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Attorney Grievance Commission of Maryland v. Merkle

Court of Appeals of Maryland

November 24, 2014


Argued October 6, 2014.

As Amended December 2, 2014.

Page 680

Circuit Court for Prince George's County. Case No. CAE13-15574. Herman C. Dawson JUDGE.

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

ARGUED BY Patrick Guy Samuel Marie Merkle (Washington, DC) FOR RESPONDENT.

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


Page 681

[440 Md. 612] Greene, J.

On January 23, 2013, the Attorney Grievance Commission of Maryland (" Petitioner" ), acting pursuant to Maryland Rule 16-751(a), directed Bar Counsel to file a " Petition for Disciplinary or Remedial Action" against Patrick G. Merkle (" Respondent" or " Merkle" ). Petitioner charged Respondent with several violations of the Maryland Lawyers' Rules of Professional Conduct (" MLRPC" or " Rules" ), specifically MLRPC 1.1 (Competence),[1] 1.2 (Scope of Representation and Allocation [440 Md. 613] of Authority Between Client and Lawyer), [2]

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1.3 (Diligence),[3] 1.4 (Communication),[4] 1.6 (Confidentiality of Information),[5] 7.3 [440 Md. 614] (Direct Contact with Prospective Clients),[6] and 8.4 (Misconduct).[7]

I. Findings of Fact and Conclusions of Law

We referred the instant matter to Judge Herman C. Dawson 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. After conducting a hearing, Judge Dawson issued Findings of Fact and Conclusions of Law, in which he concluded that no violation of MLRPC 1.1, 1.3, 1.4, 7.3, and 8.4 had occurred.[8] In reaching

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this conclusion, Judge Dawson made the following findings:

Findings of Fact
Respondent is admitted to the Maryland and District of Columbia Bars. Respondent maintains a law office located at [440 Md. 615] 2120 L. Street, NW, Washington DC. His primary areas of practice include various types of civil litigation matters involving property rights.
Respondent met Sheila Coates-Black[9], the Complainant, in October of 2008 while in the office of the Clerk of the District Court in the Prince George's County Courthouse. While Ms. [Coates] was attempting to fill out a protective order, the Respondent informed her that she was filling out the form incorrectly. Respondent gave Ms. Coates his business card and informed her that he was an attorney. They began to discuss her possible divorce case as well as a case that he was researching for a personal injury client at Rosaryville Park.
Respondent informed Ms. Coates that he had to visit Rosaryville Park that afternoon. He expressed that he was willing to meet with her further so the two, in separate vehicles, drove to Rosaryville Park. Once at the park, Respondent and Ms. Coates discussed her case further, exchanged telephone numbers, and departed from the park shortly after.
Dating back to the initial meeting in October 2008, the Respondent[] and [Ms.] Coates[] exchanged multiple emails and internet communication prior to executing the two retainer agreements in March 2010. On November 18, 2008, Respondent forwarded Ms. Coates an electronic mail message containing information about a jazz club in the D.C. area. The email stated, " Dear Tahlibah, when I heard that you went to a jazz club, this is what I thought of. I have been on the emailing list for Shore Jazz for years and keep them in mind."
Petitioner introduced an email from Respondent to [Ms.] Coates from December 10, 2008 in which he outlined a proposed course of action which included [Respondent's] statement that [Ms.] Coates should " . . . not hesitate to [440 Md. 616] consult another lawyer, if you are not satisfied with my approach or have any reservations about working with me, including that I might call you when I'm working on your case at 11:00 p.m. . . . I will, of course, defer to your instructions." Petitioner offered no evidence that [Ms.] Coates accepted [Respondent's] offer of representation which was inherently contained in this email.
During 2009, the Respondent and Ms. Coates became friends on Facebook. On August 5, 2009, Ms. Coates posted two pictures to her Facebook page. The first picture contained a message stating, " Erica, Shirrell (Ms. Coates'[s] daughter), myself and Mr. Tolbert (a friend of Ms. Coates) we were at a black tie affair [sic]."
On November 11, 2009 at 10:20 a.m., Respondent posted a message to Ms.

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Coates'[s] Facebook page claiming, " Maybe that's me on Shirrell's tattoo!" Although Respondent testified that the picture of Mr. Tolbert previously had his name, there was no evidence produced of said posting during this hearing.
On November 11, 2009 at 4:59 p.m., Ms. Coates posted a response to Respondent's message stating, " Funny! Please pardon me I missed that appointment in D.C."
On August 5, 2009, Ms. Coates posted a second picture to her Facebook page depicting guests at an " all-white" party. Respondent responded to Ms. Coates'[s] picture, " This looks more like an All-Black Party to me!"
Respondent also posted two other Facebook comments in 2009. Although Respondent claims that his representation of Ms. Coates did not commence until February 2010, Ms. Coates'[s] Facebook page describes a missed appointment in D.C. with Respondent in early November 2009.
While these communications did occur, Respondent testified that the two ceased to communicate on Facebook after the execution of the retainer agreements. Two retainer agreements were signed in March 2010. Respondent's representation of [Ms.] Coates did not commence until they affirmatively executed the two retainer agreements in [440 Md. 617] March 2010 following an escalation of conflict in [Ms.] Coates'[s] divorce matter.
In the months immediately prior to the execution of the retainer agreement, there was a great deal of email traffic between Respondent and Ms. Coates. At one point, [Respondent] invited [Ms.] Coates to stay in a furnished apartment as an escape from the declining relationship between Ms. Coates and her husband. On March 8, 2010, [Respondent] declared in an email, " I can say with confidence that you are at a point where you need representation. We need to schedule an appointment." In this email exchange, [Ms.] Coates stated that she would come in on Wednesday, which was March 10th. Further, [Ms.] Coates conveyed in her email detailed information she had obtained about her husband's preparation for divorce and that he was telling his lawyer that he, [Ms.] Coates's husband, was considering paying her $21,000.00 for [Ms.] Coates to move out and resolve the divorce case in its entirety.
Respondent filed both a divorce action and another civil action alleging libel and slander against [Ms.] Coates's husband, based on the claim that he lied to obtain the protective order he requested on March 5, 2010. Respondent acknowledged that filing the libel suit was risky because a party is largely immunized against making libelous or slanderous statements against another party during litigation. The case was filed as an intentional tort for three reasons: First, he had been very successful in using suits for intentional tort as a way of substantially enhancing financial settlement for clients facing the end of a short-duration marriage who were victims of spousal abuse. Second, since the cause of the breakup of a marriage is only one of many factors for the court to consider in making an award for equitable distribution, Respondent's experience was that spousal abuse is simply not compensated, compared to the potential results of a parallel suit for intentional tort. Third, there was no actual physical contact between [Ms.] Coates and her husband upon which to base a suit for intentional tort. Respondent's emphasis on the underlying [440 Md. 618] facts of the libel and slander case instead of seeking limited divorce based on cruelty was

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simply a strategy and [Ms.] Coates was fairly informed about the advantages and disadvantages of this strategy.
Respondent finalized the draft of the complaint for divorce during the week of July 2, 2010, which was during his week at Scout camp. He forwarded the complaint to Ms. Coates by email. Ms. Coates filed the divorce case on July 6, 2010 herself and had a third person serve it upon her husband. Respondent contends that there was not a lapse of professional responsibility in having [Ms.] Coates, who was plainly familiar with the process of filing lawsuits, based on the multiple protective order and civil claim filings she filed[,] . . . file and provide for service for her own divorce case.
Petitioner asserted that the Respondent never filed a financial statement that should accompany the complaint for divorce. Counsel for Ms. Coates's former husband, Aubrey Burton, testified that the parties agreed to early mediation. [Mr.] Burton served discovery requests, but only discussed delivery of discovery responses with Respondent after Respondent agreed to vacate the default against [Mr.] Burton's client in May 2011, entered because [Mr.] Burton had not responded to the Court's order of September 24, 2010 by filing an answer for [Mr.] Black. He testified that the case got going on a fast track after the order to vacate default was entered, and corroborated Respondent's testimony that the parties attempted to bifurcate the case and get a divorce hearing on May 24, 2011, reserving equitable distribution until later, but were thwarted in this effort by the hearing Master.
[Mr.] Burton further testified that he did not file a motion to compel discovery. The letter to [Respondent] of November 22, 2010 is not a demand letter required under the discovery rules prior to filing a motion to compel or for discovery sanctions. It simply states that [Mr.] Burton will " provide your client with discovery materials once your client complies with his Interrogatories and Request for [440 Md. 619] Production of Documents. Please notify me of when your client intends to provide responses to Mr. Black's discovery responses (sic)."
Respondent referred to Ms. Coates as a " high maintenance" client. Because of the high level of attention that Ms. Coates demanded, Respondent assigned the task of dealing with her to his legal assistant, Kay Feegle. Ms. Feegle assisted Ms. Coates with the preparation of her discovery requests.
On July 7, 2011, Ms. Coates testified during the pendente lite hearing before Master Paul Eason in the Circuit Court. Respondent called Ms. Coates as a witness and asked her questions about her income. Respondent did not introduce documentation of Ms. Coates'[s] medical bills. He also did not introduce any evidence to corroborate her income during the hearing. Respondent did not call Mr. Black to the stand or demonstrate that Mr. Black had the ability to pay temporary alimony using documentation he received earlier in the year from Ms. Coates. Master Eas[]on denied Ms. Coates'[s] request for pendente lite alimony for insufficient evidence. After the hearing, Ms. Coates, Mr. Black, Mr. Burton and Respondent met in the courthouse to discuss how Ms. Coates would obtain portions of her personal belongings from the marital home.
Although Respondent testified that Ms. Coates requested his assistance in moving items from the marital home, both Mr. Burton and Ms. Coates testified that Respondent offered to move Ms. Coates'[s] personal belongings. Mr. Burton ...

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