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Attorney Grievance Commission of Maryland v. Smith

Court of Appeals of Maryland

January 19, 2018


          Argued: October 10, 2017

         Circuit Court for Baltimore City Case Nos. 24-C-16-004993, 24-C-17-000053

          Barbera, C.J., Greene, McDonald, Hotten, Getty, Battaglia, Lynne A. (Senior Judge, specially assigned), McAuliffe, John F. (Senior Judge, specially assigned), JJ.


          GREENE, J.

         On August 8, 2016, the Attorney Grievance Commission of Maryland ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 19-721, filed a "Petition for Disciplinary or Remedial Action" against Edward Smith, Jr. ("Respondent"). On December 17, 2016, Petitioner filed a second "Petition for Disciplinary or Remedial Action" against Respondent. These petitions, arising out of Respondent's representation of three individuals in separate post-conviction proceedings, alleged that Respondent violated various Maryland Attorney's Rules of Professional Conduct ("MARPC" or "Rule"), [1] specifically 19-301.1 (Competence), [2] 19-301.2 (Scope of Representation and Allocation of Authority Between Client and Attorney), [3] 19-301.3 (Diligence), [4] 19-301.4 (Communication), [5] 19-301.5 (Fees), [6] 19-301.15 (Safekeeping Property), [7] 19-301.16 (Declining or Terminating Representation), [8] 19-305.3 (Responsibilities Regarding Non-Attorney Assistants), [9] 19-308.1 (Bar Admission and Disciplinary Matters), [10] 19-308.4 (Misconduct), [11] 19-404 (Trust Account - Required Deposits), [12] 19-407 (Attorney Trust Account Record-Keeping), [13] 19-408 (Commingling of Funds)[14] and 19-410 (Prohibited Transactions).[15] On January 4, 2017, upon Petitioner's motion, this Court issued an order consolidating the petitions.

         This Court referred the matter to the Honorable Yvette M. Bryant of the Circuit Court for Baltimore City for a hearing and to render findings of fact and conclusions of law pursuant to Rule 19-727. Judge Bryant conducted an evidentiary hearing on April 25, April 26, May 1, and May 2, 2017. Thereafter, Judge Bryant issued Findings of Fact and Conclusions of Law, in which she found, by clear and convincing evidence, that Respondent's acts constituted violations of Rules 19-301.1, 19-301.2, 19-301.3, 19-301.5(a), 19-301.15(a), (c), (d), and (e), 19-301.16(d), 19-305.3(a) and (b), 19-308.1(a), (b), 19-308.4(a), (b), (c) and (d), 19-404, 19-407(a)(2)(A), (a)(2)(B), (a)(3)(A), (a)(3)(b), and b), 19-408, and 19-410(c). For the reasons explained herein, we conclude that the hearing judge's conclusions of law as to violations of the aforementioned Rules were supported by clear and convincing evidence.


         The hearing judge conducted an evidentiary hearing that lasted four days, after which she made the following findings of fact. Respondent was admitted to practice law in Maryland on December 19, 1975, and has "extensive experience in handling criminal matters, including post-conviction proceedings." Respondent maintained a law practice in Baltimore City, and relied on the assistance of Mr. Calvin Robinson-Bey, whom Respondent had successfully represented in a post-conviction matter. Upon Mr. Robinson-Bey's release, Respondent hired him to assist in drafting post-conviction petitions.

         Respondent's representation of Mr. DaJuan Marshall involved the drafting of a post-conviction petition. The hearing judge found that there was a dispute regarding when Respondent's representation of Mr. Marshall actually began:

In 2011, DaJuan Marshall ("Marshall") received a sentence of life plus 20 years. He appealed his conviction, which was upheld by the Court of Special Appeals and which culminated on December 23, 2013, when the Court of Appeals denied his Petition for Writ of Certiorari.
In Spring 2014, Marshall's mother, Ms. Tinnie Monroe ("Ms. Monroe") and his stepfather ("Mr. Monroe") consulted with Respondent with a view to instituting post-conviction proceedings. When he initially discussed the matter with the Monroes, Respondent agreed to review the trial transcript, have his "associate" review the transcript, and get in touch with the Monroes. Respondent also advised the Monroes he would charge a "flat fee" of $7, 500 for the representation.
Although there exists no documentation that allows the court to determine the date Respondent definitively agreed to pursue post-conviction proceedings on Marshall's behalf, the record reflects Marshall wrote to Respondent on April 14, 2014, to address some of the issues he found relevant to his proceedings. On May 1, 2014, Respondent wrote Marshall to discuss the matter, although he had not yet reviewed the transcript. . . .

         During Respondent's representation of Mr. Marshall, the hearing judge found that Respondent failed to communicate with Mr. Marshall in a meaningful way:

Other than the one letter written to Marshall in May 2014, Respondent produced no other written communication he initiated to Marshall and did not testify to having sent additional writings to Marshall. Respondent never met with Marshall in person. Between July 2014 and December 20, 2014, when Marshall terminated the attorney-client relationship, Marshall and the Monroes primarily communicated with Mr. Robinson-Bey. . . .
Respondent did not communicate with Marshall in a manner that would allow him to hear Marshall's voice, counsel Marshall regarding the arguments to be made based upon the contents of the transcript once Respondent had an opportunity to review it or counsel Marshall as to the need to preserve his federal rights through a timely filing of the post-conviction petition. Indeed, the most communication Respondent had with Marshall was after Marshall expressed displeasure with the product, days before the petition needed to be filed in order to preserve Marshall's federal habeas corpus rights.
When Marshall discussed his displeasure with the petition Mr. Robinson-Bey prepared, Respondent acknowledged to Marshall that he had not read the petition, but urged Marshall to allow him to file the petition as drafted and amend the petition at a later date. Again, Respondent did not take steps during the conversation to assure Marshall that he would ensure the proposed petition was reworked in time to file a product that would allow for preservation of the federal rights. As a result of the petition not having been filed, Marshall lost his opportunity to seek federal habeas corpus relief, a loss Respondent contends was the result of Marshall having listened to fellow inmates rather than his counsel. Respondent, who recalls only having one conversation with Marshall during the entire representation, is not the least bit contrite about the situation in which Marshall found himself. He attributes the problem singly to Marshall listening to "jailhouse lawyers." []
Respondent's file contains no memoranda or other documentation that would shed light on the dates of any discussions he personally had with Marshall concerning the post-conviction proceedings. The evidence shows Ms. Monroe, Mr. Monroe and Marshall's conversations were held primarily with Mr. Robinson-Bey throughout the course of representation; however, the court does not find Mr. Robinson-Bey or Respondent represented to Ms. Monroe or Marshall that Mr. Robinson-Bey was, in fact, an attorney. Neither does the court find Respondent permitted Mr. Robinson-Bey to hold himself out as an attorney. The court does find that the lack of communication and direct involvement in handling that post-conviction matter is one explanation for Respondent's inability to recall facts and details and to answer fact-specific questions concerning his representation.

         Respondent's limited work on Mr. Marshall's case, according to the hearing judge, led to Mr. Marshall's dissatisfaction with Respondent's representation but did not cause Mr. Marshall's failure to preserve his federal habeas corpus rights:

Upon receiving the transcript, but having received no retainer, Respondent read the transcript, discussed the matter with Mr. Robinson-Bey and assigned to Mr. Robinson-Bey the task of drafting the post-conviction petition.
The court finds that contrary to his earlier representations to Bar Counsel, Respondent did not personally prepare the petition or revise the petition . . . . After directing Mr. Robinson-Bey to draft the petition, Respondent did not supervise Mr. Robinson-Bey's performance in preparing the petition, and, by Respondent's own admission, did not read the post-conviction petition prior to submitting the petition to Marshall for his review in December 2014.
To preserve Marshall's federal habeas corpus rights, post-conviction proceedings needed to be instituted within one year of the December 23, 2013 denial of Marshall's petition for writ of certiorari. 28 U.S.C. § 2244 (d)(1)(A). The court does not find Respondent's actions caused Marshall to refuse to file the petition in order to preserve his federal rights. That was a choice Marshall made, as he certainly could have filed the petition and later filed an amendment. However, the court does find Respondent essentially delegated the entire matter to Mr. Robinson-Bey, could not intelligently respond to Marshall's concerns because he had not ridden herd over the matter and caused Marshall to lose faith in Respondent's ability to properly handle the matter.
The court does not find Respondent delayed providing services to Marshall. The retainer was not paid until late November, weeks before the date the petition needed to be filed to preserve Marshall's federal rights. However, the court finds Respondent's failure to review the post-conviction petition after it was prepared by Mr. Robinson-Bey (whenever that was) and his failure to meaningfully discuss the filing with Marshall until the eleventh hour placed Marshall in the unenviable position of having to make a choice to file the petition "as is" (with which Marshall was not comfortable) and trusting an amendment would suffice or to not file at all. In response to Marshall's concerns, Respondent certainly did not suggest to Marshall that he would personally amend the petition and have it filed no later than December 23, 2014. Moreover, although Marshall outlined his concerns to Respondent in writing, Respondent did not respond to those concerns verbally or in writing.

         With regard to Respondent's fee arrangement and handling of Mr. Marshall's funds, the hearing judge found that Respondent did not maintain documentation of the deposit of funds for Mr. Marshall's matter:

Respondent, having quoted to the Monroes a flat fee of $7, 500 for providing representation to Marshall . . . received a check in the amount of $5, 000 on November 26, 2014. . . . The agreement executed on December 5, 2014, stated Respondent would not start working on the case until the retainer was paid in full, although Respondent directed Robinson-Bey to begin working on the matter at least as early as Summer 2014.
Respondent deposited the check into his required trust account on December 1, 2014; however, he withdrew funds in an amount equivalent to the retainer amount by month's end (Petitioner's Exhibit 25). Respondent neither created nor maintained documentation of the receipt of the funds from Ms. Monroe for Marshall's benefit beyond filling out a deposit slip. Petitioner produced no client card, computerized printouts or other documents to show he maintained a client ledger for Marshall's matter and produced no documentation to demonstrate when and under what circumstances the funds Respondent received from Ms. Monroe were distributed.

         The hearing judge found that upon Mr. Marshall terminating Respondent's services, Respondent misrepresented the status of funds remaining in trust from Mr. Marshall's retainer:

On December 22, 2014, Respondent's services were terminated. Marshall, through Ms. Monroe, requested a refund of funds paid (Petitioner's Exhibit 5a). Respondent did not respond to Ms. Monroe's March 13, 2017 letter requesting a refund. Having received a copy of Marshall's complaint and a request for information from Bar Counsel (Petitioner's Exhibit 2), on April 23, 2015, Respondent, while failing to provide complete financial records, intentionally misrepresented to Bar Counsel that Ms. Monroe's funds remained in his account (Petitioner's Exhibit 3). He also represented that the final bill would exceed the $5, 000 "charged" but that he would keep a balance on his account upon making an accounting.
In his June 3, 2015 letter to Ms. Monroe, Respondent deceptively stated that he [] held $1, 000 in "escrow" in the event of a bill dispute. Knowing he had long ago removed the Marshall funds from the trust account, Respondent deceptively stated he would "now" remove $4, 000 from the "escrow deposit" that was made on December 1, 2014. Analysis of Respondent's trust account shows at most, Respondent would have retained no more than $1, 700 of Ms. Monroe's funds when he wrote to Ms. Monroe on June 3, 2015; thus, there was no "$4, 000" to "remove" from escrow.

         According to the hearing judge's factual findings, Respondent made misrepresentations to his client as well as Bar Counsel about the extent of work performed on the matter:

While Respondent sought to beguile Ms. Monroe, Bar Counsel was in the midst of an investigation. On June 1, 2015, Bar Counsel sent to Respondent a letter from Marshall and asked for a reply no later than July 16, 2015 (Petitioner's Exhibit 8). Respondent did not reply until July 31, 2015, at which time he represented there existed two drafts of the post-conviction petition. The evidence establishes Mr. Robinson-Bey represented to Marshall that he drafted a version of the post-conviction petition during the summer, but that it had been mistakenly deleted from the computer. To the extent two drafts were completed, the evidence shows the only change made to the initial draft was Marshall's address, as the first version sent to Marshall was misdirected to the wrong facility. Respondent's representation that Mr. Robinson-Bey sent a petition for review, corrected the original petition in accordance with Marshall's review, and sent a second copy to Marshall is pure fabrication (Petitioner's Exhibits 3 and 77).
Respondent also represented to Bar Counsel that Mr. Robinson-Bey spent 205 hours working on Marshall's case. The court finds that Respondent misrepresented the time spent in working on Marshall's file, both as to Respondent's time and to Mr. Robinson-Bey's time. The document was not prepared contemporaneously with work allegedly done, although Mr. Robinson-Bey claims he kept a calendar that held the hours he worked on the project. However, Robinson-Bey's statement in his April 17, 2015 memorandum wherein he alleges he worked on the case until early January convinces the court it is a fabrication, as representation was terminated in December 2014.
On June 3, 2015, after the complaint was filed against him, Respondent wrote and provided an invoice to Ms. Monroe (Petitioner's Exhibit 17). The invoice purported to summarize his time and that of Mr. Robinson-Bey in working on the matter and suggested Respondent was owed $6, 855 based upon the amount of time spent on preparing the post-conviction petition. The court does not find credible the billing statement. Neither does the court find credible the calendars submitted to the court purporting to outline the time Robinson-Bey spent working on Marshall's post-conviction matter. Indeed, if the court were to believe what Mr. Robinson-Bey submitted, the court would have to accept as true that Robinson-Bey continued to work on the draft well after Marshall terminated Respondent's services, in fact, until January 10, 2015.
Mr. Robinson-Bey testified at the time of the trial. His testimony conflicted with Respondent's testimony regarding Respondent's level of involvement. Whereas Respondent testified he did not read the draft Robinson-Bey submitted to Marshall, Mr. Robinson-Bey testified Respondent saw the draft. The court does not find credible Mr. Robinson-Bey's testimony regarding Respondent's level of involvement in preparing the petition.
Bar Counsel's letter of August 18, 2015, (Petitioner's Exhibit 10) directing Respondent to provide additional information no later than September 2, 2015, was met with a late request for and grant of an extension of time (Petitioner's Exhibit 11). Respondent did not respond in the time allotted for the extension. When he responded, he did not address the inquiries outlined by Bar Counsel (Petitioner's Exhibit 13) and was again asked to address the specific inquiries no later than August 18, 2015 (Petitioner's Exhibit 13). Respondent replied on September 25, 2015. In the reply, he represented that he reviewed Robinson-Bey's drafts, contrary to testimony Respondent gave at trial (Petitioner's Exhibit 14).[16] Additional correspondence from Bar Counsel yielded no substantive response to Bar Counsel's original August 18, 2015 letter as Respondent simply did not address each of the specific inquiries (Petitioner's Exhibit 14 and 15).

         The hearing judge made the following factual findings regarding Respondent's maintenance of his trust account, in light of his handling of Mr. Marshall's funds:

On October 19, 2015, having still received less than a satisfactory response, Bar Counsel again wrote Respondent, who again represented he was holding Ms. Monroe's funds in trust (Petitioner's Exhibits 18 and 19). The evidence, however, shows Respondent's trust account went into overdraft status on June 22, 2015; thus, Ms. Monroe's funds were not being held in trust as represented (Petitioner's Exhibits 19, 26 and 27). Respondent continued to misrepresent he was holding Ms. Monroe's funds when he drafted and sent his letter dated October 27, 2015 (Petitioner's Exhibit 24).
At no time did Respondent ever supply to counsel information or documentation to support his receipt, maintenance or disbursement of Ms. Monroe's funds. Indeed, only on one occasion did he supply any financial documents, and then, he supplied documents he surmised would hide the fact that he was not, in fact, holding Ms. Monroe's funds in trust (Petitioner's Exhibit 3). Bar Counsel ultimately issued a subpoena for Respondent's trust account records. Analysis of the records shows, clearly and convincingly, that Respondent was not holding Ms. Monroe's money in trust as and when represented.
Analysis also reveals Respondent deposited money from unspecified and unverifiable sources into the trust account, commingled personal funds, used the account for matters other than client matters, and allowed the account to fall into a negative balance. This court is not prepared to state Respondent "misappropriated funds to his own use, " altogether it appears he borrowed from Peter to satisfy Paul and, to that extent, misappropriated various clients' funds (Petitioner's Exhibits 26 and 27).

          The evidence shows Respondent caused and/or allowed the following transactions from his trust account:

1.The creation of a negative balance in the amount of $372.90 caused by Respondent writing a check to himself on June 19, 2015 in the amount of $1, 200;
2.A February 18, 2015 deposit of funds that appears tied to no client's matter, that cannot be documented as pertaining to any client's matter and that appears related to a copy machine; and
3. Non-client-related disbursements for tithes (January 5, 2015), copy machine expenses (January 22, 2015, February 18, 2015, April 10, 2015 and September 4, 2015), legal printing (February 20, 2015), and property taxes (March 25, 2015).
Respondent's mismanagement of the trust account led to the creation of negative balances with respect to five clients' "ledgers." Respondent's apparent mismanagement of the account also led Bar Counsel, on November 19, 2015 to make further inquiry concerning the trust account (Petitioner's Exhibit 28). Despite requests for an extension and promises of a reply, Respondent provided no additional information related to the trust accounts (Petitioner's Exhibits 29 and 30). Respondent did not refund any of Ms. Monroe's funds.

         Bar Counsel's allegations of Respondent's misconduct also related to his representation of Ms. Mashea Simmons, who was interested in post-conviction relief:

In April 2015, Respondent met with Lillian Ray ("Ray"), the Mother of Mashea Simmons. Ray was interested in having Respondent represent Ms. Simmons in post-conviction proceedings, Ms. Simmons having been convicted of murder in 2012 and having received a life sentence. Respondent quoted Ray a flat fee of $7, 500 for the representation. Ray signed an updated retainer agreement that has a suggestion of having been prepared in March but that was mailed to Ray on April 17, 2015 (Petitioner's Exhibit 74). Ray paid the full fee on April 23, 2015 (Petitioner's Exhibit 67 and Exhibit 74-billing statement). Respondent acknowledges he did not deposit any of Ray's funds into his trust account; rather, he placed the funds in his operating account.
At the time Ray initially consulted with Respondent, Ms. Simmons was matriculating through the appellate process. In fact, on April 17, 2015, just days before the retainer was paid, the Court of Appeals granted Simmons' Petition for Writ of Certiorari (Petitioner's Exhibit 77, p. 16, which in turn relates to Petitioner's Complaint, paragraph 6). On April 23, 2015, Simmons' public defender (Mr. Braudes) notified her that the court granted her petition. Simmons, in turn, sent a copy of the letter to Respondent. On April 27, 2015, Respondent met with Simmons to discuss this matter, including whether to file the petition immediately or whether to await the results of her appeal.
On May 18, 2015, Respondent wrote to Simmons advising he completed the post-conviction petition (Petitioner's Exhibit 74). He also advised that he would await the ruling on the writ before filing the petition for post-conviction relief. By letter dated June 24, 2015 directed to Mr. Braudes, Respondent also represented that he completed the draft of the post-conviction petition (Petitioner's Exhibit 74). On August 13, 2015, Respondent again wrote to Simmons advising he had completed the post-conviction petition (Petitioner's Exhibit 74). Petitioner acknowledged at trial that he had not completed the petition when he made the representation to Simmons in May 2015, when he made the representation to Mr. Braudes in June 2015, or when he made the representation to Simmons in August 2015.
Clearly Respondent did some work on the file. He met with Simmons in person to discuss the case, contacted her public defender, received and sent out correspondence and reviewed her writ petition. He also prepared a post-conviction pleading. However, the pleading, in the context of the pending appeal and a stay of post-conviction proceedings was of no value, given that Simmons' original conviction was vacated. That the decision to prepare a post-conviction was a sham is further evidenced by Respondent's earlier representations to both Simmons and Mr. Braudes that he would file the petition after the appeal process was completed. Respondent's post-trial suggestion that the post-conviction petition continues to have value is meritless. The old "grounds" for the post-conviction pleading do not automatically cover Simmons' new plea. However, the court finds Respondent drafted the petition to justify having placed the legal fees in his operating account at the outset, and to justify keeping the entire retainer. Although Respondent contends it was Simmons who insisted he move forward and file so that the post-conviction would be ready to go, the court simply does not find credible that explanation.
The court finds the petition was not drafted prior to the time Ray requested a refund, although Respondent lied to his client and to the Public Defender when he represented it had been drafted. The court further finds Respondent rushed to prepare the petition to justify "keeping" all of Ray's funds. Likewise, this court notes Respondent's agreement to represent Simmons at the parole hearing (which he was not permitted to do) and to represent Simmons in her new trial are services not contemplated in the retainer agreement. To the extent Respondent claims there was value in the communications he had with Simmons and the Parole Commission's representative concerning the parole hearing, this court notes a fair amount of Respondent's effort had nothing to do with the post-conviction proceeding.

         The hearing judge found that Respondent made several misrepresentations to Ms. Simmons and Ms. Ray, and later to Bar Counsel, after Ms. Simmons terminated her representation with Respondent:

Although the date is unclear, at some point prior to August 20, 2015, Ray requested a refund of the fees paid. Respondent sent a text message to Ray advising he would prepare the bill and issue a refund of all unearned fees from "escrow" (Petitioner's Exhibit 67). On August 25, 2015, Respondent wrote to Simmons to advise her of Ray's request for a refund, to advise that Simmons was in fact the client, and to advise that he would need to charge for his time if representation was terminated (Petitioner's Exhibit 74, letter from Smith to Simmons dated August 25, 2015). The evidence shows that despite his representation to Ray, Respondent never placed Ray's funds in his trust account and, therefore, none of her funds were in the trust account waiting to be disbursed.
His letter to Simmons dated August 25, 2015 also shows Respondent had no intention of forwarding the check he referenced in his August 20, 2015 text to Ms. Ray (Petitioner's Exhibit 67). He never prepared a statement of account for Ray as promised. Indeed, the fee dispute between Ray and Respondent was settled through litigation. That Ray was required to engage in litigation confirms for this court Respondent intended to keep every dime of the fees he deposited into his operating account prior to earning any of the fees.
Ms. Simmons requested that Respondent terminate his representation in December 2015. Rather than move to strike his appearance, by letter dated December 5, 2015, Respondent suggested he remained responsible for the case until relieved by the judge of his responsibility. Respondent made no attempt to explain to Simmons his obligation to strike his appearance and did not follow her instructions to do so (Petitioner's Exhibit 74). Rather, while retaining all of her legal fees, he simply instructed her to have new counsel enter an appearance.
In addressing Ray's request for a refund, Respondent prepared an "invoice" through which he claimed his fees totaled $14, 350. The court does not find Respondent's statement of account credible as there is no indication Respondent prepared it contemporaneously with the work he allegedly performed. Given the pending appeal, and given his repeated promises that he would not file for post-conviction relief until the appeal was resolved, such a suggestion is nothing more than proof of an unreasonable fee, particularly where Respondent represented at the outset that the case could (and would) be completed for a flat fee of $7, 500.
Upon receiving Ray's complaint, in February 2016, Bar Counsel sought information from Respondent. Respondent did not reply to Bar Counsel's inquiry until April 8, 2016 (Petitioner's Exhibit 68 and 71). Respondent's reply referenced billing his time at $450 per hour, a rate that was not only not contemplated but that was expressly excluded from the retainer agreement; thus, it is a misrepresentation of the fee arrangement. Likewise, Respondent misrepresented that he sent all work and billing to the client.

         The hearing judge found that Respondent's fees in the Simmons matter were "incredible":

It may be that at an hourly rate of $450 (which some people practicing 40 years can command), given the hours he spent visiting Simmons, reading the transcript and drafting the petition, Respondent's services could have been worth more than $7, 500; however, the court finds the Statement of Account incredible. For the court to believe in its veracity, the court would have to believe, among other facts, that Respondent billed his and Mr. Robinson-Bey's time at the same rate, as there is no distinction in the Statement of Account found in Exhibit 74 between their rates.

         The hearing judge found that during Bar Counsel's investigation of the Simmons matter, Respondent was evasive with respect to the financial and/or billing statements in that matter:

Bar Counsel requested further information on April 21, 2016 (Petitioner's Exhibit 72). By letter dated June 10, 2016, Respondent provided a copy of the client file but did not respond to Bar Counsel's request for information pertaining to finances or provide authentic documentation of the dates and times on which he provided services (Petitioner's Exhibit 74). Respondent did not reimburse any of the fees he received to represent Simmons in the post-conviction matter.

         Finally, Bar Counsel alleged that Respondent's conduct violated the Maryland Attorneys' Rules of Professional Conduct during his representation of Mr. Kintrell McEachern, who hired Respondent for assistance with both federal and state court matters. The hearing judge made the following factual findings regarding Respondent's representation of Mr. McEachern:

In 2013, Kintrell McEachern ("McEachern") received a lengthy sentence in Federal Court that he wished to have reduced by collaterally attacking his state court convictions. Through his wife Ronica McEachern, who held a power of attorney to act in his stead (Petitioner's Exhibit 40), McEachern sought out Respondent to file various petitions for coram nobis relief in the Baltimore City Circuit Court, to represent him in a case that stemmed from a traffic matter and that allegedly needed to be addressed by Judge Stewart, and in a federal matter. For the coram nobis matters, Respondent charged a flat fee of $2, 500. Respondent prepared no retainer agreement for the coram nobis matters (Petitioner's Exhibit 53). Mrs. McEachern paid Respondent $2, 500 for the coram nobis proceedings on July 22, 2013. (Respondent's Exhibit 33). Respondent did not deposit the funds into his trust account. Neither did Respondent secure either McEachern's or his wife's consent to forego placing the funds in a trust account.
On June 6, 2014, Respondent entered his appearance in the matter (Petitioner's Exhibit 63). There also appears to have been a pro se habeas corpus matter pending before Judge White which was denied without a hearing. Respondent filed a request for a hearing on the petition McEachern had already filed (Petitioner's Exhibit 63). Respondent took no further action in the matter as the hearing request was not granted. Respondent appeared to believe the Stewart matter was addressed by Judge Tanner; however, Judge Tanner does not make mention of the traffic matter in her ruling and there is no mention of that in the hearing transcript (State's Exhibit 64) or in Judge Tanner's coram nobis ruling.
Respondent filed for coram nobis relief, although there was some confusion involved in the case numbers Respondent used in the pleadings. Ultimately, while the errors appear to have caused McEachern and his wife concern, there is no indication the clerical error affected the outcome of the coram nobis cases or resulted in the court not considering each coram nobis request.
Problems arose with respect to the coram nobis cases when the hearing judge failed to promptly issue her ruling, a ruling McEachern was obviously anxious to receive. Respondent wrote to the judge, called the judge's chambers and filed a motion to seek a ruling, all to no avail. Contrary to McEachern's desire, Respondent did not think it wise to pursue mandamus relief (which Respondent prepared for McEachern free of charge but would not file on his behalf) or disciplinary proceedings against the hearing judge and made his position clear in that regard. Respondent's refusal to take those steps caused a break-down in the attorney-client relationship and ultimately led McEachern to terminate Respondent's services, although text messages appear to suggest some back-and-forth on McEachern's desire to have Respondent terminate his services for each of the cases.
The relationship between Respondent and McEachern soured in Spring 2015 for, as was noted above, Respondent did not agree to apply the tactics McEachern wanted used to propel the hearing judge forward. Ultimately, communications between Mrs. McEachern and Respondent led Respondent to limit communication to written communication, as Respondent felt "harassed" and felt that any actions taken by McEachern against the hearing judge would be attributed to Respondent (Petitioner's Exhibit 36, letter from Respondent to Mrs. McEachern). An additional source of irritation among the parties was the fact that Respondent did not provide certain requested federal documents to his wife upon her request, as the documents were sealed.
Although he could not release the sealed documents, Respondent created an expectation that he would supply certain documents after obtaining them through "Pacer, " as is reflected in text messages between Respondent and Mrs. McEachern (Petitioner's Exhibit 33). However, he never supplied the documents. As communications soured, Respondent insisted that the McEacherns communicate with him in writing. The court does not find Respondent barred McEachern from all communication, however, given the visits Mrs. McEachern made to the office and the frequency and nature of the communications between Mrs. McEachern and Respondent, with escalating behaviors occurring, the court finds Respondent wished to have only written communications with McEachern given the difficulties they were experiencing.
Bar Counsel did not show Respondent, who participated in McEachern's federal case and certainly knew what transpired, was unaware of the fact that certain documents were sealed. The court does find that Respondent ought to have either noted an appeal or ensured McEachern was aware of the date by which he needed to appeal the hearing judge's denial of coram nobis relief, ought to have provided to McEachern a copy of the hearing judge's ruling (Exhibit 40, letter to McSpaden), and that upon being requested to do so, Respondent ought to have moved to withdraw his appearance in the open matter in State court and in the Federal matter, rather than relying upon McEachern to file a motion for withdrawal (Petitioner's Exhibit 47).
The court does not find that as a general matter, Respondent failed to adequately communicate with McEachern, either directly or through him or his wife. McEachern was fully aware of the fact that the hearing judge's ruling held up the entire process, and was fully aware of the fact that little could be done to move the federal case forward absent the hearing judge's ruling. Likewise, the court finds Respondent was justified in withholding any sealed documents from Mrs. McEachern and Mr. McEachern as his professional obligation required.

         Regarding Respondent's fee arrangement with the McEacherns and the safekeeping of their funds, the hearing judge found that Respondent did not place the funds in escrow and did not maintain an accounting of his time representing Mr. McEachern:

McEachern takes no issue with fees paid to Respondent for handling the coram nobis matters (Petitioner's Exhibit 59, letter from his wife dated November 24, 2015).
As to the traffic matter pending in state court, the court is unclear on when Respondent was retained to represent McEachern. However, Respondent was so retained and received a cash payment of $2, 500. Respondent contends the fees tendered for this matter totaled $1, 500. Respondent provided no retainer agreement for the matter and did not deposit or maintain any of the funds in his trust account, despite not having received consent to bypass the trust account process.
Respondent was also retained to represent McEachern in federal court in the event McEachern succeeded in the coram nobis matters. For this matter, McEachern paid $2, 500 cash. Again, Respondent contends he charged McEachern $1, 500 for the federal court matter. Respondent prepared no retainer agreement and did not place any funds in escrow. The court finds Mrs. McEachern more credible on the amounts Respondent charged McEachern for Respondent's services.
The court does not find credible Respondent's written accounting of time spent representing McEachern (Petitioner's Exhibit 57, letter from Respondent), as there is no indication Respondent records contemporaneously with the services he provided. Rather, at most, this court finds Respondent attempted to "reconstruct" his activities. With regards to the federal matter, the court finds Respondent did what he could to open lines of communication and obtained a commitment from the Assistant United States Attorney assigned to the case to resolve the matter if the coram nobis petition was granted. Thus, Respondent did perform some substantive work on the federal case. However, there was not much Respondent could do to advance the federal case absent a ruling from the state court.
The court finds Respondent misrepresented to Mrs. McEachern that legal funds remained in trust when he wrote to her on June 2, 2015 (Petitioner's Exhibit 36). He likewise represented to McEachern that funds remained available when he wrote to McEachern on August 28, 2015 (Petitioner's Exhibit 50). Respondent did not follow through on his promise to send an accounting or to issue a refund. The court is not clear on whether a file exists beyond the documents Respondent filed in court, and, if so, what portion of the file is protected from disclosure. Respondent contends he forwarded his files to McEachern. The court finds Respondent credible in that regard.

         The hearing judge found that Respondent's cooperation with Bar Counsel was devoid of a "substantive response":

Upon receipt of a complaint, Bar Counsel undertook an investigation in this matter. On July 8, 2015, Bar Counsel requested a response from Respondent (Petitioner's Exhibits 32 and 35). Respondent did send a reply, but it was not completely responsive (Petitioner's Exhibit 40). Bar Counsel's August 14, 2015 request for the retainer agreement (Petitioner's Exhibit 43) went unanswered until September 21, 2015 (Petitioner's Exhibit 51) and even then, a substantive response was lacking.
By letter dated September 30, 2015, Respondent advised Bar Counsel that there exists no retainer agreement and that no refund would be offered as he earned his fees. (Petitioner's Exhibit 53). In a letter dated October 27, 2015, following docketing of the complaint, Respondent represented to Bar Counsel that McEachern paid him $1, 500 for the state matter and $1, 500 for the federal matter (Petitioner's Exhibit 57). However, Respondent was unable to provide any details as to receipt or manner of payment. Respondent candidly acknowledged the funds were not placed in his trust account. Respondent never responded to Bar Counsel's November 10, 2015 letter requesting additional information on McEachern's funds (Petitioner's Exhibit 58). He has not returned any fees to McEachern.
Bar Counsel did not produce McEachern for testimony in this matter. The court did not receive his written complaint for the truth of the matters stated therein, but, merely to allow for the court to place Respondent's reply in context. The court had no opportunity to judge McEachern's credibility. The court found Mrs. McEachern to have an aggressive demeanor, some of which may be attributable to the circumstance. However, her manner of testifying tended to support Respondent's concern that she escalated tension in his office. The court found, based on her demeanor, that she behaved in a demanding manner and invited herself to the law office at times and in a manner that suggested she was in control of Respondent and was, in part, responsible for Respondent's desire to communicate in writing rather than in person.


         After detailing these findings of fact, Judge Bryant then determined the following conclusions of law:

Rule 19-301.1 - Competence
The court finds Respondent is generally competent to handle post-conviction matters in that he possesses the requisite legal knowledge and skill to offer post-conviction services of all types, including services for post-conviction petitions, coram nobis petitions, and habeas corpus petitions.
In the Marshall case, the facts of this case reveal Respondent's personal involvement in this case was limited to writing Marshall on one occasion, reading the transcript, directing Mr. Robinson-Bey to read the transcript, discussing with Robinson-Bey the issues that each found lurking in the transcript, directing Robinson-Bey to prepare the transcript and speaking with Marshall on only one occasion.
Respondent neither played a role in preparing the petition nor reviewed the petition prior to having it submitted to Marshall. In failing to even read and verify that the petition was court-worthy and that it addressed all issues presented in the transcript, Respondent failed to use his skills and exhibit the thoroughness and preparation his promise of representation required. Moreover, Respondent failed in his duty to competently represent Marshall when he failed to discuss with him the issues to be raised in the case and failed to counsel Marshall regarding Marshall's need to preserve his federal rights by seeking post-conviction relief in timely fashion. Thus, as to his representation of Marshall, Respondent violated Rule 19-301.1.
This court stops short of suggesting Marshall's post-conviction petition itself was meritless. Bar counsel presented no evidence to suggest other issues ought to have been raised and certainly presented no legal expert to opine how the petition ought to have differed from that presented to but rejected by Marshall in December 2014 based on the issues presented at trial. The fact that Marshall and his fellow inmates took a dim view of the petition is insufficient to show in and of itself the petition was inadequate.
Bar Counsel did not demonstrate Respondent violated Rule 19-301.1 in his representation of Simmons and McEachern in terms of the substantive work he offered.
As pertains to Respondent's failure to properly manage Ms. Monroe's funds after depositing them in his trust account, Respondent violated Rule 19-301.1. Attorney Grievance Comm'n v. Bell, 432 Md. 542, 554 (2013). Never having bothered to place Simmons' funds and McEachern's funds in his trust account, this court does not conclude Respondent breached 19-301.1 with respect to the handling of their funds.
Rule 19-301.2 Scope of Representation and Allocation of Authority Between Client and Attorney
Respondent had little communication with Marshall regarding the contents of the petition, failed to read the petition to ensure its contents fairly addressed any potential legal issues to be raised in the post-conviction proceedings, and upon learning Marshall was unhappy with the draft, simply counseled him to file the petition and allow for amendment rather than taking steps to rectify the problem, thereby engendering no confidence in the client. For these reasons, the court finds Respondent violated Rule 19-301.2(a).
The court does not find Respondent violated Rule 19-301.2 as pertains to clients Simmons and McEachern.
Rule 19-301.3 Diligence
The court finds Respondent read Marshall's transcript upon receipt and directed Robinson-Bey to prepare the petition. He began working on the case well in advance of having been paid to represent Marshall. Thus, at the outset, he showed diligence in representing Marshall. However, the court cannot find he diligently represented Marshall as he failed to adequately communicate with Marshall regarding the issues to be raised in the petition. Although Respondent, as counsel, has the right to determine how to accomplish the goal of obtaining post-conviction relief, he still has an obligation to meet with his client, engage in meaningful discourse, and take into consideration the client's position, whether or not the client's issues ever make it into the document.
This court notes as an aside that it is not unusual for counsel and clients to disagree on the scope and contents of the post-conviction pleading, and this court has encountered cases where counsel and the client submitted separate pleadings and offered separate arguments at the post-conviction hearing, counsel having determined that counsel could not, in good faith, offer certain arguments to the court. However, in this case, counsel and Marshall never conferred in any meaningful way that would have permitted Respondent to ensure his course of action met the goals of representation, including, but not limited to filing the petition in a timely fashion to ensure preservation of Marshall's federal rights. Thus, by clear and convincing evidence, Respondent failed to diligently represent Marshall.
This court does not find Respondent violated Rule 19-301.3 as to clients Simmons and McEachern.
Rule 19-301.4 Communication
Respondent relied almost exclusively on Robinson-Bey to communicate with Marshall, whether directly or through Mr. and Mrs. Monroe. He did not communicate with Marshall in any meaningful way, and acknowledges that at most, he had two conversations with Mr. Marshall, the second of which occurred when Marshall discussed his dissatisfaction with the product. In short, Respondent failed to explain to Marshall the viability of any legal theories to support the petition, failed to discuss Respondent's reasons for offering or not offering various arguments in the initial pleading and failed to discuss with Marshall the need to timely file the post-conviction petition to preserve his federal rights. Moreover, once Marshall expressed displeasure, Respondent merely offered to "amend" the petition later, which suggests either he did not explore every possible issue raised in the transcript or simply was attempting to momentarily appease Marshall. In short, Respondent began to represent Marshall in May 2014. He did not have any meaningful dialogue with Marshall until December 19, 2014. Clearly and convincingly, Respondent failed to communicate with Marshall, thereby violating Md. Rule 19-301.4(a)(2) and a(3) and Rule 19-301.4(b).
The court finds Respondent failed to comply with Md. 19-301.4(b) when he failed to notify McEachern of the date by which an appeal needed to be ...

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