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Attorney Grievance Commission of Maryland v. Moore

Court of Appeals of Maryland

January 20, 2017

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
RICHARD ALLEN MOORE, II

          Argued: October 11, 2016

         Circuit Court for Prince George's County Case No. CAE15-16176

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

          OPINION

          GREENE, J.

         Richard A. Moore, II ("Respondent"), was admitted to the Bar of this Court on June 28, 1990. Beginning in 1990, Respondent served as an Assistant State's Attorney in Prince George's County for approximately nineteen years. Respondent left the State's Attorney Office in 2009 and entered into private practice as a solo-practitioner. Respondent's practice consisted of criminal defense, personal injury matters, and family law matters. On March 18, 2013, Respondent was placed on exempt status[1] based on his appointment as an Administrative Law Judge.

         On May 7, 2015, the Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a)[2], filed a "Petition For Disciplinary Or Remedial Action" against Respondent. The Petition addresses allegations of misconduct from Respondent's representation of Cynthia Covington. Petitioner asserts that based upon clear and convincing evidence, Respondent violated Maryland Lawyers' Rules of Professional Conduct ("MLRPC" or "Rule") 1.1 (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), 1.4 (Communication), 1.16 (Declining or Terminating Representation), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct). This Court referred the matter to the Honorable John P. Davey of the Circuit Court for Prince George's County for a hearing to issue findings of fact and conclusions of law pursuant to Md. Rule 16-757.

         The hearing judge conducted an evidentiary hearing on April 15, 2016. Thereafter, the hearing judge issued Findings of Fact and Conclusions of Law, maintaining that the evidence was clear and convincing, that Respondent violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16 (a) and (d), 8.1(a) and (b), and 8.4(a), (c), and (d). Respondent filed exceptions to the hearing judge's findings of fact and conclusion of law. We conclude that the hearing judge's conclusions as to violations of Rules 1.1, 1.2(a), 1.3, 1.4(a) and (b), 1.16(a), and 8.4(a) and (d) were supported by clear and convincing evidence and overrule Respondent's exceptions. We hold, however, that the record lacks clear and convincing evidence to sustain Respondent's violations of Rules 8.1(a) and (b) and 8.4(c).

         FINDINGS OF FACT

         The hearing judge conducted an evidentiary hearing on April 15, 2016, after which he made the following factual findings:

On or about May 9, 2012, Ms. Covington was involved in a four car automobile accident. The fourth driver was insured by GEICO and accepted liability. In August 2012, Ms. Covington retained the Respondent to represent her pursuant to a Contingency Fee Retainer Agreement that was signed by Ms. Covington on August 25, 2012. Ms. Covington was referred to the Respondent by a close friend who recommended that she contact Respondent for representation.
It is undisputed that Ms. Covington received medical treatment at least through the month of August 2012. Based on advice from her doctor, Ms. Covington understood that she should not consider a settlement no [sic] sooner than 4 months after she completed her medical treatment.
On September 2, 2012, Ms. Covington advised the Respondent that a GEICO representative would like to speak with him about the claim, and Ms. Covington provided the name and contact information to the Respondent and authorized Respondent to settle her claim. On or about September 6, 2012, the Respondent stated, "After I speak with the GEICO representative, I will give you a call to discuss what she says." The Respondent did not speak with the GEICO representative or follow-up with Ms. Covington. On October 2, 2012, Ms. Covington emailed the Respondent and stated that she had received a call from the GEICO representative who advised her that she had been unable to contact the Respondent. Ms. Covington provided the Respondent with the contact information for the representative again and requested he contact GEICO "as soon as possible." On October 3, 2012, the Respondent replied that he would "look into it and take care of it." Also on October 3, 2012, GEICO wrote to the Respondent and asked him to send a letter of representation. The Respondent received the letter from GEICO[, ] however, he did not make any effort to contact them or send a letter of representation.
On October 31, 2012, having heard nothing from the Respondent, Ms. Covington emailed the Respondent and stated, "Checking in to see where we stand with the GEICO settlement. Thank you so much." The Respondent did not respond to Ms. Covington's email in any manner. On December 1, 2012, having heard nothing from the Respondent, Ms. Covington emailed him and stated, "Please let me know a convenient time to speak with you regarding my auto accident." The Respondent did not respond to Ms. Covington's email in any manner. On December 17, 2012, having heard nothing from the Respondent, Ms. Covington sent him another email stating, "I've sent you emails and left a message for you and I have not heard anything from you. Please advise me as to the status of my case." The Respondent did not respond to Ms. Covington's email in any manner. On January 13, 2013, having not received any response from the Respondent, Ms. Covington emailed him again and stated, "Please proceed in settling my claim with GEICO."
On January 14, 2013, Ms. Covington spoke with the Respondent during a brief phone call that lasted approximately 3 minutes. During the phone call, Ms. Covington restated that she wanted to settle her claim and authorized the Respondent to make a demand.
On February 19, 2013, the Respondent for the first time, sent a letter of representation to GEICO, stating, inter alia, "As of this date, my client has completed all treatment. Upon my receipt of my client's medical records, bills and reports, I will forward copies to you for your review along with an offer for settlement." The Respondent, despite being in possession of an Authorization to Release Medical Information signed by Ms. Covington, did not request any of Ms. Covington's medical records from the providers and did nothing to further settlement of Ms. Covington's claim.
After multiple interviews, in February 2013, the Respondent was notified that he would be appointed as an Administrative Law Judge. He was given four weeks to close his practice. Based upon discussions with W. Thomas Stovall, II, Esq., Respondent decided to inform all of his clients that he could provide a referral to another attorney for representation for any work remaining in their cases or they could retain new counsel of their own choosing. Respondent began his employment as an Administrative Law Judge on March 12, 2013, and on March 18, 2013, he was placed on exempt status by the Attorney/Client Trust Fund of the Bar of Maryland.
On April 10, 2013, Ms. Covington, having heard nothing from the Respondent, emailed him and stated, "Just checking in. How's the settlement process going?" The Respondent did not respond. On April 17, 2013, Ms. Covington sent an email to [the Respondent] advising that USAA, her carrier had agreed to accept a property damage settlement from GEICO. She further stated, "Where do we stand? How soon can we settle?" The Respondent did not respond. On April 30, 2013, having heard nothing from the Respondent, Ms. Covington emailed him and stated, "Just checking on the progress of the settlement. When do you expect to be able to close out?" The Respondent did not respond in any manner. On May 21, 2013, Ms. Covington emailed the Respondent and stated, "Please let me know where we stand on my settlement with GEICO. I have supplied you with all of the pertinent information requested. I would greatly appreciate a response to my email." The Respondent did not respond in any manner.
On or about May 31, 2013, Ms. Covington called the Respondent's virtual office[3] and left a voicemail message asking that Respondent return her phone call. [Respondent] had terminated all services with his virtual office and receptionist when he started as an Administrative Law Judge. Respondent asserts his virtual office and receptionist terminated at least 1 ½ months prior to Ms. Covington's telephone call; therefore, it is unclear as to when the message referred to was actually left. On May 31, 2013, the Respondent returned Ms. Covington's phone call and the two spoke for the first time since January 2013. The conversation lasted approximately 3 minutes. The Respondent advised Ms. Covington, for the first time, that he had accepted a position as an Administrative Law Judge. He told Ms. Covington that he would be closing his practice and that he was referring her case to another attorney, but he could not provide a name as the other attorney had not yet agreed to take her case. The Respondent assured Ms. Covington that the new attorney would be in touch with her within one week.
Ms. Covington never received any communication from the unnamed attorney that was to take over her case. Ms. Covington called the Respondent's cellular phone and left voice messages on July 1, 2013, July 15, 2013, July 29, 2013, August 7, 2013, August 9, 2013, August 12, 2013, August 14, 2013, and September 27, 2013. The Respondent did not return Ms. Covington's calls or respond to her voicemail messages in any manner.
On September 27, 2013, Ms. Covington emailed the Respondent and stated:
Mr. Moore,
When we last spoke at the end of May 2013, you advised me that you were closing your practice and that my case would be transferred to another personal injury attorney within 1 week. As of today, I have not received any correspondence from you or any other attorney. I have left you several voice mail messages that you have not responded to. At this point, I want to terminate our agreement as you have failed to represent me in this matter. Please contact me immediately to discuss and execute a termination of our agreement.
Sincerely,
Cynthia Covington
The Respondent failed to respond to Ms. Covington's September 27, 2013 email in any manner. On September 30, 2013, Ms. Covington called the Respondent's cellular phone and left a final voicemail message. The Respondent did not respond to Ms. Covington's voicemail message in any manner. The Respondent did not write to GEICO and advise them [sic] that he was no longer representing Ms. Covington, he did not provide Ms. Covington with a copy of her file and did not execute a termination of representation as requested. In 2015, the Respondent eventually provided a lien release to Ms. Covington.
On February 25, 2014, Ms. Covington filed a complaint with Bar Counsel. On March 19, 2104, Bar Counsel forwarded the complaint to the Respondent and requested a response within fifteen days. On April 15, 2014, with no response having been received, Bar Counsel wrote to the Respondent and requested a response. On April 21, 2014, the Respondent called Bar Counsel and received an extension through May 12, 2014. On May 12, 2014, the Respondent provided a written response to Bar Counsel stating in part, "Right around that time, Ms. Covington and I had a conversation about her case. When I reported to her that I had a new attorney lined up, Ms. Covington left me with the impression that she wanted to secure the services of her own attorney to take over the case."
By letter dated June 2, 2014, Bar Counsel requested the Respondent provide, inter alia, a complete copy of Ms. Covington's file, the date he closed his practice, the name of the attorney that was to take over Ms. Covington's matter and a complete description of all actions taken following September 27, 2013 to comply with Rule 1.16(d) of the Maryland Lawyer's Rules of Professional Conduct. The information and documentation was to be provided no later than June 20, 2014. The Respondent retained Counsel, and on July 1, 2014 provided his written response, which failed to address the attorney that was to take over Ms. Covington's matter. On July 10, 2014, the Respondent delivered a copy of Ms. Covington's file to Bar Counsel.
On July 25, 2014, Bar Counsel again requested the name of the attorney that the Respondent had "lined up" to take over Ms. Covington's matter. The information was to be provided by August 8, 2014. The Respondent did not respond, and on August 12, 2014, Bar Counsel again requested the name of the attorney. By email later that day, the Respondent, through counsel, provided the name of Allan W. Steinhorn, Esq., as the attorney with whom he spoke about taking over his practice.
The undisputed evidence presented at trial is that Ms. Covington called the Respondent nine times between July 1, 2013 and September 30, 2013. Furthermore, the undisputed evidence is that on each of the nine occasions, Ms. Covington left a voicemail message for Respondent. The Court rejects the Respondent's explanation and finds that Respondent knowingly, and intentionally misrepresented to Bar Counsel that he had not heard from Ms. Covington and that he was "waiting" for Ms. Covington to contact him. During a deposition on November 25, 2015, Respondent testified that he told Ms. Covington that he accepted a position as an Administrative Law Judge "right around late February or early March." The Court found that the Respondent [sic] testimony was knowingly and intentionally false.

         CONCLUSIONS OF LAW

         Based on evidence presented at the evidentiary hearing, the hearing judge made the following conclusions of law:

Maryland Rules of Professional Conduct 1.1 - Competence
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
This [c]ourt finds the Respondent in violation of Rule 1.1 for the reasons stated in the discussions of violations of Rules 1.2, 1.3, and 1.4. Maryland Rules of Professional Conduct 1.2 - Rule 1.2 Scope of Representation and Allocation of Authority Between Client and Lawyer Rule 1.2(a) provides:
Subject to paragraphs (c) and (d), a lawyer shall abide by a client's decisions concerning the objectives of the representation and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer may take such action on behalf of the client as is impliedly authorized to carry out the representation. A lawyer shall abide by a client's decision whether to settle a matter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
In September 2012, approximately one month after retaining the Respondent, Ms. Covington authorized the Respondent to make a settlement demand on GEICO. Ms. Covington repeated that directive in January 2013 and March 2013. The undisputed evidence is clear that the Respondent did not send a letter of representation to GEICO until February 2013 and, at no time did he make any settlement demand. Accordingly, this [c]ourt finds the Respondent violated Rule 1.2(a).
Maryland Rules of Professional Conduct 1.3 - Diligence
A lawyer shall act with reasonable diligence and promptness in representing a client.
The Respondent did virtually no work on Ms. Covington's matter. The Respondent, as discussed in reference to Rule 1.2, failed to follow Ms. Covington's directive as to settlement. The Respondent, as discussed in reference to Rule 1.4, failed to adequately communicate with Ms. Covington. The Respondent failed to timely send a letter of representation to GEICO, failed to request any relevant evidence from third parties to support Ms. Covington's claim, and failed to make any settlement demand. Accordingly, this [c]ourt finds the Respondent violated Rule 1.3.
Maryland Rules of Professional Conduct 1.4 - Communication
(a) A lawyer shall:
(1)promptly inform the client of any decision or circumstance with respect to which the client's informed consent, as defined in Rule 1.0(f), is ...

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