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Attorney Grievance Commission of Maryland v. Stillwell

Court of Appeals of Maryland

September 13, 2013

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
GARLAND HOWE STILLWELL

Circuit Court for Prince George's County Case No. CAE-1117724

Barbera, C.J. Battaglia Greene Adkins McDonald [*] Bell Cathell, Dale R. (Retired, Specially Assigned), JJ.

OPINION

Bell, C.J.

The Attorney Grievance Commission, pursuant to Maryland Rule 16-751[1] and acting through Bar Counsel, filed, in this Court, a petition for disciplinary or remedial action against the respondent, Garland H. Stillwell. In the petition, it alleged that the respondent violated certain of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812, specifically Rules 1.3, Diligence, [2] 1.4, Communication, [3] 1.15, Safekeeping Property[4] and 8.4, Misconduct, [5] as well as Maryland Rules 16-603[6] and 16-604.[7]

Pursuant to Maryland Rule 16-752(a)[8] and by Order dated July 27, 2011, we referred the matter to Judge Sean D. Wallace of the Circuit Court for Prince Geroge's County for proceedings pursuant to Rule 16-757 (c).[9] After a hearing, Judge Wallace made findings of fact and drew conclusions of law, which determined that the respondent violated all of the charged Maryland Rules.

Judge Wallace found the following facts. The respondent, who was admitted to the Maryland Bar on December 19, 1989, met the complainant, Temitope Akojie, a Maryland licensed real estate agent, in December 2009[10] at a seminar he presented in the Exit Premier Realty office. He also "used" office space at the Realty's Apollo Drive office. Following the presentation, Ms. Akojie spoke with the respondent about her involvement in August Real Estate, a New York Limited Liability Company ("LLC"), its debt situation and her desire to establish a Maryland LLC, independent of Exit Premier Realty, for her real estate business. They did not speak again until the next month, in January, 2010.

At that time, Ms. Akojie expressed to the respondent that she "wanted to keep the name August Real Estate Team for her limited liability company in Maryland, that she was willing to assume the debts incurred by Ms. [Amanda] Pinales [, her partner in the New York LLC, ] in connection with August and that she wanted him 'to begin work to set up the L.L.C. as a formed corporation in Maryland, also as a single-member L.L.C. which also entailed whatever Respondent needed to do with regards to removing Amanda Pinales as a member, as well as [Ms. Akojie's] assumption of [the L.L.C.'s] assets and liabilities."' It was not until March 9, 2010 that the parties entered into a Legal Services Agreement. That agreement, printed on the respondent's attorney letterhead, as pertinent, provided:

"Client hereby engages Attorney to perform the following legal services:
a. Assist in establishing August Real Estate Team, LLC, as a Maryland Foreign Limited Liability Company.
b. Assist in establishing August Real Estate Team as a single member LLC.
c. Assist in having assets and liabilities of August Real Estate Team LLC transferred to exclusive control, responsibility and ownership of Client."

Ms. Akojie agreed to pay the respondent "for performing the above and described matter at a flat fee of $3000.00 of which $2000.00 shall be due upon execution of the agreement."

After signing the agreement, Ms. Akojie gave the respondent a personal check, payable to him, in the amount of $2, 000.00. The respondent deposited the check in his personal checking account, rather than in his attorney trust account, required by Title 16, Chapter 600 of the Maryland Rules, to be maintained for the receipt and safekeeping of client funds. In fact, the respondent did not have an active attorney trust account when he deposited the $2, 000.00 check from Ms. Akojie. [11] The respondent did not obtain Ms. Akolie's informed consent, either within the written Legal Services Agreement or confirmed separately in writing, to cash her $2000.00 fee check immediately rather than depositing same in a client trust fund for safekeeping until the fee was earned.

Rejecting the respondent's testimony that he began work on Ms. Akojie's matter in January, after their conversation, Judge Wallace, by clear and convincing evidence, found that there was no attorney client relationship established until the Legal Services Agreement was executed. Any work done on the case was, he determined, was "lay[ing] the groundwork for the possible future representation." Judge Wallace also was convinced that there was no attorney client relationship by the terms of the Legal Services Agreement: it provided that the term of the agreement would "commence" when the agreement was signed by the parties and "the client submits the requested engagement amount" and it defines the effective date, consistently, as "as of the date it is executed by all parties and Client has submitted payment of the requisite retainer deposit."

After the representation agreement was signed and the respondent deposited Ms. Akojie's check for $2, 000.00, the respondent's communication with Ms. Akojie and work on the matters for which he was retained were "sporadic, " with the only documented exchanges between Respondent and Ms. Akojie being by means of electronic mail. In an April 17, 2010 email to the respondent, Ms. Akojie expressed her frustration at not having been able to speak to him more frequently and the frustration of Ms Pinales, from whom the representation required him to obtain debt information, in trying to reach him. She concluded, "[w]e would like to stop our services and request for [sic] a refund of our funds."

Although in response to the April 17th email, the respondent promptly arranged a meeting with Ms. Akojie, which he followed up with written instructions designed to result in the transfer of Ms. Pinales' interest in the New York LLC to Ms. Akojie and setting a goal for when "complete" discussions with creditors would be held, "by May 30th, " and all interests in rental property would be transferred, "the end of June, " neither self-imposed deadline was met. Ms. Pinales provided the respondent with the information about the multiple accounts she had opened in connection with the New York LLC and, as early as April 27, faxed to him the signed authorizations he would need to negotiate with those creditors. The respondent did not acknowledge receiving the faxed documents until May 14, 2010. With regard to communicating with those creditors, the respondent testified that he made efforts, by phone, to do so, but provided no notes or other records to confirm that he did. He conceded that he did not send any of them any written correspondence.

Throughout May and June of 2010, Ms. Akojie attempted to contact the respondent, leaving "multiple voice mail messages ... but did not hear back from him for 'probably a couple of weeks.'" When the respondent did call back in June, he proposed continued representation on a pro bono basis and additional representation in an unrelated, separate employment matter. That proposal was refused, as Ms. Akojie had decided to terminate the respondent's representation, which she did in an email on July 8, 2010. In that email, she requested return of her "initial deposit of $2, 000" and "paperwork." Return of the latter had been promised the day before, when, in a phone call, the respondent told Ms. Akojie that "his secretary 'would contact [her] and provide the paperwork before 2 pm that day."' On July 14, Ms. Akojie sent another email, this one reminding the respondent that his secretary stated to her "last week that my check would be ready by the 15th." Acknowledging his agreement to refund the $2000, in a letter the same day, he advised that the processing of the check would take between 10 and 14 days. Ms. Akojie filed her complaint with the petitioner, which wrote to the respondent on August 9, 2010. When the refund was not received by July 30, Ms. Akojie again inquired about the refund check, by emails dated July 30 and August 12. The respondent refunded the $2000 in a letter dated August, 21, 2010, causing the court to find, "Respondent did not act to issue the refund of $2000, which he previously had promised to Ms. Akojie within "10-14 days" of July 15, 2010, until after Respondent received notification of Ms. Akojie's grievance via Bar Counsel's correspondence dated August 9, 2010."

From these factual findings, the hearing court drew conclusions of law, as follows. First, with regard to the $2000 fee payment, it concluded that the respondent violated MLRPC 1.15. Because the fee had not been earned when paid and, instead, was intended to be applied to the future legal services described in the retainer agreement the parties executed, the respondent violated MLRPC 1.15 (a) by not depositing that fee into an attorney trust account, which Title 16, Chapter 600 requires lawyers to maintain. Without informed consent, confirmed in writing, having been given by the client, that same conduct violates MLRPC 1.15 (c). The client gave no such consent in this case. From the fact that the respondent did not maintain an attorney trust account, the hearing court concluded that the respondent also violated Rule 16-603.[12]

The refund of the $2000 fee payment also was central to the hearing court's conclusions with respect to the respondent's compliance with MLRPC 1.15(d) and 1.16 (d). Having acknowledged in writing to Ms. Akojie that he was going to refund her $2, 000.00 payment within 10-14 days, the court concluded that Ms. Akojie was entitled to receive those funds and, therefore, that the respondent's failure to meet his self-imposed deadline for refunding them violated MLRPC 1.15 (d), as their delivery was not "prompt." Inasmuch as the promised $2000.00 refund was a result of her termination of the respondent's representation, the court also concluded that the failure to surrender those funds promptly violated MLRPC 1.16 (d), as well.

Second, with regard to the diligence charges, the hearing court concluded:

"As part of the representation he agreed to undertake on behalf of Ms. Akojie, Respondent was responsible for contacting the various creditors identified by Ms. Panales and finding out what arrangements could be made to transfer the subject debts to Ms. Akojie or otherwise resolve such debts. Despite having written authorization from Ms. Panales by April 27, 2010, and setting a May 30, 2010 deadline 'to complete discussions with all creditors, " Respondent did not complete this task with reasonable diligence and promptness. He failed to send any written correspondence to the creditors and produced no documentary evidence that he had any substantive communications concerning the transfer or other resolution of such debts. Because he failed to act with reasonable diligence and promptness to deal with the debt issues, he could not move forward with completing the other contemplated aspects of the representation, involving the establishment of August Real Estate Team as a single-member limited liability company for Ms. Akoyie. In summary, Respondent did not act with reasonable diligence and promptness to perform any of the three itemized legal services set forth in his Legal Services Agreement with Ms. Akoyie. This court concludes that such failure on Respondent's part violated MLRPC 1.3."

A violation of MLRPC 1.4 (a) (2) was found by the hearing court because of the respondent's failure to keep Ms. Akojie "reasonably informed about his communications with the various creditors and what actions may be required of her." MLRPC 1.4 (a) (3) was violated when the respondent did not promptly respond to Ms. Akojie's various and numerous electronic mail messages.

The hearing court finally concluded that the respondent violated MLRPC 8.4 (a). His reasoning was straight-forward: "by violating other Rules of Professional Conduct as described herein, it follows that Respondent engaged in professional misconduct under MLRPC 8.4 (a)."[13]

The petitioner took no exceptions[14] to the findings and conclusions made by the hearing court, but it did make a recommendation for sanction, that the respondent be indefinitely suspended from the practice of law. In addition to the violations found by the hearing court in the instant case, the petitioner factors into its recommendation calculus, as an aggravator, see American Bar Association Standards for Imposing Lawyer Sanctions (1991), § 9.22 (a), the fact that the respondent, who is the subject of a reciprocal discipline petition involving the same alleged misconduct, was suspended by the District of Columbia, for 60 days for violation of the District of Columbia equivalent of Maryland Rules 8.4 (c) and 1.17 (b) (1). When this prior disciplinary sanction is considered with another aggravating factor, see § 9.22 (d), "the multiple violations in the present case ...", the petitioner concludes that "the appropriate discipline for Respondent should certainly be no less than an indefinite suspension."

The respondent filed exceptions to the findings of fact and the conclusions of law flowing from those findings that he believes, and therefore argued, are "crucial" to finding that he violated the charged Rules and, on that basis and for that reason, recommends that the Court dismiss all charges. These findings of fact, and the related conclusions, are (1) that there was no lawyer client relationship established between the respondent and Ms, Akojie prior to the execution of the legal services agreement; (2) that the partial fee paid when the agreement was executed was not then earned and was paid in anticipation of future services; (3) that the only documented communications between the respondent and Ms Akojie was via electronic mail; (4) that the respondent failed to acknowledge receipt of faxed documents until May 14, ...


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