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Attorney Grievance Commission of Maryland v. Framm

Court of Appeals of Maryland

August 24, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
RHONDA I. FRAMM

          Argued: February 4, 2016

          Reargued: June 2, 2016

         Circuit Court for Baltimore County Case No. 03-C-14-013918.

          Barbera, C.J., [*] Battaglia Greene Adkins McDonald Watts Hotten, JJ.

          OPINION

          Barbera, C.J.

         Petitioner, the Attorney Grievance Commission of Maryland ("Commission"), filed in this Court on December 15, 2014, a Petition for Disciplinary or Remedial Action against Respondent, Rhonda I. Framm. The Commission charged Respondent with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.1 (competence); 1.2 (scope of representation); 1.3 (diligence); 1.4 (communication); 1.5 (fees); 1.7 (conflict of interest); 1.15 (safekeeping property); 3.3 (candor toward the tribunal); 8.4(a), (c), and (d) (misconduct), and Maryland Rule 16-606.1 (attorney trust account record-keeping)[1]. Those charges arise from Respondent's representation of Robert L. Wilson and her subsequent suit against Mr. Wilson for attorney's fees. On December 16, 2014, this Court transmitted the matter to the Circuit Court for Baltimore County and designated the Honorable John J. Nagle, III ("the hearing judge") to conduct an evidentiary hearing and make findings of fact and conclusions of law.

         The hearing judge presided over a hearing on June 1, 2, and 3, 2015, at which Respondent testified and presented evidence. On September 1, 2015, the hearing judge issued written findings of fact and conclusions of law, concluding that Respondent violated MLRPC 1.4, 1.7, 1.15, 3.3, 8.4(a) and (c), and Maryland Rule 16-606.1(a), but did not violate MLRPC 1.1, 1.2, 1.3, or 1.5. The hearing judge drew no conclusion on the charged violation of MLRPC 8.4(d).

         Both Petitioner and Respondent filed exceptions. Bar Counsel, on behalf of Petitioner, excepted to the hearing judge's failure to make certain findings of fact and render a conclusion as to MLRPC 8.4(d). Petitioner also excepted to the hearing judge's conclusion that Respondent did not violate MLRPC 1.1, 1.2, 1.3, and 1.5 and the hearing judge's failure to find the presence of certain aggravating factors. Respondent challenged the hearing judge's conclusions that she violated any of the charged rules of professional conduct, aside from MLRPC 1.15 and Maryland Rule 16-606.1(a).

         Following oral argument on February 4, 2016, we issued an Order of Remand instructing the hearing judge to make additional findings of fact and clarify his conclusions of law regarding MLRPC 3.3(a)(1), 8.4(c), and 8.4(d). Thereafter, the hearing judge issued Supplemental Findings and Conclusions of Law ("supplemental findings"), finding additional facts as set forth in Petitioner's exceptions, finding that Respondent's actions that constituted violations of MLRPC 3.3(a)(1) and 8.4(c) were done intentionally, and concluding that Respondent violated MLRPC 8.4(d).

         Petitioner and Respondent each filed responses to the supplemental findings. Petitioner withdrew its exception to the hearing judge's failure to make findings of fact and render a conclusion as to MLRPC 8.4(d) and renewed its remaining exceptions. Respondent renewed her previously filed exceptions and excepted to all of the additional findings and conclusions made in the supplemental findings.

         For reasons we shall explain, we agree with the hearing judge that Respondent violated MLRPC 1.4; 1.7; 1.15; 3.3; and 8.4(a), (c), and (d); as well as Maryland Rule 16-606.1(a), but did not violate MLRPC 1.3. Moreover, we agree with Petitioner that Respondent's misconduct also violated MLRPC 1.1, 1.2, and 1.5.

         I.

         The hearing judge made the following findings of fact by clear and convincing evidence.[2] Respondent was admitted to the Bar of the Court of Appeals of Maryland on December 1, 1981, and maintains a solo law practice in Baltimore County. Respondent's interaction with Robert L. Wilson began subsequent to a then-recently entered judgment of divorce in the Circuit Court for Baltimore County before the Honorable Sherrie R. Bailey ("the divorce case"). On June 17, 2010, Mr. and Mrs. Wilson, through their respective counsel, had negotiated the terms of a settlement agreement in the divorce case, in which, relevant here, Mr. Wilson would pay Mrs. Wilson $55, 000 plus interest over the next five years or $50, 000 within sixty days. Judge Bailey accepted the settlement agreement and entered accordingly a judgment of absolute divorce.

         Mr. Wilson first met Respondent for an initial consultation on June 23, 2010, to assist him in vacating the divorce judgment because he did not understand the settlement agreement and was dissatisfied with its terms. He retained Respondent on June 24, 2010. Mr. Wilson signed a retainer agreement providing that he would pay an initial retainer of $10, 000 and Respondent would bill at an hourly rate of $425. On June 25, 2010, Mr. Wilson paid Respondent $10, 125. Respondent admitted that she failed to create and maintain records of Mr. Wilson's payments and consequently conceded that she violated Maryland Rule 16-606.1(a).

         Mr. Wilson typically sought and received help from his friend, Sandra McLean-Stewart ("Ms. Stewart"), and his cousin, Kevin Griggs, in understanding complex information, including legal documents. As described by Mr. Griggs, Mr. Wilson was able to understand "not too complicated matters" if they were broken down and explained slowly. Ms. Stewart accompanied Mr. Wilson to one of the three initial meetings with Respondent, but not the meeting at which he signed the retainer agreement.

         Divorce Case: Psychological Evaluation and Motion to Vacate

         After consulting with Mr. Wilson, Respondent concluded that Mr. Wilson had significant claims to a portion of Mrs. Wilson's marital property. Respondent also recognized that Mr. Wilson had a diminished capacity to understand information and explained to him that, although vacating the settlement agreement underlying the divorce judgment would be difficult, he might be successful if he could prove that he was incapacitated. Respondent referred Mr. Wilson to a psychologist, Morris S. Lasson, Ph.D., P.A., to determine whether there were sufficient grounds for Mr. Wilson to file a motion to vacate the settlement agreement on the ground of incapacity.

         On June 28, 2010, Dr. Lasson conducted an initial evaluation of Mr. Wilson and concluded in a written report that Mr. Wilson had a neuro-cognitive disorder that impaired his ability to comprehend complex information. Dr. Lasson noted that Mr. Wilson suffered a stroke around 1964 that affected his speech and memory. Dr. Lasson explained in his report:

[Mr. Wilson]'s physical appearance was satisfactory. At the same time, his orientation to time, person and place was erratic. He had difficulty absorbing details and showed lapses of attention. He was unable to maintain concentration explaining, "I need time to think it out." Mr. Wilson recited the alphabet incorrectly on his fingers. He did not know the name of the U.S. president nor was he aware of today's date. He showed both expressive and receptive aphasia and speech stammering. His memory was flawed. He showed difficulty with encoding, retrieval and focusing skills. This man cannot process information fluidly and has sensory integration problems.
With reasonable psychological certainty, Robert Wilson has a neuro-cognitive disorder and cannot be held responsible to fully understand complex information and details.

         On July 1, 2010, Respondent, on behalf of Mr. Wilson, filed a motion to vacate the divorce judgment and attached Dr. Lasson's report. In the motion, Respondent argued that Mr. Wilson lacked the capacity to understand the settlement agreement and consequently could not consent to it. Respondent further requested an extension of time for a complete psychological evaluation of Mr. Wilson to determine whether he required a guardian. Mrs. Wilson, through her attorney, Diana Denrich, filed a response in opposition to the motion to vacate the judgment.

         Dr. Lasson conducted a complete evaluation of Mr. Wilson and issued a report, dated August 9, 2010, in which he opined that Mr. Wilson should have a legal guardian. In the August 2010 report, Dr. Lasson explained that Mr. Wilson has a cognitive impairment that affects "his ability to understand and comprehend both the written and spoken word. He should be counseled constantly not to sign any documents and, even in a verbal encounter, he should have guidance and direction to be absolutely certain that he understands to the best of his ability[.]" Dr. Lasson also stated that, "[w]hen asked to count from 20 to 0 backwards, [Mr. Wilson] forgot specific numbers." On August 16, 2010, Respondent wrote to Ms. Denrich to explain that she was in the process of having a guardian appointed for Mr. Wilson. Respondent attached to that correspondence Dr. Lasson's August 2010 report.

         Guardianship Case: The First Petition

         On April 20, 2011, Respondent filed a Petition for Appointment of Guardian of the Property of Robert Wilson in the Circuit Court for Baltimore County ("the guardianship case"). In that petition, Respondent listed Mr. Wilson as the Petitioner and named Mr. Griggs as the person Mr. Wilson wished to be appointed as his guardian. Respondent attached certificates from Dr. Lasson and Mr. Wilson's treating physician, Beth Marcus, M.D., to show that Mr. Wilson had capacity to consent to a guardian. Those certificates were not verified and did not include the doctors' full names, qualifications, history with Mr. Wilson, or opinions as to the cause and extent of his disability.

         Two days later, the Circuit Court rejected the petition because it did not comply with Maryland Rule 10-301 and the certificates did not comply with Maryland Rule 10-202. Before the hearing judge, Respondent testified that she did not receive the court's rejection until it was produced in the disciplinary investigation. Yet, by August 4, 2011, Respondent had known that the petition ("the first petition") had been rejected, as she drafted a new petition for guardianship naming Mr. Griggs as the Petitioner. Mr. Griggs signed and returned the new petition to Respondent on August 10, 2011. Respondent, however, did not file that petition ("the second petition") until November 2011.

         Divorce Case: Petition for Civil Constructive Contempt

         Meanwhile, on October 26, 2011, Mrs. Wilson, having received no communication from Respondent for more than a year after the filing of the motion to vacate the judgment of divorce, filed, through her counsel, Ms. Denrich, a Petition for Civil Constructive Contempt seeking to advance the case and obtain a hearing before Judge Bailey on the motion to vacate.

         On November 2, 2011, the Circuit Court issued a Show Cause Order why Mr. Wilson should not be found in contempt. Respondent mailed Mr. Wilson a copy of the Order on November 8, 2011, and stated in a cover letter that Mr. Wilson had to pay her $7, 500 to answer the petition and defend him at the hearing. Mr. Wilson paid the requested amount. Later that month, Respondent filed a motion to strike the petition for contempt and, insofar as the record reflects, there was no further action taken on the petition and Mr. Wilson ultimately was not held in contempt.

         Guardianship Case: The Second Petition

         On November 18, 2011, Respondent filed the second petition for guardianship, this time naming Mr. Griggs as the Petitioner. A few days later, the Circuit Court rejected the second petition because once again the physicians' certificates failed to comply with the applicable rules. On January 10, 2012, Respondent filed amended certificates. The court thereafter accepted that petition.

         On January 17, 2012, the court appointed Katherine Linzer, Esq. to represent Mr. Wilson in the guardianship proceeding. On March 14, 2012, Ms. Linzer, on behalf of Mr. Wilson, filed an answer in opposition to the petition. In the answer, Mr. Wilson denied that he was disabled and requested that the petition be dismissed. Attached to the answer was a certificate from Mr. Wilson's treating physician, Dr. Marcus, attesting to his capacity to understand certain legal documents.

         On April 10, 2012, Respondent, on behalf of Mr. Griggs, filed an opposition to the answer arguing that Mr. Wilson is incapable of making decisions on his own and requires a guardian to act on his behalf. Respondent asserted that, "contrary to the assertions made by attorney Katherine Linzer on Mr. Wilson's behalf, Mr. Wilson suffers from a mental disability that his psychologist states causes cognitive and processing deficiencies that render Mr. Wilson incapable of both comprehending and making decisions on his own." Respondent also argued that "Mr. Wilson presently cannot sufficiently process nor make decisions concerning the management of his property and investments when [the] same involve holding several facts in [his] mind, " nor is it "clear that Mr. Wilson would even have sufficient capacity to designate a power of attorney."

         The Circuit Court issued a writ of summons to Mr. Wilson and scheduled trial for June 26, 2012. Respondent sent Mr. Griggs a letter dated May 16, 2012, informing him of the guardianship trial and attaching the writ of summons.

         Mr. Griggs and Mr. Wilson received conflicting advice from Ms. Linzer and Respondent. Ms. Linzer advised them that, if a guardian were appointed, Mr. Wilson would lose his ability to make financial decisions. In contrast, Respondent advised that Mr. Wilson would retain some of his rights even if Mr. Griggs became his guardian. Mr. Griggs and Mr. Wilson decided that they no longer wanted to pursue the guardianship. On June 1, 2012, Mr. Griggs faxed Respondent a hand-written letter notifying her that he wanted to withdraw the guardianship petition immediately. Upon receiving Mr. Griggs's letter, on June 19, 2012, Respondent filed a motion to withdraw the guardianship petition, which was granted. Respondent never told Mr. Griggs or Mr. Wilson that there was a potential for a conflict of interest.

         Ms. Linzer subsequently filed a request for attorney's fees, which Respondent did not oppose. On October 19, 2012, the court ordered Mr. Wilson to pay Ms. Linzer $1, 120.06 in attorney's fees. Respondent took no further action to pursue the guardianship.

         Divorce Case: Dr. Lasson's Deposition

         Meanwhile, in December 2011, Judge Bailey scheduled a hearing on the motion to vacate the settlement agreement and judgment of divorce to be held on February 24, 2012. On January 5, 2012, Respondent informed Mrs. Wilson's counsel, Ms. Denrich, that she intended to introduce Dr. Lasson's reports at that hearing. Ms. Denrich objected to the introduction of Dr. Lasson's reports without his testimony. Respondent then unilaterally scheduled Dr. Lasson's deposition for February 7, 2012. On January 13, 2012, Respondent's paralegal sent an email to Ms. Denrich, informing her of the scheduled deposition and asking her to provide other dates if she was unavailable.

         Ms. Denrich responded on January 16, 2012, advising that she was not available on February 7, 2012, and proposing six alternate dates prior to the hearing. Respondent refused to reschedule the deposition because Dr. Lasson was only available on February 7, 2012. On January 24, 2012, Ms. Denrich served by first-class mail a motion for a protective order seeking to stop Dr. Lasson's deposition and a motion to shorten time to respond. On February 2, 2012, Respondent opposed the motion for a protective order, but the court had no opportunity to rule on it prior to the scheduled deposition because the motion had not been docketed. On February 7, 2012, Respondent took Dr. Lasson's de bene esse deposition in Ms. Denrich's absence. Dr. Lasson testified that Mr. Wilson lacks the cognitive capacity to understand basic information. Dr. Lasson emphasized that Mr. Wilson had difficulty processing "basic information much less complicated ones." He explained that:

[I]f you said, sign here, he would be able to do it. But if you tell him, now, before you sign here, I just want to explain to you what this is, and you get involved in some type of detailed explanation, I believe he would lose you and not understand. He may even be embarrassed to say that he doesn't understand at times. . . . But he would not be able to retain basic information that you have given him and just not understand what he has to do.

         As to legal matters, Dr. Lasson said that, "if something is involved either legally or any other way with a lot of different facts and information, [Mr. Wilson] would have extreme difficulty processing that and understanding it."

         At the hearing on February 24, 2012, Judge Bailey granted the motion for a protective order, prohibiting Respondent from using Dr. Lasson's deposition and postponing the matter to allow the parties to retake the deposition. The court did not enter a written order to that effect at that time. Between February 2012 and May 2012, Respondent did not reschedule Dr. Lasson's deposition, as she did not believe that she was obligated to do so because that responsibility was borne by Ms. Denrich at Mrs. Wilson's expense.

         On May 4, 2012, upon Ms. Denrich's request, Judge Bailey entered an order that prohibited the use of Dr. Lasson's deposition, ordered Dr. Lasson to be deposed within sixty days at Ms. Denrich's convenience, required Mr. Wilson to pay the costs of the deposition, and ordered that the failure to comply with the order would result in Dr. Lasson's being precluded from testifying at trial.

         Mr. Wilson asked Respondent for clarification regarding that order. By letter dated May 31, 2012, Respondent wrote to Mr. Wilson: "As Dr. Lasson has to be paid before the deposition is to occur, and as Ms. Denrich was given at least one month's notice of [Dr. Lasson's] deposition (with no objection ever noted from her), I took Dr. Lasson's deposition as planned and sent her a copy of my questioning and Dr. Lasson's responses." The hearing judge found that this was an intentional misrepresentation to Mr. Wilson.

         On May 30, 2012, Ms. Denrich and Respondent agreed to reschedule Dr. Lasson's deposition for August 8, 2012, despite being outside of the court's sixty-day timeframe. Yet, on June 18, 2012, Respondent noted Dr. Lasson's deposition by written questions.[3]

         On July 3, 2012, Ms. Denrich filed a motion to strike the deposition by written questions. Respondent filed an opposition to the motion to strike, in which she claimed that she had tried to schedule a date for Dr. Lasson's second deposition after the court's May 4, 2012, order but "Ms. Denrich again would not supply dates on which she would commit to being available for [Dr. Lasson's] deposition." The hearing judge found that this statement was an intentional misrepresentation to the court because Ms. Denrich responded to Respondent and the parties agreed upon a new date. On July 24, 2012, Judge Bailey granted the motion to strike, ordered that Mr. Wilson was prohibited from using Dr. Lasson's deposition or calling Dr. Lasson at trial, and awarded Mrs. Wilson $600 in attorney's fees, for which Respondent and Mr. Wilson were jointly and severally liable. On August 2, 2012, Respondent filed a motion to vacate and reconsider the court's order prohibiting Dr. Lasson's testimony and issuing sanctions.

         Divorce Case: Motion to Withdraw and Court Psychiatrist

         On August 21, 2012, Mr. Wilson discharged Respondent. In response, Respondent sent Mr. Wilson a letter informing him of her intent to withdraw as counsel in the divorce case. Respondent mailed to the court a motion to withdraw, but neither the court nor Ms. Denrich received the motion.

         On September 14, 2012, Judge Bailey held a hearing on Respondent's motion to vacate the divorce judgment and her motion to vacate and reconsider Judge Bailey's order dated May 4, 2012.[4] At the outset of the hearing, Respondent gave Judge Bailey a copy of her motion to withdraw. In support of that motion, Respondent explained that Mr. Wilson has a diminished capacity and that, pursuant to MLRPC 1.14, [5] she had obtained a medical report stating that Mr. Wilson requires a guardian, and she had attempted to have one appointed. Respondent further argued, "I cannot represent Mr. Wilson because I do not have any source of competent explanation of what he wants and if he has even understood what it is that he wants me to do for him." Respondent called Ms. Stewart and Mr. Griggs to testify that Mr. Wilson lacks capacity to handle his medical and financial decisions. Mr. Wilson, evidently changing his mind, testified that ...


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