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Attorney Grievance Commission of Maryland v. Maldonado

Court of Appeals of Maryland

March 6, 2019

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MELINDA MALDONADO

          Argued: November 5, 2018

          Circuit Court for Montgomery County Case No. 433322-V

          Barbera, C.J. Greene, McDonald, Watts, Hotten, Getty, Adkins, Sally D., (Senior Judge, Specially Assigned) JJ.

          OPINION

          GETTY, J.

         This attorney discipline case involves conduct of an out-of-state attorney during her representation of a Maryland resident in a toxic mold case. While representing her client, the attorney called her client's doctor, held herself out as a medical doctor, and sought the alteration of her client's medical records. When the attorney was unable to reach the doctor, the attorney repeatedly called the doctor's office over the course of two days and eventually made unprofessional comments about the doctor. Furthermore, while only barred in the District of Columbia, and without a pro hac vice sponsor, the attorney drafted and filed various pleadings on behalf of her client before Maryland courts. Finally, this attorney failed to obtain the trial transcripts required for her client's appeal in the Maryland Court of Special Appeals which resulted in the dismissal of that appeal. For the reasons explained below, we hold that this attorney's conduct merits disbarment.

         BACKGROUND

         Procedural Context

         On May 23, 2017, the Attorney Grievance Commission of Maryland, acting through Bar Counsel filed a Petition for Disciplinary or Remedial Action ("Petition") with the Court of Appeals alleging that Melinda Maldonado ("Ms. Maldonado") had violated the Maryland Lawyers' Rules of Professional Conduct ("MLRPC" or "Rules").[1] See Md. Rule 19-721. Although not admitted to practice in Maryland, Ms. Maldonado is subject to the disciplinary authority of Maryland pursuant to Rule 8.5(a)(2). The Petition alleged that Ms. Maldonado, during her representation of Gladys Duren ("Ms. Duren"), violated the following Rules: 1.1 (Competence); 4.1 (Truthfulness in Statements to Others); 4.4 (Respect for Rights of Third Persons); 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of Law); 8.1 (Bar Admission and Disciplinary Matters); and 8.4 (Misconduct).[2]

         We designated Judge Deborah L. Dwyer ("the hearing judge") of the Circuit Court for Montgomery County by Order dated June 1, 2017 to conduct a hearing concerning the alleged violations and to provide findings of fact and recommended conclusions of law. See Md. Rule 19-722(a). The Clerk of the Circuit Court for Montgomery County ("Clerk") issued a summons to be served upon Ms. Maldonado, and on June 19, 2017, Bar Counsel emailed the petition, transmittal order, and summons to Ms. Maldonado and asked if she would consent to electronic service of process. Ms. Maldonado never responded.

         Bar Counsel retained a process server to serve Ms. Maldonado. The process server was unsuccessful. As a result, the Clerk reissued the summons. Bar Counsel again emailed the petition, transmittal order, and summons on August 29, 2017 to Ms. Maldonado to request electronic service of process. Ms. Maldonado responded to Bar Counsel's request two days later and stated that she refused to accept electronic service of process. The process server also attempted service upon Ms. Maldonado again in person and failed.

         As a result of these interactions, Bar Counsel filed a Motion to Permit Service Upon Employee Designated by the Client Protection Fund of the Bar of Maryland pursuant to Maryland Rule 19-723(b). Bar Counsel was successful in serving the Executive Director of the Client Protection Fund of the Bar of Maryland.

         Ms. Maldonado failed to file a timely answer, causing Bar Counsel to file a request for an order of default. Eventually, Ms. Maldonado retained Joseph A. Rillotta, Esquire and Margaret E. Matavich, Esquire who filed an opposition to the motion for order of default. In response, Bar Counsel consented to an extension of time for Ms. Maldonado to file an answer. Ms. Maldonado filed her answer on December 19, 2017, and Bar Counsel withdrew its motion.

         The hearing judge issued a scheduling order setting forth deadlines to propound and to complete discovery. Bar Counsel promptly served discovery within the times set forth in the scheduling order. During this time, Ms. Maldonado sought to continue the discovery deadlines because she wished to proceed with new counsel. Bar Counsel opposed any continuation of this matter noting that Ms. Maldonado had already delayed the proceeding by evading service of process and failing to file a timely answer. Ms. Maldonado's motion was ultimately denied.

         Mr. Rillotta and Ms. Matavich filed a Motion to Withdraw as Counsel pursuant to Maryland Rule 2-132(b). Mark G. Chalpin, Esquire entered his appearance on behalf of Ms. Maldonado. A few weeks later, Mr. Chalpin moved to withdraw his appearance due to "irreconcilable differences" with Ms. Maldonado. Ms. Maldonado, now proceeding pro se, filed a Motion to Reconsider the Court's Order regarding the scheduling order. This motion was also denied.

         On March 22, 2018, Bar Counsel filed a Motion for Sanctions based on Ms. Maldonado's failure to provide responses to Bar Counsel's Interrogatories, Requests for Production of Documents, and Requests for Admissions of Fact and Genuineness of Documents. Ms. Maldonado, now represented by William C. Brennan, Esquire, and Nicolas G. Madiou, Esquire, filed an Opposition to Petitioner's Motion for Sanctions. Ms. Maldonado stated that her failure to timely answer discovery was due to illness and issues stemming from changes in representation. The hearing judge held the motion sub curia to give the parties additional time to resolve their discovery dispute. On April 1, Ms. Maldonado provided Answers to Petitioner's Interrogatories; on April 10, she provided responses to Bar Counsel's Requests for Admissions of Fact and Genuineness of Law; and on April 20, Ms. Maldonado provided a partial response to Bar Counsel's Request for Production of Documents. As a result of her incomplete discovery responses, the hearing judge granted in part and denied in part Bar Counsel's Motion for Sanctions. The hearing judge precluded Ms. Maldonado from introducing any documents at trial which were not produced to Bar Counsel during discovery.

         The evidentiary hearing took place over the course of two days on April 30 and May 1. At the evidentiary hearing, Bar Counsel and Ms. Maldonado presented evidence and several witnesses testified. The hearing judge submitted her findings of fact and conclusions of law by a written opinion to this Court. In her recommended conclusions of law, the hearing judge found by clear and convincing evidence that Ms. Maldonado violated Rule 1.1, Rule 4.1, Rule 4.4, Rule 5.5, and Rule 8.4 (a), (c), and (d).

         On August 7, 2018, Ms. Maldonado filed a motion in this Court titled as follows:

Respondent's Motion to Dismiss this Prolonged (Almost Three Years) Unethical and Immoral Defamation, Harassment & Interference with Underlying Toxic Mold Litigation by Petitioner, Attorney Grievance Commission (AGC) of Maryland. Alternatively, Respondent Motion for a Rehearing due to Egregious, Ineffective Assistance of Counsel by William C. Brennan & Nicholas Madiou & Due to Bias of Judge Debra Dwyer, Motions for a Change of Venue to Anne Arundel County, Judge Ronald Silkworth (due to County of Original Jurisdiction of Underlying Toxic Mold Case, Judge Silkworth's Familiarity w/Issue of Petitioner's, AGC's, Pattern & Practice of Defaming & Harassing Respondents while Aiding & Abetting Defense Law Firms Representing Real Estate Companies who File Grievances Against Opposing, Plaintiffs' Counsel (Respondents) to Disrupt Underlying Litigation all in the Name of Money.

("First Motion"). Two days later, Ms. Maldonado filed a second motion entitled:

Pending this Honorable Court's Review of Respondent's Definitive Submissions on 8-7-18: Motion to Dismiss, and, Alternatively, Request for a Rehearing due to Ineffective Assistance of Counsel & Biased/Legal Errors/Incorrect Findings of Facts Based on False Hearsay by Judge Dwyer; Motion for Change of Venue to Anne Arundel County Before Judge Ronald Silkworth Given Original Jurisdiction of Underlying Toxic Mold Case and Judge Silkworth's Experience with AGC-Respondent Hereby Inherently Submits this Motion to Extend Time to File Exceptions Document & Opposition to Motion for Sanctions & Will be Submitting in Turn Respondent's Motion for Sanctions Against the AGC/Bar Counsel & a Supplement to Motion to Dismiss.

("Second Motion"). As to her First Motion, this Court ordered action deferred pending oral argument. This Court granted her Second Motion to the extent that this Court permitted Ms. Maldonado to file any exceptions on or before September 5, 2018.

         Bar Counsel took no exceptions and Ms. Maldonado filed numerous exceptions to the hearing judge's findings of fact and recommended conclusions of law. Ms. Maldonado filed another motion to dismiss, entitled Respondent's Motion to Dismiss Part 2: ("Third Motion") on October 5, 2018 and filed an amended motion to dismiss, also entitled Respondent's Motion to Dismiss Part 2: ("Fourth Motion") two days later. We heard oral argument in this matter on November 5, 2018.

         Facts

         We begin with a summary of the hearing judge's factual findings. Ms. Maldonado has never been barred in Maryland. She was admitted to the Bar of the District of Columbia on November 14, 2003. Since then, she has maintained a law office in Arlington, Virginia and has focused on representing personal injury clients, specifically the practice of toxic mold litigation. This matter involves multiple instances of misconduct stemming from a toxic tort action filed in Maryland in the Circuit Court for Anne Arundel County.

         Ms. Maldonado's Unauthorized Practice of Law

         In the summer of 2013, David Haynes, Esquire, referred Ms. Duren, a Maryland resident, to Ms. Maldonado. Ms. Duren sought to sue her former landlord, Home Properties Resident Services, Inc. ("Home Properties"), because she alleged she became ill from toxic mold infestation in her rental townhome in Glen Burnie, Maryland. After meeting with Ms. Duren, Ms. Maldonado drafted a complaint. With Ms. Maldonado's assistance, Ms. Duren signed the complaint, indicated she was proceeding pro se, and filed the complaint with the Circuit Court for Anne Arundel County on April 24, 2014. The case was assigned case number 02-C-14-187157. Ms. Maldonado also filled out the case information report for Ms. Duren which Ms. Duren also signed and filed pro se. Ms. Maldonado drafted an amended complaint that Ms. Duren signed and filed. The amended complaint continued to indicate that Ms. Duren was proceeding pro se.

         Ms. Duren and Ms. Maldonado retained Christopher T. Nace, Esquire, and Paulson & Nace, PPLC to assist in the lawsuit. The retainer agreement between Ms. Maldonado, Ms. Duren, and Mr. Nace stated:

This retainer agreement does not cover any appeals which may need to be filed on behalf of us as a consequence of an adverse event in my case. If Paulson & Nace, PPLC agrees to prosecute such an appeal on my behalf, then a new retainer agreement may be drawn up.

         The retainer agreement stated further, "[i]f Paulson & Nace, PPLC comes to the conclusion that the case is non-meritorious or that it would be economically unsound to proceed, Paulson & Nace, PPLC reserves the right to seek its withdrawal."

         Mr. Nace filed a motion for special admission pro hac vice on Ms. Maldonado's behalf. The motion was granted and the order granting the motion specifically stated, "the presence of Maryland counsel, Christopher T. Nace, Esquire, is not waived, and Maryland counsel must appear at all proceedings and co-sign all pleadings and motions."

         James S. Liskow, Esquire, and Emily F. Belanger, Esquire, of DeCaro, Doran, Siciliano, Gallagher & DeBlasis, LLP represented Home Properties. A jury trial took place between July 28-30, 2015. At the end of Ms. Duren's case, Mr. Liskow moved for a directed verdict. The circuit court granted the motion and entered judgment in favor of Home Properties.

         After the circuit court trial, Mr. Nace filed a notice of appeal with the circuit court pursuant to Maryland Rule 8-201(a) to preserve Ms. Duren's right of appeal. Shortly after the notice of appeal, Mr. Nace informed Ms. Duren that he and his firm would not be entering into a new agreement for services related to the appeal and would be withdrawing as counsel of record. Ms. Duren consented.

         Mr. Nace informed Ms. Maldonado about his withdrawal from the appeal through email and stated: "I don't believe that you can appear at the Court of Special Appeals, but I am not certain." Ms. Maldonado responded and stated, "Yes, agreed. Maryland [c]ounsel is required." However, after Mr. Nace withdrew, Ms. Maldonado continued to work on the case without a pro hac vice sponsor. Ms. Maldonado drafted pleadings and briefs for Ms. Duren to sign pro se and filed those pleadings in the Court of Special Appeals on behalf of Ms. Duren.

         Eventually, Home Properties moved to dismiss the appeal pursuant to Maryland Rule 8-602 based on Ms. Duren's failure to obtain the trial transcript pursuant to Maryland Rule 8-413(a)(2). The Court of Special Appeals denied the motion without prejudice and ordered Ms. Duren to "take all steps necessary to cause all transcripts necessary for this Appeal to be filed in the Circuit Court for Anne Arundel County on or before February 1, 2016." The transcripts were never filed. Home Properties filed a second Motion to Dismiss which the Court of Special Appeals granted.

         Ms. Maldonado drafted Appellant's Motion for Reconsideration of: Dismissal, Automatic Retrial, Extension of Time as Court Deems Reasonable & Waiver of Fees Given Severe Disability ("Motion for Reconsideration"). Ms. Maldonado typed Ms. Duren's electronic signature with Ms. Duren's consent and electronically filed the document with Ms. Duren's email address. The Court of Special Appeals denied the Motion for Reconsideration and issued a Mandate.

         Next, Ms. Maldonado drafted a Petition for Writ of Certiorari for Ms. Duren. Ms. Maldonado typed Ms. Duren's electronic signature and electronically filed the Petition for Writ of Certiorari using Ms. Duren's email address on April 27, 2016 with this Court. The Petition stated Ms. Duren was proceeding pro se. Ms. Maldonado also drafted the Certificate of Word Count and Compliance for Ms. Duren, typed Ms. Duren's electronic signature, and electronically filed the document using Ms. Duren's email address. Again, on June 14 and June 19, Ms. Maldonado drafted, typed Ms. Duren's electronic signature, and electronically filed two documents entitled Pro Se Petitioner's Reply-Part 1-to Respondents' Answer to Petition for Writ of Certiorari and Pro Se Petitioner's Reply-Part 2-to Respondent's Answer to Petition for Writ of Certiorari.

         This Court denied the Petition for Writ of Certiorari as untimely filed. Ms. Maldonado then drafted Pro Se & Severely Disabled Petitioner's Motion for Reconsideration of Dismissal & Demand to Reinstate Case due to Early Not Late Filing, typed Ms. Duren's electronic signature, and electronically filed the document using Ms. Duren's email address. We denied the motion.

         After the denial, Ms. Maldonado drafted a Petition for Writ of Certiorari ("Petition") to the Supreme Court of the United States. Again, the Petition stated Ms. Duren was proceeding pro se and Ms. Duren signed the Petition. Ms. Duren consented to the entry of appearances of Ms. Maldonado and Relinda Louisy, Esquire, as her attorneys before the Supreme Court. Ultimately, the Supreme Court issued an Order denying the Petition for Writ of Certiorari.

         Ms. Maldonado's Communications with the Office of John Wiley, M.D.

         On February 9, 2015, Emily Belanger, Esquire, an attorney for Home Properties, issued a subpoena to Dr. John Wiley, a pulmonologist who treated Ms. Duren at Baltimore Washington Medical Center ("BWMC"). Ms. Maldonado called Dr. Wiley's office on July 21, 2015 at 10:13 a.m. Dr. Wiley's medical assistant, Keisha Lipscomb, answered. Ms. Maldonado identified herself to Ms. Lipscomb as "Doctor Maldonado" and asked to speak with Dr. Wiley. Ms. Maldonado further stated she had information that Ms. Duren was exposed to toxic mold and that she needed to tell Dr. Wiley about the toxic mold exposure so it could be added to Ms. Duren's records. Ms. Lipscomb stated that Dr. Wiley was unavailable to speak but that she would take a message for Dr. Wiley.

         Ms. Maldonado called Dr. Wiley's office four more times that day, at 10:48 a.m., 10:55 a.m., 11:31 a.m., and 11:38 a.m. Ms. Maldonado was unable to reach Dr. Wiley and grew increasingly frustrated. Eventually, Ms. Maldonado revealed that she was Ms. Duren's attorney and that she needed documentation from Dr. Wiley immediately for a court filing.

At 11:01 a.m., Ms. Lipscomb made the following entry in Ms. Duren's patient log:
DR MELINDA MALDONADO called. . . . She would like to you [sic] call her, because she needs you to change your hospital note since you noted that the patient has allergies when in fact she was exposed to mold and needs to educate you on this.
[S]he would like you to call asap since she has to file paperwork within 15 min. [S]tates she is a physician and a lawyer?

         Ms. Lipscomb testified she was confused by Ms. Maldonado's phone calls and was unsure how to answer them. Ms. Lipscomb's supervisor eventually instructed her not to speak with Ms. Maldonado. The calls were transferred to the office manager, Michelle Andrade. Ms. Lipscomb reviewed Ms. Duren's medical chart to determine if she could determine why Ms. Maldonado was repeatedly calling. Ms. Lipscomb found the subpoena from Ms. Belanger, whom she believed was Ms. Duren's attorney, in the file.

         At 11:18 a.m., Dr. Elizabeth McIlmoyle made the following entry in Ms. Duren's patient log:

This person called 4 x so far today, asking the above [as described in Ms. Lipscomb's note]. She spoke w/ [M]ichelle, [K]esha and [A]ndrea. Kesha called the [patient's] lawyer (who we have sent records to before w/signed release and whose info is in the chart) ...

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