Circuit Court for Harford County Case No. 12-C-12-002736
Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ.
Petitioner, the Attorney Grievance Commission, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, attorney David Eugene Bocchino,  on September 27, 2012, pursuant to Maryland Rule 16-751(a). The Petition alleged that Respondent engaged in professional misconduct, in violation of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC"), in two separate client matters: his representation of Lisa and Montgomery Embrey in an automobile warranty action, and his representation of Lily Cleaves in a credit card debt collection matter. Specifically, the Petition alleged that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); and 8.4(a), (c), and (d) (misconduct) with respect to the Embreys, and 1.1; 1.3; 1.4(a) and (b); 1.15(a) (safekeeping property); 5.5(a) (assistance in the unauthorized practice of law); and 8.4(a), (c), and (d) with respect to Ms. Cleaves.
On October 1, 2012, this Court designated the Honorable M. Elizabeth Bowen of the Circuit Court for Howard County ("the hearing judge") to conduct an evidentiary hearing and file written findings of fact and conclusions of law pursuant to Maryland Rules 16-752(a) and 16-757(c). Judge Bowen held the hearing on January 29, 2013. She then filed her Statement of Findings of Fact and Conclusions of Law with this Court on April 10, 2013, concluding by clear and convincing evidence that Respondent violated MLRPC 1.1; 1.3; 1.4(a) and (b); and 8.4(a), (c), and (d) with respect to the Embreys, and MLRPC 1.1; 1.3; 5.5(a); and 8.4(a) and (d) with respect to Ms. Cleaves.
Based on the evidence accepted at the January 29, 2013, hearing, the hearing judge set forth the following findings of fact:
Respondent has been a member of the Bar of this Court since December 16, 1997. He practiced for a short time at a small private law firm before joining the Office of the Attorney General, where he worked for seven years until he took medical retirement. He established his own practice in 2008.
Representation of the Embreys
In 2009, Respondent assumed an "of counsel" position at the Ohio law firm of Kahn & Associates ("Kahn"), in which he represented the firm's clients in "lemon lawsuits" in Maryland. Another Kahn attorney, Christal Edwards, had filed suit on behalf of Lisa and Montgomery Embrey against General Motors ("GM") in the Circuit Court for Frederick County on August 6, 2009, alleging that the Embreys' Chevrolet malfunctioned. Kahn reassigned the case to Respondent in September 2009, but Respondent did not enter his appearance until October 27, 2009. On October 5, 2009, the Circuit Court issued a Scheduling Order and Order for Civil Mediation setting deadlines for discovery, designation of expert witnesses, motions, and mediation.
On October 27, 2009, the same day he entered his appearance, Respondent filed a Line to Enter Change of Address from Kahn's Ohio mailing address to 205 E. 28th Street, Baltimore, MD 21218. Within a month of entering his appearance, Respondent moved his office from the 28th Street location in Baltimore to his home in Abingdon. As a result, he began to employ P.O. Box 347, Abingdon, MD 21009 as his professional mailing address.
Respondent had not filed a second Line to Enter Change of Address with the Circuit Court. The attorney for GM in this matter, Barbara Duvall, acted as opposing counsel on numerous other unrelated cases with Respondent during this period and, as a consequence, was aware of his new mailing address. She thus addressed all correspondence in the Embreys' case to the Abingdon address and had all filings served there.
On November 13, 2009, Duvall mailed to Respondent interrogatories, a request for production of documents, and a request for admissions of fact. On December 16, 2009, the day on which responses were due, Respondent sent Duvall an email requesting an extension. Duvall consented to that request. Respondent, however, did not provide discovery by the date to which they had agreed. On January 12, 2010, Duvall sent to Respondent via email and regular mail a reminder that the extended deadline had passed, informing him that she would file a Motion to Compel Discovery if he did not provide responses by January 26, 2010. Respondent did not provide discovery, and on January 29, 2010, Duvall filed her Motion to Compel. Respondent filed no response to Duvall's motion. The Circuit Court granted the Motion to Compel on March 3, 2010, entering an order requiring an answer to discovery by March 8, 2010. Respondent never filed any discovery in the matter.
The October 5 Scheduling Order set December 12, 2009, as the deadline by which Respondent was to designate an expert witness in the Embreys' case. In a February 2, 2010, email to Duvall, Respondent admitted that he had failed to designate an expert witness in compliance with the Order. He requested an extension, to which Duvall did not acquiesce. On March 1, 2010, citing Respondent's failures to provide discovery and to designate an expert witness, GM filed a Motion for Summary Judgment. Respondent filed no opposition to the motion.
The October 5 Scheduling Order also mandated that the parties participate in mediation. Respondent and a paralegal at Duvall's law firm had corresponded over email in November 2009 and designated two mutually agreeable dates on which to schedule the mediation: March 2 and 3, 2010. The mediator sent his letter confirming March 3, 2010, as the chosen date to Christal Edwards. Respondent did not notify the Embreys of the two potential dates for the mediation and failed to confirm with Duvall's paralegal which date the mediator had selected. Neither Respondent nor the Embreys appeared at the mediation.
On March 12, 2010, Duvall filed a Motion for Sanctions, to which Respondent filed no opposition. On April 1, 2010, the Circuit Court granted the motion, dismissed the Embreys' case with prejudice, and assessed against the Embreys GM's attorney's fees and costs.
On June 7, 2010, Respondent filed a Motion to Vacate Judgment Due to Fraud, Mistake, or Irregularity. In the motion, Respondent stated that, because of his change of address, he "never received documentation of any kind from the court and only a few of Defendant's filings, " and he cited this as the reason the court should vacate the dismissal.He also stated in the motion that he had filed a Line to Enter Change of Address on October 27, 2010, though he filed this Line on October 27, 2009, and the address he submitted at that time was his Baltimore address. On June 24, 2010, the Circuit Court denied the motion.
When Kahn re-assigned the Embreys' case to Respondent, the firm informed Ms. Embrey and gave her Respondent's contact information. Respondent and Ms. Embrey communicated over email on October 13, 2009, regarding whether Ms. Embrey should take her car to an automobile mechanic for service, but Respondent did not contact her again until the end of January 2010. Although Ms. Embrey offered contradictory testimony about the extent of her attempts to contact Respondent during this period, Respondent testified that there was no great need for communication over those months. The hearing judge, however, found this three-month period to be a critical one, requiring client input for the purposes of responding to discovery, scheduling the court-ordered mediation, and giving an expert the opportunity to inspect the Embreys' car.
After the depositions on February 15, 2010, at which she learned that Respondent had failed to provide responses to GM's interrogatories, Ms. Embrey contacted Respondent frequently via telephone and email to request information about the status of her case. The hearing judge found that Respondent did not respond to these requests to his client's satisfaction.
Respondent admitted that he did not inform the Embreys of his failure to designate an expert witness or provide discovery, nor of GM's Motions to Compel Discovery, for Summary Judgment, and for Sanctions. He did inform Ms. Embrey that they had missed the court-ordered mediation, but later told her, incorrectly, that this was the reason her case had been dismissed. After the Circuit Court denied the Motion to Vacate, Respondent assured Ms. Embrey that he would file a Motion for Reconsideration, but he never did so.
Respondent also failed to communicate to the Embreys GM's repeated requests for a settlement demand. The hearing judge found this failure of communication to be incompetent given Respondent's acknowledgment that he did not believe the Embreys were entitled to the remedy they desired (replacement of their vehicle), and that Respondent's failure to comply with GM's discovery demands rendered his clients' case susceptible to dismissal.
Based upon these factual findings, the hearing judge concluded that Respondent violated MLRPC 1.1 (competence); 1.3 (diligence); 1.4(a) and (b) (communication); and 8.4(a), (c), and (d) (misconduct). The hearing judge explained her conclusions, as follows:
Rule 1.1 Competence
Respondent failed to provide competent representation to the Embreys. He failed to file any answers to GM's requests for discovery, despite reminders and extensions from opposing counsel and an additional five days for compliance given by the court in the order to compel. He failed to designate an expert in compliance with the deadline in the scheduling order, despite a clear understanding that this failure would prove fatal to his clients' lemon law case. Although opposing counsel took responsibility for coordinating a mutually agreeable mediation date, Respondent failed to verify and calendar the chosen date. As a result, he and his client failed to appear for mediation. Respondent failed to answer the motions to compel, for summary judgment and for sanctions which were the inevitable result of his inaction. Respondent's failures caused the dismissal of his clients' case and the entry of an order for sanctions against them. Respondent's conduct was in violation of Rule 1.1.
Rule 1.3 Diligence
Respondent failed to act with any diligence or promptness in his representation of the Embreys. Rather, his conduct was characterized by a self-defeating ineptitude and procrastination bordering on paralysis. He failed to notify the court of his current mailing address when he moved his office to Abingdon. He missed every discovery due date and court-ordered deadline. He allowed the date for designation of experts to pass without any action on his part to select or designate this crucial witness. Although the notice of the mediation session was mistakenly sent to Respondent's predecessor, a modicum of attention on Respondent's part could have avoided the failure to appear for the mediation. The Scheduling Order and Order for Civil Mediation was signed on October 5, 2009. Respondent and his opponent's paralegal narrowed the possible dates for the mediation session to two in their email exchange on November 18, 2009. The date chosen by the mediator for the mediation session was March 3, 2010. Had Respondent been working diligently to insure compliance with the October 5th Scheduling Order and Order for Mediation, he would have noticed that he had never received the mediation date in the ensuing three months and would have inquired of the court, the mediator, or his opponent's paralegal what date had been chosen. Given the mediator's error in misdirecting the notice, were this Respondent's only failure in the Embreys' case, it would have been excusable. In light of all the other failures to take any meaningful action on his clients' behalf, the failure to calendar and appear at the mediation session can only be regarded as another example of Respondent's neglect of the Embreys' case.
Further, Respondent failed to respond to Ms. Duvall's repeated requests for a settlement demand in November and December of 2009 and January of 2010, a request that she repeated even after Respondent's fatal failure to designate an expert to support his clients' claim. Certainly, at that juncture, settlement was Respondent's only hope to salvage any recovery for his clients, yet he failed to respond. In addition to his failure to comply with discovery, he failed to respond to GM's Motion to Compel and for Sanctions, Motion for Summary Judgment, or the second Motion for Sanctions. Even when at last he took the belated action of filing the Motion to Vacate Judgment, by waiting to file until more than thirty days after the entry of the judgment, he significantly limited the grounds on which the court could grant relief. Respondent's conduct violated Rule 1.3.
Rule 1.4 Communication
During his representation of the Embreys, Respondent repeatedly failed to inform them of important developments in their case. He failed to inform them of GM's discovery requests and the mediation date, which then denied them the opportunity to participate in the preparation and presentation of their case. He failed to inform them of the consequences of his discovery lapses, which were the filing of the motions to compel, for sanctions and for summary judgment. He repeatedly misled Ms. Embrey with promises that he would answer the discovery. He failed to report the missed deadline for expert designation and the impact of the loss of this crucial witness on the overall prospect for success in the case. He failed to communicate GM's multiple requests for a settlement demand. After the case was dismissed and the Motion to Vacate was denied, he failed to candidly inform Ms. Embrey that he would not seek reconsideration, but instead promised further action for six months.
As a result of Respondent's failure to provide basic information to the Embreys about the status of their case, they were unable to make informed decisions about the representation. Respondent's conduct violated Rule 1.4 (a) and (b).
Rule 8.4 Misconduct
Respondent's violations of the Maryland Lawyers' Rules of Professional Conduct establish a violation of Rule 8.4(a).
Respondent's misrepresentations to the Circuit Court for Frederick County in the Motion to Vacate Judgment due to Fraud, Mistake, or Irregularity which he filed on June 7, 2010, establish a violation of Rule 8.4(c). Respondent stated that "Plaintiff's counsel and Plaintiff never received documentation of any kind from the court and only a few of Defendant's filings." Contrary to Respondent's statement in the Motion to Vacate, Respondent stipulated that he received all of GM's discovery requests and GM's Motion to Compel and for Sanctions at his correct mailing address in Abingdon. As demonstrated by the certificates of service, GM's Motion for Summary Judgment and Motion for Sanctions were also sent to Respondent at his correct mailing address. Respondent further stated in the Motion to Vacate that he "did not become aware of the judgment and sanctions until the early part of May, 2010." Ms. Embrey's testimony that she discussed the dismissal of her case with Respondent in mid-April is corroborated by her email exchange with Respondent on April 20, 2010, in which Respondent promised to send a later email with the motion to vacate attached. Respondent also stipulated that he informed Ms. Embrey of the dismissal sometime in April, 2010.
The Embreys' case was dismissed due to Respondent's complete failure to respond to any of the discovery requests or motions of his opponent. Whatever the merits of the case might have been, Respondent's dereliction of his duty to his clients was the sole reason they lost the opportunity to have their day in court. Respondent's conduct ...