, filed a complaint with the Office of Bar Counsel against Respondent concerning the conduct that Mr. Schafer believed to be in violation of the Maryland Lawyers' Rules of Professional Conduct. Mr. Schafer is an attorney licensed to practice law in the District of Columbia, New York, and Pennsylvania.
Beginning [i]n or about October 2009, the Schafer family began experiencing problems with a well at the family's [rented] home, located [in Annapolis, Maryland] (hereinafter "the home"). The well failed, and as a result, polluted water entered into the home, ultimately forcing the Schafer family to move from the home. Despite these events, the landlord of the home refused to refund a security deposit. As a result, Mr. Schafer filed suit against the landlord in the District Court for Anne Arundel County, Maryland. (Colin Schafer, et al. v. Patrick Argentiere, Case No. 0702-0003231-2010) (hereinafter "the Schafer case").
In April of 2010, the Schafers retained Respondent to represent them in their case and agreed to a fixed fee of $500.00 for the representation. Throughout the representation of the Schafers, Respondent failed to communicate timely and adequately with Mr. Schafer concerning the basis and rate of the fee Respondent charged the [Schafers]. Despite a written and executed fee arrangement of $500.00 for the representation, and following commencement of the representation and payment of the $500.00, Respondent attempted to alter the fee arrangement by stating on several occasions that it was within his discretion to change the fee arrangement to an hourly rate.
On November 30, 2010, and as a result of several disagreements that arose concerning Respondent's handling of the case, the Schafers terminated [their representation by] Respondent. Upon termination of the representation, Respondent failed to take the necessary steps to protect his client's interests. Despite Mr. Schafer's repeated requests, Respondent refused to file a motion to withdraw from the Schafer case. Respondent also failed to return the case file, which included original documents that Mr. Schafer previously provided to Respondent. Respondent has never returned these documents.
Respondent also failed to refund fees, paid in advance by the Schafers, which were not earned. At or shortly following the termination, Respondent and Mr. Schafer agreed to a $475.00 refund out of the $500.00 fee. The $475.00 represented fees that Mr. Schafer paid in advance that were not earned. Despite this agreement, and notwithstanding Mr. Schafer's numerous requests for this refund, Respondent failed to refund the $475.00. Respondent failed to return Mr. Schafer's phone calls and emails, or otherwise made himself unavailable. As a result, Respondent not only put the Schafer's then-pending case at risk, but subjected the Schafer family to unnecessary stress and concern.

B. Unauthorized Practice of Law and Failing to Respond to Bar Counsel

On April 7, 2010, the Court of Appeals of Maryland issued an Order decertifying Respondent for failing to pay annual [Client Protection Fund] assessments. This Order prohibited Respondent from the further practice of law.
On May 17, 2011, the Office of Bar Counsel requested that Respondent provide a response to Mr. Schafer's complaint, but Respondent failed to provide a response. Bar Counsel again requested a response on June 14, 2011; September 22, 2011; October 15, 2011; November 15, 2011; November 28, 2011; and November 30, 2011. After unsuccessful attempts were made, Bar Counsel assigned an investigator, Mr. Edwin P. Karr, to locate the Respondent.
Mr. Karr experienced significant difficulties and delays in locating Respondent. Mr. Karr visited several addresses, including addresses previously provided by the Client Protection Fund.[9] He contacted the Anne Arundel County Sheriff's Office, and otherwise exhausted all leads concerning Respondent's whereabouts, all to no avail. Thereafter, Bar Counsel, by way of a Maryland Judiciary Case Search, obtained information suggesting Respondent was employed with ...

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