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Attorney Grievance Commission of Maryland v. Weiers

Court of Appeals of Maryland

October 22, 2014

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
DAUN ROBERT WEIERS

Argued September 4, 2014.

Page 333

Circuit Court for Prince George's County. Case No. CAE13-13555. Cathy Hollenberg Serrette JUDGE.

ARGUED BY JaCina N. Stanton, Assistant Bar Counsel (Glenn M. Grossman. Bar Counsel. Attorney Grievance Commission of Maryland) FOR PETITIONER

ARGUED BY Daun Robert Weiers, Esquire (Lexington Park. MD) FOR RESPONDENT

ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald, Watts, JJ. Opinion by Greene, J.

OPINION

Page 334

[440 Md. 295] Greene, J.

The Attorney Grievance Commission of Maryland (" Petitioner" ), acting pursuant to Maryland Rule 16-751(a), filed a " Petition for Disciplinary or Remedial Action" against Daun Robert Weiers (" Respondent" or " Weiers" ) on April 15, 2013. Petitioner charged Respondent--admitted to the Bar of this Court on December 14, 1973--with violations of Maryland Lawyers' Rules of Professional Conduct (MLRPC) 1.1 (Competence),[1] 1.15(a) and (c) (Safekeeping Property),[2] 1.5(a) (Fees),[3]

Page 335

8.1(b) (Bar Admission and Disciplinary Matters),[4] and [440 Md. 296] 8.4(d) (Misconduct),[5] and Maryland Rules 16-606.1 (Attorney Trust Account Record-Keeping)[6] and 16-607

Page 336

(Commingling of [440 Md. 297] Funds).[7] The alleged violations stem from Mr. Weiers's (1) [440 Md. 298] admitted failure to keep time records, (2) payment to himself from the Crescendo Realty, LLC retainer without obtaining the consent of his client, Mr. Hulamm, (3) typographical error on his trust ledger, (4) failure to withdraw the earned remainder of his retainer within a reasonable amount of time, and (5) reluctant, begrudging cooperation with Bar Counsel's lawful requests during the course of his investigation.

I. Findings of Fact and Conclusions of Law

This Court referred the matter to Judge Cathy H. Serrette of the Circuit Court for Prince George's County for an evidentiary hearing and to issue findings of fact and conclusions of law pursuant to Md. Rule 16-757. Following a hearing on September 17, 2013, Judge Serrette issued Findings of Fact and Conclusions of Law, in which she determined that Mr. Weiers had violated MLRPC 1.15(a) and 8.1(b), as well as Maryland Rule 16-607. In reaching this determination, Judge Serrette made the following findings:

Findings of Fact
Respondent attended Carnegie Mellon University for his undergraduate studies and the University of Maryland [440 Md. 299] School of Law to study law. He was admitted to practice in Maryland in 1973 and maintains a sole practice in Leonardtown, Maryland. In 2009, his main areas of practice included general civil law, criminal law, and domestic relations. Currently, he is practicing on a limited basis.
On or about January 7, 2009, Van Hulamm hired Respondent on behalf of Crescendo Realty, LLC, Mr. Hulamm's company, to provide legal services related to the removal of a fence on neighboring property, which blocked access to a parking lot used by businesses renting space from Crescendo Realty, LLC. Respondent and Mr. Hulamm orally agreed that Crescendo Realty, LLC, would pay a non-refundable retainer fee of $1,000.00, with excess work to be billed at the rate of $150.00 per hour, plus $30.00 per letter and telephone call. Respondent immediately deposited the retainer fee into his client trust account.

Page 337

The level of communication between Respondent and the client during the course of the representation was disputed. Mr. Hulamm averred that he did not hear from or again meet with Respondent until 2010, when he alerted Respondent to the fact that the fence had been removed by a third party. Respondent testified that Mr. Hulamm frequently called and visited the office throughout 2009, sometimes casually and sometimes to discuss legal matters. Respondent also produced a September 8, 2009 e-mail from Mr. Hulamm seeking legal advice regarding a complaint that Mr. Hulamm had filed with the Circuit Court. Respondent's recitation of the contact between Mr. Hulamm and Respondent is credited.
On or about January 27, 2009, Respondent wrote a check to himself for $300.00 from his attorney trust account. The memo of the check read: " Earned Fee--Tighe/Crescendo." On or about March 13, 2009, Respondent wrote a check to himself for $300.00 from the trust account, with the check memo reading: " Earned Fee--Crescendo/Perrone." On March 18, 2010, Respondent withdrew $700.00 from the trust account. The check memo read: " Fee--Crescendo Realty."
[440 Md. 300] Petitioner mistakenly alleged that Respondent paid himself $1,300.00 when he had only deposited $1,000.00 on behalf of Hulamm/Crescendo Realty, LLC. Petitioner's confusion arose from the fact that, as indicated on the memos, the January 27, 2009, and March 13, 2009 checks covered payments from more than one client.
Pursuant to the retainer agreement, Respondent researched various options for removal of the fence obstructing access to Hulamm/Crescendo Realty's parking lot. None of the options researched proved favorable to Mr. Hulamm's case.
In early 2010, the fence was removed. Mr. Hulamm advised Respondent and asked for a refund of the retainer. On November 17 and 21, 2011, Mr. Hulamm left notes for Respondent seeking a refund. Mr. Hulamm next reached out to Mr. Slade, a mutual friend who had introduced Mr. Hulamm to Respondent. Mr. Slade spoke with Respondent, who agreed to return $500.00 of the retainer fee, as an alternative to " having [Mr. Hulamm] pestering me and bad mouthing me all over town." Mr. Hulamm sent an email to Respondent on or about January 11, 2012, confirming the agreement. He added that should the $500.00 not be received by January 17, 2012, Mr. Hulamm would expect a full $1,000.00 refund. Mr. Hulamm did not receive the money ...

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