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Attorney Grievance Commission of Maryland v. Johnson

Court of Appeals of Maryland

December 14, 2016

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
JEROME P. JOHNSON

          Argued: November 4, 2016

         Circuit Court for Harford County Case No. 12-C-16-000253

          Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.

          OPINION

          Watts, J.

         This attorney discipline proceeding involves a lawyer who failed to diligently represent a client, failed to adequately communicate with the client, failed to take steps to protect the client's interests after the lawyer's representation ended, failed to respond to Bar Counsel's numerous lawful demands for information, and engaged in conduct that was prejudicial to the administration of justice.

         Terrance Venable, Jr. ("Venable") retained Jerome P. Johnson ("Johnson"), Respondent, a member of the Bar of Maryland, to represent him in a child support case in the Circuit Court for Anne Arundel County ("the circuit court"). Despite having advised in open court at a hearing before a magistrate that he would enter his appearance in the child support case, Johnson neither filed his appearance with the circuit court's Civil Department nor paid the appearance fee. After the hearing, the magistrate issued a Report and Recommendations, and Venable asked Johnson to file exceptions. Johnson agreed to do so, and charged an additional fee for the exceptions. Johnson failed to timely file the exceptions; instead, he mailed the exceptions to the circuit court on or after the due date. The circuit court closed the child support case, and the Civil Department returned the exceptions to Johnson. Johnson did not make any attempt to rectify the consequences of his failure to file his appearance or pay the appearance fee, such as refunding the fee for the exceptions. Johnson did not inform Venable that he had failed to pay the appearance fee, that he had mailed the exceptions late, and that the circuit court's Civil Department had returned the exceptions. Additionally, Johnson failed to respond to Venable's requests for updates about the child support case. Venable ultimately filed a complaint against Johnson with Bar Counsel.

         On January 21, 2016, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Johnson, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.3 (Diligence), 1.4(a)(2), 1.4(a)(3), 1.4(b) (Communication), 1.5(b) (Communication of Fees), 1.16(d) (Terminating Representation), 8.1(b) (Disciplinary Matters), 8.4(d) (Conduct that Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).[1]

         On January 27, 2016, this Court designated the Honorable Yolanda L. Curtin ("the hearing judge") of the Circuit Court for Harford County to hear this attorney discipline proceeding. On February 16, 2016, the Petition for Disciplinary or Remedial Action was personally served on Johnson. Johnson's answer to the Petition for Disciplinary or Remedial Action was due fifteen days later, on March 2, 2016. Johnson failed to file an answer by the due date.

         On March 21, 2016, Bar Counsel filed with the hearing judge a Motion for Order of Default. On March 22, 2016, twenty days after the due date, Johnson filed with the hearing judge a "Motion to Extend Time to Answer Complaint" ("the motion to extend time"). In the motion to extend time, Johnson stated that he had been attempting to retain counsel and was "submitting a request to the [Attorney Grievance] Commission in an attempt to resolve the" attorney discipline proceeding. Johnson stated that he requested additional time to file an answer so that he could consult with and/or retain counsel, and await a response from the Attorney Grievance Commission regarding his request. In the motion to extend time, Johnson provided no specific information concerning his "request" to the Attorney Grievance Commission.

         Bar Counsel did not object to the motion to extend time. On April 7, 2016, without ruling on the Motion for Order of Default, the hearing judge granted the motion to extend time and ordered Johnson to file an answer by April 18, 2016. Once again, Johnson failed to file an answer by that date. On April 18, 2016, Bar Counsel mailed to Johnson Interrogatories, a Request for Production of Documents, and a Request for Admission of Facts and Genuineness of Documents.

         On April 20, 2016, Johnson filed with the hearing judge a "Motion for Leave to Petition Court of Appeals for Remand" ("the motion for leave"). In the motion for leave, Johnson stated that the Attorney Grievance Commission had informed him that it no longer had jurisdiction over the attorney discipline proceeding, and that, as such, Johnson had to file any request for relief with the hearing judge or this Court. Johnson alleged that there had been "procedural deficiencies under M[aryland] Rule 16-700[, ]" and that the Rule "provides no instructions as to addressing alleged procedural deficiencies[.]" Johnson requested that the hearing judge grant him leave to file a "motion for relief" with the hearing judge or this Court. The basis on which Johnson sought to file a "motion for relief" is unclear because Johnson did not provide any information regarding the "alleged procedural deficiencies, " and because Maryland Rule 16-700 does not exist. In the motion for leave, Johnson did not address his failure to file an answer by the court-ordered deadline of April 18, 2016.

         On April 29, 2016, the hearing judge denied the motion for leave, and issued an order of default against Johnson for the failure to file an answer. The order of default included notice to the parties that a hearing on the Petition for Disciplinary or Remedial Action had been scheduled for June 6, 2016. On May 2, 2016, the order of default was entered. On May 3, 2016, the Office of the Clerk of the Circuit Court for Harford County mailed to Johnson a notice that advised that Johnson could move to vacate the order of default within thirty days of the date of entry of the order of default. The notice also advised that a motion to vacate must state the reasons for Johnson's failure to file an answer and the legal and factual bases for a defense against Bar Counsel's charges.

         The thirtieth day after the date of entry of the order of default was June 1, 2016. Accordingly, the deadline for a motion to vacate the order of default was June 1, 2016.

         On June 2, 2016, Johnson filed with the hearing judge an untimely "Motion to Vacate Default Order and Reconsideration of Leave to Petition Court of Appeals for Remand" ("the motion to vacate"). Much of the motion to vacate was identical to the motion for leave. For example, Johnson again alleged that there had been procedural defects under "M[aryland] Rule 16-700[, ]" and requested that the hearing judge vacate the order of default and permit him to file a "motion for relief[.]" In the motion to vacate, Johnson acknowledged that the hearing judge had ordered him to file an answer by April 18, 2016, but stated that he did not do so because filing an answer before the hearing judge ruled on the motion for leave would have "compromise[d] his . . . rights under" Maryland Rule 2-322. Maryland Rule 2-322(a) requires certain defenses to be asserted in a motion to dismiss before an answer is filed and states:

The following defenses shall be made by motion to dismiss filed before the answer, if an answer is required: (1) lack of jurisdiction over the person, (2) improper venue, (3) insufficiency of process, and (4) insufficiency of service of process. If not so made and the answer is filed, these defenses are waived.[2]

         In the motion to vacate, Johnson did not explain how Maryland Rule 2-322 applied to his anticipated "motion for relief."

         On June 6, 2016, the hearing judge conducted a hearing, at which the hearing judge gave the parties the opportunity to be heard regarding the motion to vacate, and denied the motion to vacate. During his argument regarding the motion to vacate, Bar Counsel advised the hearing judge that Johnson had failed to respond to Bar Counsel's April 18, 2016 discovery requests; before the hearing judge denied the motion to vacate, Johnson essentially acknowledged failing to respond to the discovery requests. Immediately after denying the motion to vacate, in response to Bar Counsel's offer, the hearing judge advised that Bar Counsel's filing would be accepted by the hearing judge to consider in rendering an opinion in the matter. Without objection, Bar Counsel offered, and the hearing judge admitted into evidence, a binder that included twenty-one documents. The hearing judge asked whether Bar Counsel had any additional evidence, and Bar Counsel responded in the negative. The hearing judge advised Johnson: "[Y]ou don't have the opportunity to present evidence, obviously, because we're in a default posture; however, I do want to give you the opportunity to present to the Court, with Bar Counsel being present here, any mitigation that you would like me to consider on your behalf." Johnson responded only that he had no prior attorney discipline.

         On August 3, 2016, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Johnson had violated MLRPC 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), 1.16(d), 8.1(b), 8.4(d), and 8.4(a), but had not violated MLRPC 1.5(b).

         On November 4, 2016, we heard oral argument. For the below reasons, we suspend Johnson from the practice of law in Maryland for one year.

         BACKGROUND

         The hearing judge found the following facts, which we summarize. On June 23, 1998, this Court admitted Johnson to the Bar of Maryland.

         Johnson's Representation of Venable

         On or about December 11, 2013, Venable retained Johnson to represent him in a child support case in the Circuit Court for Anne Arundel County. Venable paid Johnson $1, 250 to appear at a merits hearing that was scheduled for December 16, 2013. On that date, Johnson appeared before a magistrate of the circuit court. In open court, Johnson stated that he would file his appearance with the circuit court's Civil Department. Johnson never filed his appearance or paid the appearance fee.

         On December 16, 2013, the magistrate issued a Report and Recommendations.[3]Afterward, Venable asked Johnson to file exceptions to the magistrate's Report and Recommendations. Johnson agreed to do so for an additional fee of $775. Later, Johnson asked Venable for $1, 500, which was a combination of the $775 fee for the exceptions and a $725 initial deposit for the child custody case. Johnson told Venable that he could pay in installments. Venable paid Johnson the $775 fee for the exceptions as follows: $375 on December 26, 2013; $150 on January 5, 2014; $125 on January 17, 2014; and $125 on January 31, 2014. Venable did not make any additional payments to Johnson.

         The exceptions were due on December 26, 2013-ten days after the magistrate issued the Report and Recommendations. Johnson failed to timely file the exceptions; instead, he mailed the exceptions to the circuit court on or after December 26, 2013.[4] On January 2, 2014, the circuit court received the exceptions. On January 6, 2014, the circuit court issued an order closing the child support case.[5] On or about January 10, 2014, the circuit court's Civil Department returned the exceptions to Johnson with a notice that the exceptions were being returned because the appearance fee had not been paid, and because the circuit court had issued an order closing the child support case.

         Johnson failed to make any attempt to rectify the consequences of his failure to pay the appearance fee. Johnson did not refund to Venable the $775 fee for the exceptions, despite the exceptions having been returned. Johnson failed to notify Venable that he had not paid the appearance fee, that he had submitted the exceptions on or after the due date, and that the circuit court's Civil Department had returned the exceptions.

         Between February 3 and February 18, 2014, on multiple occasions, Venable text messaged Johnson to ask about the status of the exceptions. Johnson failed to respond to Johnson's text messages. On February 18, 2014, Venable e-mailed Johnson, again asking about the status of the exceptions, and stating that he had learned from both the circuit court and the Maryland Judiciary Case Search that the child support case was closed.

         On February 20, 2014, Johnson e-mailed Venable, stating that he had attached "the filings on your behalf" and that he was "awaiting a Judge's response to our motion for reconsideration." Johnson attached to the e-mail an unsigned "Order" for the exceptions, and an unsigned "Petition to Modify Custody & Visitation and Request for Hearing and other Relief" that was dated January 27, 2014. Contrary to Johnson's claim in his e-mail to Venable, Johnson had never filed a motion for reconsideration in the child support case.[6]

         Bar Counsel's Investigation

         On March 14, 2014, Venable filed a complaint against Johnson with Bar Counsel. In a letter dated April 2, 2014, Bar Counsel notified Johnson of Venable's complaint, and requested a response within fifteen days. Johnson failed to respond.

         In a letter dated April 28, 2014, Bar Counsel requested a response within ten days. In a letter dated May 9, 2014, Johnson requested a "one-time extension" until May 23, 2014 to respond to Venable's complaint. On May 19, 2014, Bar Counsel granted Johnson's request for an extension. On May 23, 2014, Johnson sent a response to Venable's complaint. In his response, Johnson alleged that he had filed his appearance on December 16, 2013. Johnson's allegation was inconsistent with both information that Venable had provided and a docket entry in the child support case dated December 16, 2013, stating that Johnson was "to file" his appearance.

         In a letter dated July 15, 2014, Bar Counsel requested documents and additional information from Johnson within ten days. Specifically, Bar Counsel requested copies of: Johnson's alleged filing of appearance; the exceptions to the magistrate's Report and Recommendations; all retainer agreements and correspondence between Johnson and Venable regarding the child custody case; documents that showed an accounting of Venable's payments; and documents that showed distributions from Johnson's attorney trust account. Bar Counsel also asked Johnson to explain why he mailed the exceptions on or after December 26, 2013, when he had only until December 26, 2013, to file the exceptions.

         Johnson failed to respond to Bar Counsel's request. In a letter dated July 31, 2014, Bar Counsel again requested documents and additional information from Johnson, and informed him that MLRPC 8.1 (Disciplinary Matters) required him to comply. Again, Johnson failed to respond. In a letter dated August 8, 2014, Bar Counsel again requested documents and additional information from Johnson, reminded him of his obligation to comply under MLRPC 8.1, and asked him to respond by August 18, 2014.

         On August 25, 2014, Johnson and a Senior Assistant Bar Counsel spoke on the telephone. During that conversation, Johnson asked for an extension until September 8, 2014. Bar Counsel granted the extension. In a letter dated August 26, 2014, Bar Counsel confirmed that Johnson would provide the requested documents and additional information by September 8, 2014. Johnson failed to do so.

         In letters dated September 11, 2014 and September 30, 2014, Bar Counsel again requested documents and additional information. In the September 30, 2014 letter, Bar Counsel notified Johnson that Venable's complaint would be docketed and there would be an investigation as to whether Johnson had violated the MLRPC. Bar Counsel noted that Johnson had failed to respond to Bar Counsel's demands for information, and provided Johnson with one last chance to provide documents and additional information within fifteen days of the letter. Johnson never responded to Bar Counsel's September 11, 2014 and September 30, 2014 letters, and never responded to Bar Counsel's multiple requests for documents and additional information.

         Aggravating Factors and Mitigating Factors

         As to aggravating factors, without expressly labeling the circumstances as aggravating factors, the hearing judge noted that Johnson had committed multiple violations of the MLRPC. The hearing judge also found that Johnson had failed to deal with Bar Counsel in good faith, and instead had repeatedly refused to cooperate with Bar Counsel's lawful demands for information. Additionally, the hearing judge found that Johnson had failed to acknowledge his misconduct's wrongful nature, and had failed to rectify the consequences of his misconduct.

         The hearing judge found that the only mitigating factor was the absence of prior attorney discipline.

         STANDARD OF REVIEW

         In an attorney discipline proceeding, this Court reviews for clear error a hearing judge's findings of fact, and reviews without deference a hearing judge's conclusions of law. See Md. R. 19-741(b)(2)(B) ("The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses."); Attorney Grievance Comm'n v. Shuler, 443 Md. 494, 501, 117 A.3d 38, 43 (2015) ("[T]his Court reviews for clear error a hearing judge's findings of fact[.]" (Citations omitted)); Md. R. 19-741(b)(1) ("The Court of Appeals shall review de novo the [hearing] judge's conclusions of law."). This Court determines whether clear and convincing evidence establishes that a lawyer violated an MLRPC. See ...


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