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Attorney Grievance Commission of Maryland v. Donnelly

Court of Appeals of Maryland

February 15, 2018

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
VERNON CHARLES DONNELLY

          Argued: October 6, 2017

         Circuit Court for Prince George's County Case No. CAE16-12078

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

          OPINION

          WATTS, J.

         This attorney discipline proceeding involves a lawyer who was a member of a limited liability company and had been designated as the company's counsel. As counsel for the company, the lawyer, who had no prior history of disciplinary action, in a lapse of judgment, apparently brought about by his dual role as counsel and a member of the company, engaged in actions not authorized by the company. The lawyer filed a complaint for partition of property against one of the company's members who owned property jointly with the company, and drafted and executed a document assigning the company's property to a trust, appointing himself as the trustee. The lawyer failed to provide the complaint and assignment to the company, failed to communicate changes to a fee agreement and to have a contingent fee agreement signed by members who owned a majority of the company, and failed to move to dismiss the partition case and promptly surrender the company's papers upon the termination of his representation.

         Vernon Charles Donnelly, Respondent, a member of the Bar of Maryland, was one of six people who formed Solomons One, LLC. The other five people were: Deborah Steffen, who is Donnelly's girlfriend; Dr. Alfred Greenberg and Halina Greenberg, who are spouses; and Christine McNelis and Catherine Erickson-File. Solomons One's members signed a Memorandum of Understanding and Agreement ("the MOU"), in which Solomons One retained Donnelly as its counsel. Solomons One's purpose was to purchase and develop a piece of real property that was adjacent to the Patuxent River. Solomons One and McNelis acquired ownership interests in the property; Solomons One owned a 70% interest in the property, and McNelis owned a 30% interest. Donnelly and Steffen owned an adjoining property. It was Donnelly's understanding that he, Steffen, Solomons One, and McNelis had the right to build a pier over the Patuxent River, adjacent to the two properties. On behalf of himself and Solomons One, Donnelly submitted to Calvert County and the State a joint application to build such a pier. Ultimately, Calvert County and the State denied the joint application.

         Solomons One's members debated whether to sue Calvert County and the State to secure its right to build a pier. Donnelly drafted, and he and Steffen signed, an Attorney-Client Agreement, naming Solomons One as the client and Donnelly as the attorney for Solomons One. On behalf of himself and Solomons One, Donnelly filed a complaint against Calvert County and the State, seeking the right to build a pier. Donnelly contended that he forwarded to the members of Solomons One a cover letter describing the Attorney-Client Agreement, with the Agreement and the complaint as attachments. While the pier rights litigation was pending, Donnelly drafted an Assignment of Contract Rights, in which Solomons One purportedly assigned its right to build a pier to Donnelly to hold as a trustee for Solomons One's members. The Assignment of Contract Rights changed the contingency fee arrangement that was set forth in the Attorney-Client Agreement. Donnelly and Steffen were the only members of Solomons One who signed the Assignment of Contract Rights.

         On Solomons One's behalf, Donnelly filed a complaint against McNelis, seeking a partition of the property owned by Solomons One and McNelis. Subsequently, at a meeting of Solomons One's members, members who owned a majority of Solomons One voted to revoke the MOU and discharge Donnelly as Solomons One's counsel. Donnelly, however, continued to act on Solomons One's behalf in the pier rights litigation. Donnelly's position was that, although the revocation of the MOU terminated him as Solomons One's counsel for general purposes, the Attorney-Client Agreement independently authorized him to continue to represent Solomons One in the pier rights litigation. This litigation was ultimately successful, with Solomons One gaining the right to build a pier.

         Jennifer Kneeland, counsel for the Greenbergs, and Laurence W.B. Cumberland, counsel for Erickson-File and McNelis, filed complaints against Donnelly with Bar Counsel. In the complaints, Kneeland and Cumberland alleged that, among other misconduct, Donnelly acted without Solomons One's authorization in continuing to represent Solomons One in the pier rights litigation, drafting and executing the Assignment of Contract Rights, and filing the complaint to seek a partition of Solomons One's and McNelis's property.

         On March 29, 2016, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Donnelly, charging him with violating Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 1.2 (Scope of Representation and Allocation of Authority Between Client and Lawyer), 1.4 (Communication), 1.5(a), (b), and (c) (Fees), 1.7 (Conflict of Interest: General Rule), 1.8(i) (Conflict of Interest: Current Clients: Specific Rules: Proprietary Interest), 1.13 (Organization as Client), 1.15(a) and (d) (Safekeeping Property), 1.16(a) and (d) (Terminating Representation), 3.1 (Meritorious Claims and Contentions), 3.3(a)(1) and (2) (Candor Toward the Tribunal), 4.2(a) (Communication with Person Represented by Counsel), 4.4(a) (Respect for Rights of Third Persons), 8.1 (Disciplinary Matters), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MLRPC).[1]

         On April 7, 2016, this Court designated the Honorable Nicholas E. Rattal ("the hearing judge") of the Circuit Court for Prince George's County to hear this attorney discipline proceeding. Between February 13, 2017 and April 4, 2017, on thirteen non-consecutive days, the hearing judge conducted a hearing. On June 20, 2017, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law, concluding that Donnelly had violated MLRPC 1.2, 1.4, 1.5, 1.8(i), 1.13(a), 1.15(d), 1.16(a)(3) and (d), 3.1, 3.3(a)(1), 8.1, and 8.4(c), (d), and (a), but had not violated MLRPC 1.7, 4.2(a), 4.4(a), or 8.4(b).

         On October 6, 2017, we heard oral argument. For the below reasons, we suspend Donnelly from the practice of law in Maryland for thirty days.

         BACKGROUND

         The hearing judge found the following facts, which we summarize. In May 1982, this Court admitted Donnelly to the Bar of Maryland. Donnelly maintains an office for the practice of law in Solomons, Maryland.

         Donnelly's Purchase of Property

         In 1993, Donnelly purchased a property at 14532 Solomons Island Road in Solomons, Maryland, next to the Patuxent River. Subsequently, Donnelly learned that his property and a property adjacent, 14538 Solomons Island Road ("the Property"), included the right to build a commercial pier. In 1995, Donnelly began a personal relationship with Steffen. At some point, Steffen acquired an ownership interest in the property that Donnelly had purchased at 14532 Solomons Island Road.

         The Operating Agreement

         On June 1, 2005, Donnelly, Steffen, the Greenbergs, Erickson-File, and McNelis signed an Operating Agreement ("the Operating Agreement"), creating Solomons One. Solomons One's purpose was to develop, manage, lease, and sell real property. Solomons One had six members, each with the following interests: Donnelly, 24 1/3%, Steffen, 24%, the Greenbergs jointly, 48 1/3%, Erickson-File, 2 1/3%, and McNelis, 1%.

         The Operating Agreement provided for decision-making as follows:

The Members, acting jointly, shall have the right to manage the business of [Solomons One], including, but not limited to, establishing and reviewing rental arrangements concerning the Property, encumbering, pledging, conveying[, ] and otherwise dealing with any or all of the Property, borrowing funds (executing confessed judgment notes in connection therewith)[, ] and operating [Solomons One's] business. Management decisions shall be approved by majority vote of the members.

(Emphasis added). Each member's vote counted for the percentage of Solomons One that he or she owned.[2] The Operating Agreement specifically stated that management decisions, including whether to engage in litigation, must be "approved by a majority vote of the members."

         The Operating Agreement advised each member to seek independent counsel to review the agreement, as follows:

The parties hereto acknowledge that this Operating Agreement has been drafted by [] Donnelly[], who is a member of [Solomons One], at the request of the Members. [] Donnelly[] has not acted as counsel for the individual members[, ] and each Member acknowledges that he or she has been advised to seek their own independent attorney as to their rights and obligations under this [Operating] Agreement. Each member acknowledges that he or she has retained other counsel to review . . . this [Operating] Agreement. Each member acknowledges that[, ] entering into this [Operating] Agreement, he or she has not relied upon the legal advice of [] Donnelly, nor has [] Donnelly acted as their legal counsel for this matter. Likewise, [] Donnelly[], has not provided any member with advice as to any estate issues arising from th[is Operating] Agreement or the impact of this [Operating] Agreement on a member's individual estate planning.

         At the disciplinary hearing, all of Solomons One's members, except Donnelly, testified that they knew that they had the opportunity to engage independent counsel regarding the Operating Agreement, but decided not to do so.

         The MOU

         On August 10, 2005, Donnelly, Steffen, the Greenbergs, Erickson-File, and McNelis, on Solomons One's behalf, and Donnelly, individually, signed the MOU. The MOU provided that Donnelly would be Solomons One's counsel, and that he could be terminated upon written notice from a member. The MOU acknowledged that Donnelly's appointment as counsel involved a conflict of interest, as Donnelly was a member of Solomons One. The hearing judge found that Steffen, the Greenbergs, Erickson-File, and McNelis understood that there was a conflict of interest with regard to Donnelly's representation of Solomons One, and "expressly waived such conflict of interest" by signing the MOU.

         Solomons One's Purchase of Property and the Joint Venture Agreement

         In August 2005, Solomons One purchased the Property at 14538 Solomons Island Road. BB&T Bank loaned the money for the purchase. Solomons One's members were the loan's guarantors. On August 12, 2005, Solomons One and McNelis entered into a Joint Venture Agreement, pursuant to which Solomons One acquired a 70% interest in the Property, while McNelis acquired a 30% interest in the Property. The Joint Venture Agreement stated that, if Solomons One filed for bankruptcy, McNelis would have the option to purchase the Property.

         Joint Application to Build Pier and Initial Discussions of Possible Pier Litigation

         Between 2008 and 2012, Donnelly had intermittent conversations with Solomons One's other members regarding the Property's pier rights. Eventually, Donnelly submitted a joint application to Calvert County and the State to build such a pier. Donnelly testified that he had Solomons One's consent to submit the joint application. Calvert County and the State denied the joint application.

         Thereafter, Solomons One's members discussed whether Solomons One should pursue litigation to secure its right to build a pier. On April 3, 2012, Donnelly e-mailed Dr. Greenberg regarding Solomons One's right to build a pier. Dr. Greenberg responded: "I love the idea." On July 12, 2012, Donnelly again e-mailed Dr. Greenberg regarding Solomons One's right to build a pier. Dr. Greenberg testified that he could not recall whether, in response to Donnelly's July 12, 2012 e-mail, he authorized Donnelly to engage in litigation to secure Solomons One's right to build a pier. Dr. Greenberg testified: "I believe [that] I had taken a stand [that] we were not interested in pier rights." On July 14, 2012, Mrs. Greenberg sent an e-mail in which she stated that engaging in litigation to secure Solomons One's right to build a pier would be a "fool's errand[.]" In the same email, Mrs. Greenberg stated that she did not want to pay any attorney's fees that would result from such litigation.

         Daniel Guenther, Erickson-File's and McNelis's counsel, testified that he was certain that he did not authorize Donnelly to represent Solomons One, McNelis, and/or Erickson-File in litigation to secure Solomons One's right to build a pier. Guenther did not recall telling Donnelly to protect Erickson-File's and McNelis's interests in Solomons One's right to build a pier.

         On July 31, 2012, Dr. Greenberg e-mailed Donnelly, stating: "[W]e should not incur further expenses[.]" On August 2, 2012, Dr. Greenberg e-mailed Donnelly, stating: "[W]e have decided not to participate in the pursuit of the pier rights for" the Property. On August 7, 2012, however, Dr. Greenberg e-mailed Donnelly, stating:

I have been in touch with [McNelis] and [Erickson-File] and rethinking the pier rights question. They will be consulting their attorney on the 9th. . . . However, it looks like we will be going forward with this, so let me know what has to be done on this end. So do we need agreements between us, et cetera. . . [W]e'll do what is necessary as per your instructions.

(Second ellipsis in original). Dr. Greenberg testified that he ultimately decided to move forward with litigation to secure Solomons One's right to build a pier to increase the value of the Property, as well as the value of Solomons One itself.

         The hearing judge found that members who owned a majority of Solomons One authorized Donnelly to pursue litigation to secure its right to build a pier. Those members were Donnelly, Steffen, and Dr. Greenberg.

         Attorney-Client Agreement

         On August 21, 2012, Donnelly and Steffen signed an Attorney-Client Agreement as "Member[s] and Operating Manager[s]" of Solomons One. In the Attorney-Client Agreement, Solomons One purportedly retained Donnelly to represent it in litigation to secure its right to build a pier. The Attorney-Client Agreement provided for a contingency fee, stating: "If there is no recovery, no fees are due from [Solomons One]."

         On August 22, 2012, Donnelly made a handwritten alteration to the Attorney-Client Agreement. The Attorney-Client Agreement, contained in the record, addressed fees, with certain parts crossed out by hand, as follows:

[Solomons One] agrees to retain [Donnelly] under a contingency fee agreement, plus a fixed reimbursement for attorney['s] fees and costs[, ] explained as follows: A. If a recovery, [Solomons One] agrees to pay [Donnelly] from any recovery $12, 000 in attorney['s] fees and costs; and B. Additionally, if a recovery, [Solomons One] agrees that [Donnelly] is entitled to 33 1/3% of any settlement or amount recovered by a decision or settlement at the Circuit Court level, or 40% of any settlement of an amount recovered by decision at the appellate court level.

         The hearing judge found that Donnelly and Steffen testified that the Greenbergs did not see "the final version of the" Attorney-Client Agreement. No meeting of Solomons One's members was held to discuss the Attorney-Client Agreement. Although Dr. Greenberg authorized Donnelly to pursue litigation to secure Solomons One's right to build a pier, Dr. Greenberg testified that he did not think that Donnelly should have been paid for pursuing such litigation, as Solomons One's members had agreed to contribute their time, effort, and professional expertise toward Solomons One's objectives. Steffen testified that she was privy to a conversation in which the Greenbergs authorized the Attorney-Client Agreement. Consistently, Donnelly testified that, during a telephonic conversation, Dr. Greenberg authorized him to execute the Attorney-Client Agreement.

         Dr. Greenberg could not remember a telephonic conversation with Donnelly in which he authorized the Attorney-Client Agreement. Dr. Greenberg denied that he had received a copy of the Attorney-Client Agreement with the handwritten changes on it. Dr. Greenberg denied that he had authorized Donnelly "to act as an attorney for [Solomons One] in executing the" Attorney-Client Agreement. Mrs. Greenberg testified "that she did not discuss the fee agreement with anyone." Erickson-File testified that she was shocked and angered when she saw the Attorney-Client Agreement. Erickson-File denied agreeing to pay Donnelly for pursuing litigation to secure Solomons One's right to build a pier. Similarly, McNelis denied that she had authorized the Attorney-Client Agreement.

         Guenther testified that he had not, on Erickson-File's and McNelis's behalf, authorized Donnelly to enter into the Attorney-Client Agreement. Immediately after quoting a portion of Guenther's testimony, the hearing judge found "that Bar Counsel's witnesses were more credible than [Donnelly]'s witnesses[, ] and that the Attorney[-]Client Agreement was not authorized." The hearing judge found that members who owned a majority of Solomons One did not authorize the Attorney-Client Agreement. The hearing judge also found that Donnelly's "attempt to bind [Solomons One] to [the] Attorney[-]Client Agreement was [] done in a dishonest and deceitful manner."

         Start of Pier Case

         In the Circuit Court for Calvert County ("the circuit court"), Donnelly filed a complaint, initiating litigation to secure Solomons One's right to build a pier ("the Pier Case"). Donnelly contended that he mailed to the Greenbergs a letter dated August 23, 2012, a copy of the complaint in the Pier Case, and the Attorney-Client Agreement. The hearing judge found that Dr. Greenberg testified that he did not recall receiving Donnelly's August 23, 2012 letter, the complaint in the Pier Case, or the Attorney-Client Agreement. The hearing judge found that Dr. Greenberg testified that he received a letter from Donnelly dated September 1, 2012, as well as billing statements. Dr. Greenberg did not remember contacting Donnelly about his September 1, 2012 letter, and testified that he did not "believe" that he had communicated with Donnelly in September 2012.

         Donnelly kept Solomons One's other members updated regarding the Pier Case by sending them correspondence and pleadings. Donnelly sent the Greenbergs, Erickson-File, and McNelis letters in which he described developments in the Pier Case. Additionally, starting in September 2012, Donnelly sent Solomons One's other members monthly statements that detailed the legal services that he was providing on Solomons One's behalf. In the monthly statements Donnelly listed Solomons One as the client.

         Assignment of Contract Rights

         On or about December 4, 2012, Donnelly prepared an Assignment of Contract Rights, under which Donnelly would "act as trustee[, ]" and hold the right to build a pier in trust for Solomons One's members, including himself. The Assignment of Contract Rights provided for $8, 000 in attorney's fees and costs, as well as a contingency fee. On December 4, 2012, Donnelly and Steffen signed the Assignment of Contract Rights.

         The hearing judge found that Donnelly testified that members who owned a majority of Solomons One authorized him to execute the Assignment of Contract Rights. At the disciplinary hearing, as a witness for Donnelly, Patricia Davis, his secretary, testified that, while she was at her desk outside Donnelly's office, she heard Dr. Greenberg tell Donnelly to proceed with the Assignment of Contract Rights. The hearing judge found, however, that there were "reasons to doubt that Davis could have been able to hear and/or understand what [the Greenbergs said], and whether her recollections of the conversation were based on what [Donnelly] and Steffen told her about the conversation." For example, in an affidavit that was submitted to Bar Counsel during the investigation in this attorney discipline proceeding, Davis averred:

I was able to overhear [] Donnelly and [] Steffen's responses during this telephone conversation between [] Donnelly and Dr. Greenberg. I could determine that [] Dr. Greenberg agreed and authorized [] Donnelly to prepare the Assignment of Contract Right[s.] . . . [] Donnelly and I also had a conversation about the telephone call[, ] and[, ] during that conversation, [] Donnelly reconfirmed that Dr. Greenberg was in agreement to assign the commercial pier right from Solomons One [] to [its] individual members and that[, ] together with the Greenbergs, [] Steffen and [] Donnelly, it was a majority vote to assign the commercial pier right[s].

         In the affidavit, Davis did not aver that she could hear what the Greenbergs were saying, or that the telephonic conversation was on speakerphone. The hearing judge determined that the affidavit demonstrated that Donnelly and Steffen were the sources of Davis's recollection of the Greenbergs' role in the conversation.

         Steffen testified that she was privy to a telephonic conversation in which Donnelly and the Greenbergs discussed the assignment of Solomons One's right to build a pier. In an affidavit that was submitted during Solomon One's bankruptcy proceeding-which is discussed below-Steffen averred that the telephonic conversation was not on speakerphone. Steffen averred, however, that she was "present" during the telephonic conversation and could hear it. Steffen averred that, based on the telephonic conversation and Donnelly's reaction, she knew that the Greenbergs had agreed to the assignment of Solomons One's right to build a pier.

         By contrast, the Greenbergs, Erickson-File, and McNelis testified that they did not authorize Donnelly to execute the Assignment of Contract Rights. The Greenbergs, Erickson-File, and McNelis testified that they did not know about the Assignment of Contract Rights until May or June 2013, when McNelis found it while searching the land records of Calvert County. McNelis testified that she was "shocked" to find the Assignment of Contract Rights. Guenther, Erickson-File's and McNelis's counsel, testified that he never authorized Donnelly "to do anything."

         The hearing judge found that Bar Counsel's witnesses were more credible than Donnelly's witnesses on the issue of whether Donnelly was authorized to execute the Assignment of Contract Rights. In other words, the hearing judge found that the Assignment of Contract Rights was unauthorized. The hearing judge also found that Donnelly's "conduct with regard to the Assignment [of Contract Rights] was dishonest as to [Solomons One], the Greenbergs, McNelis[, ] and Erickson-File, in that he used it to divest [Solomons One] of an asset and establish a trust enabling him to pursue the [Pier Case] without acting as" Solomons One's counsel.

         Donnelly did not send a copy of the Assignment of Contract Rights to the Greenbergs, McNelis, Erickson-File, or Guenther. Donnelly testified that he did not provide the Assignment of Contract Rights to the Greenbergs because they preferred to leave matters to attorneys, and "they had a small place." Donnelly sent Erickson-File and McNelis a letter dated December 11, 2012, attached to which were nine documents that were related to the Pier Case. Donnelly did not mention the Assignment of Contract Rights in his December 11, 2012 letter, nor in subsequent letters to Erickson-File and McNelis dated February 26, 2013, April 8, 2013, May 7, 2013, May 30, 2013, and July 18, 2013. On December 28 and 30, 2012, Donnelly communicated with the Greenbergs, Erickson-File, and McNelis. In those communications, Donnelly did not mention the Assignment of Contract Rights, or that he was acting as a trustee for himself and Solomons One's other members.

         On December 28 or 29, 2012, in an e-mail that was addressed to McNelis and also sent to Solomons One's other members, Donnelly stated:

[With regard] to the [P]ier [C]ase[, y]ou will recall that I tried to get your involvement[, ] but you decided to follow [] Guenther's advice. The [Pier Case] was filed on behalf of [Solomons One's] member[s'] interests, not on behalf of your individual interest in the property. Hopefully[, ] Guenther took action to preserve your individual interest. If not[, ] there may be a limitations bar. That said, I can think of several possible ways to address that issue[, ] but I am not your attorney.

         Donnelly did not mention the Assignment of Contract Rights in this e-mail. The hearing judge found that Donnelly's statements in this e-mail were inconsistent with Donnelly's position that McNelis's individual interest in Solomons One's right to build a pier had been assigned to him effective December 4, 2012, and that Donnelly was a trustee for McNelis's interest.

         Donnelly's Filings in Pier Case After Assignment of Contract Rights

         After executing the Assignment of Contract Rights on December 4, 2012, Donnelly continued to act as counsel for the plaintiffs in the Pier Case, including himself and Solomons One. On December 13, 2012, in the Pier Case, Donnelly filed a motion for summary judgment, a memorandum in support of the motion for summary judgment, and a statement of material facts not in dispute. On March 21, 2013, Donnelly filed a motion to compel discovery. On April 4, 2013, Donnelly filed another motion to compel discovery. On April 15, 2013, Donnelly filed a motion for sanctions and a motion to shorten time.

         Confession of Judgment[3] Case

         In August 2012, having notified Solomons One's other members that they would do so, Donnelly and Steffen stopped making monthly contributions to Solomons One. In September 2012, the Greenbergs, Erickson-File, and McNelis also stopped making monthly contributions to Solomons One. After August 2012, Solomons One stopped making payments to BB&T Bank, which had loaned the money for Solomons One's purchase of the Property. In March 2013, BB&T Bank filed a complaint against Solomons One and its members, seeking a confession of judgment ("the Confession of Judgment Case").

         On April 20, 2013, Donnelly e-mailed Solomons One's other members, suggesting that he file, on Solomons One's behalf, a motion to vacate in the Confession of Judgment Case. Donnelly testified that he did not receive a reply to his April 20, 2013 e-mail. Donnelly testified, however, that the Greenbergs authorized him to file a motion to vacate in the Confession of Judgment Case. Dr. Greenberg testified that he could not recall whether he authorized Donnelly to file a motion to vacate. In April 2013, in the Confession of Judgment Case, on Solomons One's behalf, Donnelly filed a motion to vacate BB&T Bank's Confession of Judgment. Donnelly believed that doing so was within his authority as Solomons One's counsel, and was in Solomons One's best interest.

         Partition Case

         On May 2, 2013, in the circuit court, on Solomons One's behalf, Donnelly filed a complaint against McNelis, seeking a partition of the Property ("the Partition Case"). At the disciplinary hearing, Steffen testified that she was "present" during a telephonic conversation in which Dr. Greenberg authorized Donnelly to file the complaint in the Partition Case. The Greenbergs testified, however, that they did not authorize Donnelly to file the complaint. Dr. Greenberg did not recall seeing a copy of the complaint. Mrs. Greenberg testified that Donnelly filed the complaint without her knowledge. The hearing judge found that Donnelly did not consult with Solomons One's other members before filing the complaint in the Partition Case, and that Donnelly was not authorized to file the complaint.

         May 17, 2013 Meeting of Solomons One's Members and Aftermath

         Kneeland, the Greenbergs' counsel, assisted Dr. Greenberg in setting up a meeting of Solomons One's members, the purpose of which was to discharge Donnelly as Solomons One's counsel. On or about May 3, 2013, Donnelly was notified that a meeting of Solomons One's members had been scheduled for May 9, 2013. Donnelly was informed that the meeting's purpose was to discuss revoking the MOU. At Donnelly's request, the meeting was postponed to May 17, 2013. On May 16, 2013, Donnelly recorded the Assignment of Contract Rights in the land records of Calvert County. On May 17, 2013, the meeting of Solomons One's members, including Donnelly, occurred. Members who owned a majority of Solomons One voted to revoke the MOU and terminate Donnelly as Solomons One's counsel. Donnelly and Steffen voted not to do so. At the meeting, Solomons One's members could not agree on who would succeed Donnelly as Solomons One's counsel. At the meeting, the Pier Case was not discussed, and Donnelly did not mention the Attorney-Client Agreement or the Assignment of Contract Rights.

         On the same day as the meeting, with Kneeland's assistance, Dr. Greenberg emailed Donnelly, stating: "As a follow-up to today[']s meeting of Solomons One, [] please send a note to the members terminating your representation as counsel to Solomons One [] as of today[.]" Donnelly replied: "No. The minutes reflect what happened."

         In discussing the May 17, 2013 meeting of Solomons One's members, the hearing judge concluded that Donnelly "did not withdraw the [P]artition [Case], despite being requested to do so." On or about June 12, 2013, Kneeland and Solomons One's new counsel mailed Donnelly a cease-and-desist letter. In a letter to Kneeland dated June 19, 2013, Donnelly stated that he had filed the complaint in the Partition Case to protect Solomons One's interests, and to fulfill his responsibilities as Solomons One's counsel. As to the May 17, 2013 meeting, Donnelly stated:

As you know, [Solomons One's] members voted to terminate me as counsel for [Solomons One]. [] Steffen and I (48 1/3% membership interest) disagreed with that action. As of [May 17, 2013], I ceased my legal representation as counsel for [Solomons One] pending the members' selection of new, independent counsel for [Solomons One]. By agreement and practice, the selection of counsel for [Solomons One] is by unanimous consent of the members.

         The hearing judge determined that, in so stating, Donnelly recognized that, as of May 17, 2013, he was no longer authorized to speak or act on Solomons One's behalf.

         Donnelly did not participate in Solomons One's other members' efforts to retain new counsel for Solomons One. In mid-July 2013, the members of Solomons One other than Donnelly agreed to retain Ralph Powers as Solomons One's new counsel.

         Proceedings in the Pier Case

         Donnelly did not inform the circuit court of his discharge as counsel for Solomons One, and continued to act as Solomons One's counsel in the Pier Case. On May 30, 2013, in the Pier Case, Donnelly filed a supplemental memorandum of law in support of a motion for declaratory judgment. On June 17, 2013, the circuit court conducted a hearing in the Pier Case. Donnelly appeared at the hearing on behalf of the plaintiffs, including himself and Solomons One. At the conclusion of the hearing, the circuit court granted summary judgment in favor of the plaintiffs, determining that the plaintiffs had a right to build a pier. A hearing on damages was scheduled for October 16, 2013. On July 24, 2013, in the Pier Case, on behalf of himself, Solomons One, and the other plaintiffs, Donnelly filed a motion for entry of final judgment.

         Complaint for Dissolution and the Start of Bankruptcy Case

         In or before August 2013, Donnelly filed a complaint for dissolution of Solomons One.[4]

         On August 23, 2013, in the United States Bankruptcy Court for the District of Maryland, Solomons One filed a petition for Chapter 11 bankruptcy, initiating a bankruptcy proceeding ("the Bankruptcy Case"). Donnelly had opposed filing the petition for bankruptcy protection, noting that, under the Joint Venture Agreement, if Solomons One filed for bankruptcy, McNelis had the option to buy the Property. The filing of the petition in the Bankruptcy Case resulted in an automatic stay in all other cases that involved attempts to exercise control over Solomons One's property, including the Pier Case.[5]

         Further Proceedings in the Pier Case

         On September 3, 2013, in the Pier Case, Donnelly filed a "substitution of the trustee for" Solomons One. Donnelly testified that Maryland Rule 2-241 (Substitution of Parties)[6]required him to file the substitution of the trustee because an appeal was pending in the Pier Case.[7] Donnelly's filing of the substitution of the trustee was the first time that he advised the circuit court that Solomons One was no longer the party in interest in the Pier Case. On October 16, 2013, on behalf of the plaintiffs in the Pier Case, Donnelly appeared before the circuit court, which conducted a status conference rather than a hearing on damages.

         In the Pier Case, Solomons One's bankruptcy counsel filed a motion to strike Donnelly's appearance ("the Motion to Strike"). In September 2013, Donnelly filed an opposition to the Motion to Strike. Donnelly testified that he opposed the Motion to Strike because, in the Motion to Strike, Solomons One's counsel had alleged that Donnelly had engaged in fraud, conversion, and malpractice.

         Proceedings in the Bankruptcy Case

         In the Bankruptcy Case, Donnelly filed a motion to dismiss on the ground that the decision to file the petition for bankruptcy protection had not been unanimous. Donnelly filed the motion to dismiss in his capacity as a member of Solomons One, not in his capacity as an attorney. As of October 28, 2013, Donnelly had failed to provide Solomons One's papers and files to its new counsel. As a result, on or before that date, in the Bankruptcy Court, Solomons One's counsel filed a motion to compel turnover. In an Order dated October 30, 2013, the Bankruptcy Court denied the motion to dismiss, concluding that majority vote, not unanimous consent, was sufficient for Solomons One to file the petition for bankruptcy protection. The Bankruptcy Court "ruled that [Donnelly]'s actions [in the Pier Case] were a violation of the automatic stay" that had resulted from the Bankruptcy Case.

         Donnelly's Correspondence with Bar Counsel

         Kneeland and Cumberland filed complaints against Donnelly with Bar Counsel. Bar Counsel asked Donnelly for a response to Kneeland's and Cumberland's complaints. At the disciplinary hearing, Donnelly testified that he made truthful statements to Bar Counsel in his responses to Kneeland's and Cumberland's complaints.

         In a letter to Bar Counsel dated August 27, 2013, Donnelly stated that he had "served as counsel for Solomons One[] from August, 2005 until discharged by [Solomons One's] members on May 17, 2013." The hearing judge found that Donnelly's statement was false because, after being discharged as Solomons One's counsel on May 17, 2013, Donnelly continued to represent Solomons One in the Pier Case. According to the hearing judge, in his August 27, 2013 letter to Bar Counsel, Donnelly stated that the Attorney-Client Agreement was authorized by the Greenbergs, Erickson-File, and McNelis. The hearing judge found that this statement was false. Nonetheless, elsewhere in his opinion, the hearing judge stated that, during the hearing, "Bar Counsel did not specifically identify statements [in Donnelly's letters to Bar Counsel that] it contended were false."

         Aggravating Factors and Mitigating Factors

         The hearing judge found that Donnelly's misconduct was aggravated by a pattern of misconduct, multiple violations of the MLRPC, and a refusal to acknowledge his misconduct's wrongful nature. The hearing judge found that Donnelly's misconduct was mitigated by the circumstances that the Assignment of Contract Rights did not cause substantial financial harm to Solomons One, and that Donnelly was successful in the Pier Case.

         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. Chanthunya, 446 Md. 576, 588, 133 A.3d 1034, 1041 (2016) ("This Court reviews for clear error a hearing judge's findings of fact." (Cleaned up)); 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 Md. R. 19-727(c) ("Bar Counsel has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence.").

         DISCUSSION

         (A) Donnelly's Request for New Hearing

         In his exceptions to the hearing judge's findings of fact and conclusions of law, Donnelly contends that Bar Counsel engaged in improprieties before and during the hearing, and that, as a result of these improprieties, he should be afforded a "fair" hearing, i.e., a new hearing.

         Donnelly contends that Bar Counsel failed to conduct an independent investigation of Kneeland's and Cumberland's complaints against him. Donnelly points out that, before the filing of the Petition for Disciplinary or Remedial Action, none of Bar Counsel's investigators interviewed him, his staff, or any other member of Solomons One. Donnelly asserts that Bar Counsel simply relied on information that had been provided by Kneeland and Cumberland, who lacked personal knowledge of the substance of the allegations against him. Donnelly maintains that Bar Counsel essentially "became the litigation arm for" the Greenbergs during the pending lawsuits that involved Solomons One's members.

         Donnelly contends that Bar Counsel inappropriately dismissed a complaint against another attorney who represented Erickson-File and McNelis in a matter. Donnelly argues that the complaint against the other attorney included allegations that were identical to those in Kneeland's and Cumberland's complaints against him-namely, that the other attorney filed pleadings on Solomons One's behalf without authorization.

         Donnelly asserts that Bar Counsel engaged in discovery violations. Donnelly alleges that, before the hearing, Bar Counsel failed to disclose the existence of papers that Guenther, Erickson-File's and McNelis's former counsel, had provided to Cumberland, Erickson-File's and McNelis's current counsel. Donnelly also alleges that the hearing judge refused to allow him to inspect these papers. According to Donnelly, Bar Counsel acknowledged that the papers included the August 23, 2012 letter from Donnelly to Guenther, to which the Attorney-Client Agreement was attached. Donnelly maintains that, by using information from the papers at the disciplinary hearing without having provided them to him, Bar Counsel violated discovery rules and Donnelly's right to due process.

         Donnelly contends that it was improper for Bar Counsel to call Guenther as a rebuttal witness at the disciplinary hearing, as Bar Counsel did not offer Guenther's testimony in response to a matter that arose during Donnelly's presentation of evidence. Donnelly argues that, due to this alleged impropriety, this Court should not consider Guenther's testimony.

         In Donnelly's response to Bar Counsel's exceptions, and at oral argument, Donnelly's counsel asserted that Donnelly had lacked sufficient notice of the allegations that he made false statements in his letters to Bar Counsel. Donnelly's counsel observed that, in the Petition for Disciplinary or Remedial Action, Bar Counsel alleged as follows: "In his responses to Bar Counsel's requests for responses to [Kneeland's and Cumberland's] complaints, [Donnelly] knowingly made misleading and inconsistent statements." Donnelly's counsel noted that Donnelly filed a response to the Petition for Disciplinary or Remedial Action, in which he contended that the above language was vague, and moved for a more definite statement.[8]

         Donnelly's counsel observed that the hearing judge stated that, during the hearing, "Bar Counsel did not specifically identify statements [in Donnelly's letters to Bar Counsel that] it contended were false." Donnelly's counsel noted that, nonetheless, the hearing judge concluded that Donnelly had violated MLRPC 8.1 (Disciplinary Matters) and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation) by making false statements to Bar Counsel. Donnelly's counsel observed that the hearing judge also concluded that Donnelly had also violated MLRPC 8.4(c) by executing the Attorney-Client Agreement and the Assignment of Contract Rights without authorization. Donnelly's counsel argued that these conclusions by the hearing judge are invalid because, in the Petition for Disciplinary or Remedial Action, Bar Counsel failed to specify any false statements by Donnelly- whether in his letters to Bar Counsel or otherwise.

         Donnelly requests that we "take appropriate action to provide [him] with a fair [hearing] and full disclosure by Bar Counsel." At oral argument, Donnelly's counsel clarified that he requests that we remand this attorney discipline proceeding and designate a new hearing judge, who would conduct the hearing.

         In this case, we do not find persuasive the grounds on which Donnelly asserts that a new hearing is warranted. Donnelly does not bring to our attention any authority that supports his contentions that a new hearing is warranted because of alleged flaws in Bar Counsel's investigation, or because Bar Counsel chose not to charge another lawyer for allegedly similar misconduct. Bar Counsel's decision not to charge another lawyer has no bearing on the question of whether Donnelly violated the MLRPC. Although the allegation that Bar Counsel failed to conduct an independent investigation is worrisome, it is not a defense to Donnelly's alleged violations of the MLRPC that Bar Counsel allegedly did not conduct a thorough investigation. Any MLRPC violations that this Court concludes are supported by clear and convincing evidence are substantiated by the hearing judge's findings of fact, testimony from the disciplinary hearing, and other evidence in the record.

         Similarly, Donnelly's allegations concerning Bar Counsel's discovery violations are troubling, but do not persuade us that a new hearing is warranted. Donnelly challenges his inability to obtain papers that Guenther forwarded to Cumberland's law firm-i.e., documents that pertained to Guenther's representation of Erickson-File and McNelis. For the most part, Donnelly does not identify the documents that he sought from Cumberland's law firm, or why the documents would have been helpful to his case. A document is not discoverable if it is subject to the attorney-client privilege or the work product doctrine. See E.I. du Pont de Nemours & Co. v. Forma-Pack, Inc., 351 Md. 396, 407, 414, 718 A.2d 1129, 1134, 1138 (1998).[9] Because Donnelly does not explain the nature of the documents that he sought, it is impossible to determine whether the attorney-client privilege and the work product doctrine would apply to these documents. In a limited instance, Donnelly specifically contends that one of the documents he was prohibited from obtaining is an August 23, 2012 letter to Guenther notifying him of the Attorney-Client Agreement. As explained below, we conclude that Dr. Greenberg received the letter dated August 23, 2012 describing the Attorney-Client Agreement and accepted Donnelly's services under the Attorney-Client Agreement. For this reason, the hearing judge's alleged failure to cause disclosure of Donnelly's August 23, 2012 letter to Guenther, containing similar information, did not affect the outcome of the case.

         In his exceptions, Donnelly mistakenly relies on Wright v. State, 349 Md. 334, 708 A.2d 316 (1998), and State v. Booze, 334 Md. 64, 637 A.2d 1214 (1994), for the proposition that Guenther's testimony as a rebuttal witness merits a new hearing. Wright, 349 Md. at 354, 708 A.2d at 326, and Booze, 334 Md. at 80, 637 A.2d at 1222, are criminal cases in which this Court held that trial courts abused their discretion in allowing the State to call rebuttal witnesses under certain circumstances. Wright and Booze do not stand for the proposition that an allegedly improper rebuttal witness entitles a respondent in an attorney discipline proceeding to a new hearing. Indeed, in Wright, 349 Md. at 342, 708 A.2d at 319, and Booze, 334 Md. at 69, 637 A.2d at 1217, this Court noted that, in a criminal case, one of the factors in an analysis of whether the State improperly called a rebuttal witness is "whether the jury would be likely to give undue emphasis" to the rebuttal witness's testimony. (Citations omitted). Such a concern is nonexistent in attorney discipline proceedings, in which hearing judges, not juries, are the finders of fact.

         At oral argument, Donnelly's counsel relied on In re Ruffalo, 390 U.S. 544 (1968) and Bar Ass'n of Balt. City v. Cockrell, 270 Md. 686, 313 A.2d 816 (1974) for the proposition that Donnelly is entitled to a new hearing due to insufficient notice of the allegations that he made false statements to Bar Counsel. In Ruffalo, 390 U.S. at 552, 545, 550, the Supreme Court of the United States reversed an order of disbarment where the attorney received insufficient notice of the charges against him. During an attorney discipline proceeding in Ohio, the disciplinary authority charged the attorney with an additional violation of the ethical rules. See id. at 546. Ultimately, based in part on that violation, the Supreme Court of Ohio disbarred the attorney. See id. at 547.[10] In a reciprocal discipline proceeding, a United States Court of Appeals also disbarred the attorney. See Ruffalo, 390 U.S. at 545. The Supreme Court noted that, in an attorney discipline proceeding, an attorney is "entitled to procedural due process, which includes fair notice of the charge." Id. at 550 (citation omitted). The Supreme Court observed that the attorney had no notice that he would be charged with the additional violation of the ethical rules until after he testified at the hearing. See id. at 550-51. The Supreme Court concluded that the lack of notice deprived the attorney of his right to due process. See id. at 552.

         In Cockrell, 270 Md. at 692-93, 313 A.2d at 819, this Court reversed a hearing judge's finding that an attorney had misappropriated his client's funds because the Bar Association of Baltimore City[11] had not charged the respondent with "that particular misconduct" in the petition. In the petition, the Bar Association of Baltimore City alleged that the attorney's client had denied receiving any money from the attorney after a settlement was reached in the client's civil case. See id. at 688, 313 A.2d at 817. The judicial panel found that the attorney misappropriated his client's funds by cashing a check from an insurance company, and then failing to convey the funds to his client. See id. at 691, 313 A.2d at 819.

         This Court observed that, under a predecessor to current Maryland Rule 19-721(b), "the charges shall be in writing and shall be sufficiently clear and specific reasonably to inform the attorney proceeded against of any misconduct charged[.]" Cockrell, 270 Md. at 692, 313 A.2d at 819 (parentheses omitted). This Court explained:

While [Maryland Rule 19-721(b)'s predecessor] does not require that the charges be set forth in any certain form or in extensive detail, it does establish a requirement that the charges be 'sufficiently clear and specific' so as to make the attorney aware of what he [or she] is compelled to answer for and defend against. In fact[, ] any rule which did not require this degree of specificity would violate the minimum requirements of constitutional due process mandated by Article 23 of the Maryland Declaration of Rights.

Id. at 692, 313 A.2d at 819 (citation and footnote omitted). In Cockrell, id. at 693, 313 A.2d at 820, this Court concluded that the Bar Association of Baltimore City had failed to comply with Maryland Rule 19-721(b)'s predecessor because it had not charged misappropriation in the petition "in any form[.]" This Court determined that it did not matter that the judicial panel's finding of misappropriation was "largely" based on the attorney's testimony. Cockrell, 270 Md. at 693, 313 A.2d at 820. This Court granted the Bar Association of Baltimore City's request for leave to amend the petition by adding a charge for misappropriation. See id. at 693, 313 A.2d at 820. This Court, however, observed that the attorney would have the opportunity to raise an objection based on Ruffalo, 390 U.S. 544. See Cockrell, 270 Md. at 693, 313 A.2d at 820.

         At oral argument, Donnelly's counsel contended that this attorney discipline proceeding is analogous to Ruffalo and Cockrell because Donnelly lacked sufficient notice of allegations regarding false statements. Maryland Rule 19-721(b) states in pertinent part: "The petition shall be sufficiently clear and specific to inform the attorney of any professional misconduct charged[.]" Here, in the Petition for Disciplinary or Remedial Action, Bar Counsel alleged the documents that contained false statements by Donnelly in violation of MLRPC 8.1 were his responses to Kneeland's and Cumberland's complaints against him. In the Petition, Bar Counsel also alleged that Donnelly violated MLRPC 8.4 because he had not been authorized to execute the Attorney-Client Agreement or the Assignment of Contract Rights. Although these allegations by Bar Counsel do not identify the particular false statements attributable to Donnelly, the allegations are specific enough to provide adequate notice of the nature of the alleged violations.

         (B) Findings of Fact

         Donnelly and Bar Counsel except to multiple findings of fact by the hearing judge.

         Finding That Attorney-Client Agreement Was Unauthorized

         Donnelly contends that the hearing judge clearly erred in finding that members who owned a majority of Solomons One did not authorize him to execute the Attorney-Client Agreement. Donnelly observes that, on August 7, 2012, Dr. Greenberg e-mailed him, stating that he wanted to move forward with litigation to secure Solomons One's right to build a pier, and asking whether any agreements were needed. Donnelly argues that Dr. Greenberg's August 7, 2012 e-mail shows that Dr. Greenberg expected to enter into an attorney-client agreement. Donnelly asserts that the evidence shows that, on August 23, 2012, he sent the Attorney-Client Agreement to the Greenbergs, who never questioned him about it. Donnelly maintains that the lack of any objection by Dr. Greenberg to the Attorney-Client Agreement shows that he authorized the agreement. In other words, Donnelly contends that Dr. Greenberg's silence operated as acceptance of the Attorney-Client Agreement. Bar Counsel responds that, based on Dr. Greenberg's testimony that he did not recall a conversation in which he authorized the Attorney-Client Agreement, it is reasonable to infer that no such conversation ever occurred. Bar Counsel argues that the hearing judge correctly determined that silence alone was insufficient for Dr. Greenberg to have authorized the Attorney-Client Agreement.

         We conclude that the hearing judge did not clearly err to the extent that he found that members who owned a majority of Solomons One did not expressly authorize Donnelly to execute the Attorney-Client Agreement. That conclusion, however, does not end our inquiry. We must determine whether the hearing judge was correct in concluding that the Attorney-Client Agreement was not accepted by virtue of the circumstance that, after executing the agreement, Donnelly provided notice of the agreement to Dr. Greenberg, who received the benefit of Donnelly's legal services, and did not object to the Attorney-Client Agreement. Donnelly contends that, on August 23, 2012, he sent to Dr. Greenberg a cover letter describing the Attorney-Client Agreement. Donnelly argues that, upon receipt of the August 23, 2012 letter, Dr. Greenberg did not respond or object in any way to the Attorney-Client Agreement. Donnelly asserts that Solomons One-and, by extension, its members, including Dr. Greenberg-benefitted from Donnelly's legal services in the Pier Case.

         It is undisputed that Donnelly and Steffen were in favor of the Attorney-Client Agreement, and that they signed the agreement on August 21, 2012. For there to have been a majority, at least one of the Greenbergs (who jointly owned 48 1/3% of Solomons One) and/or Erickson-File (who owned 2 1/3%) must also have been in favor of the Attorney-Client Agreement. At the disciplinary hearing, the Greenbergs, Erickson-File, and Guenther testified that they did not authorize Donnelly to sign the Attorney-Client Agreement, and the hearing judge found their testimony on this point to be more credible than Donnelly's witnesses. These circumstances compel the conclusion that the hearing judge did not clearly err to the extent that he found that members who owned a majority of Solomons One did not expressly permit Donnelly to execute the Attorney-Client Agreement. A hearing judge does not clearly err in finding a fact where "there is any competent evidence to support the" finding of fact. Attorney Grievance Comm'n v. Merkle, 440 Md. 609, 633, 103 A.3d 679, 693 (2014) (citation omitted).

         Although Donnelly was not explicitly authorized to sign the Attorney-Client Agreement, it does not necessarily follow that Dr. Greenberg did not later accept the Attorney-Client Agreement. If Solomons One's members received the signed Attorney-Client Agreement or notice of the agreement, did not object, and received the benefit of Donnelly's offer of legal services, then Solomons One's members' silence constituted acceptance of ...


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