Attorney Grievance Commission v. Michael Bowen Mitchell, Jr., Misc. Docket AG No. 35,
September Term 2014
ATTORNEY MISCONDUCT — DISCIPLINE — DISBARMENT — Respondent,
Michael Bowen Mitchell, Jr., violated Maryland Lawyers’ Rules of Professional Conduct
MLRPC 1.1; 1.2(a); 1.3; 1.4(a) and (b); 3.2; 8.1(a) and (b); and 8.4(c) and (d). These
violations stemmed from Respondent’s failure to represent a client competently and
diligently in two civil actions and Respondent’s dishonest conduct toward his client and
Bar Counsel.
Circuit Court for Baltimore City
Case No. 24-C-14-005017
Argued: September 29, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 35
September Term, 2014
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
MICHAEL BOWEN MITCHELL, JR.
Barbera, C.J.
Battaglia
Greene
Adkins
McDonald
Harrell, Jr., Glenn T., (Retired,
Specially Assigned)
Cathell, Dale R., (Retired,
Specially Assigned),
JJ.
Opinion by Barbera, C.J.
Filed: November 24, 2015
On August 7, 2014, Petitioner, the Attorney Grievance Commission of Maryland
(“the Commission”), filed in this Court a Petition for Disciplinary or Remedial Action (“the
Petition”) against Respondent, Michael Bowen Mitchell, Jr. The Petition charged
Respondent with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
1.1 (competence); 1.2 (scope of representation and allocation of authority between client
and lawyer); 1.3 (diligence); 1.4 (communication); 3.2 (expediting litigation); 8.1 (bar
admission and disciplinary matters); and 8.4 (misconduct). These violations stemmed from
Respondent’s representation of William J. Kolodner in two civil actions and his subsequent
correspondence with Bar Counsel. By Order dated August 26, 2014, this Court designated
the Honorable Lawrence P. Fletcher-Hill (“the hearing judge”) to conduct a hearing and
make findings of fact and conclusions of law.
On October 23, 2014, Petitioner served Respondent with the Petition, a Writ of
Summons, and the Transmittal Order of the Court of Appeals. Respondent did not respond
within fifteen days as required by Maryland Rule 16-754(a), and Petitioner therefore filed
a Motion for Order of Default on November 25, 2014, in the Circuit Court for Baltimore
City. Respondent similarly did not respond to that motion, and the hearing judge
consequently entered an Order of Default on December 19, 2014. Respondent did not
move to vacate that Order.
Also on October 23, 2014, Petitioner served Petitioner’s First Set of Interrogatories;
a Request for Production of Documents, Electronically Stored Information and Property;
and a Request for Admissions of Facts and Genuineness of Documents. Respondent failed
to respond to those discovery requests. The hearing judge held a hearing on March 10,
2015, at which Respondent did not appear. At that hearing, Petitioner submitted as
evidence its Request for Admissions and Proposed Findings of Fact and Conclusions of
Law. On April 1, 2015, the hearing judge issued a Statement of Findings of Fact and
Conclusions of Law, in which he concluded by clear and convincing evidence that
Respondent violated MLRPC 1.1; 1.2(a); 1.3; 1.4(a) and (b); 3.2; 8.1(a) and (b); and 8.4(c)
and (d). Neither Petitioner nor Respondent filed exceptions to the hearing judge’s findings
of fact or conclusions of law. Respondent did not appear before us for oral argument as to
sanction. We issued a Per Curiam Order on September 29, 2015, disbarring Respondent
immediately from the practice of law. We now explain the reasons for that Order.
I.
As a consequence of Respondent’s default, the hearing judge deemed established
the averments in the Petition. See Md. Rules 16-754(c), 2-613(f), 2-323(e). The hearing
judge likewise deemed admitted the facts alleged in the Request for Admissions of Fact
and Genuineness of Documents. See Md. Rules 16-756, 2-424(b). Upon those submissions
and Petitioner’s Proposed Findings of Fact and Conclusions of Law, which the hearing
judge adopted essentially verbatim, the hearing judge made the following findings of fact
by clear and convincing evidence.
Respondent was admitted to the Bar of the Court of Appeals of Maryland on
December 15, 1999, and maintained a law office in Baltimore City, Maryland. In 2009,
William J. Kolodner retained Respondent to represent him in two civil actions. The first
action alleged that Levindale Hebrew Geriatric Center and Hospital (“Levindale”) and
certain employees at that facility committed malpractice and assault/battery against Mr.
2
Kolodner in 2008 (“the Levindale action”). Respondent filed a complaint in the Circuit
Court for Baltimore City on April 15, 2011, well past the one-year statute of limitations for
assault claims. See Md. Code (1989, 2013 Repl. Vol.), § 5-105 of the Courts & Judicial
Proceedings Article.
On August 15, 2011, Respondent spoke to Mr. Kolodner via telephone about the
Levindale action, during which Respondent advised Mr. Kolodner to dismiss the litigation
for lack of expert medical testimony. Mr. Kolodner did not accept that advice and instead
directed Respondent to file an amended complaint that eliminated any medical malpractice
claims. Respondent agreed to do so but did not file an amended complaint. Respondent
failed to inform Mr. Kolodner that he did not intend to follow Mr. Kolodner’s instructions.
Respondent then stipulated to dismiss the entire case with prejudice against all defendants
on August 31, 2011, and failed to inform Mr. Kolodner of the dismissal.
On September 29, 2011, Mr. Kolodner checked court records and discovered that
the Levindale action had been dismissed. Mr. Kolodner informed Respondent of his
discovery that day, and Respondent promised to schedule a conference call for the
following day to discuss the case. Respondent, however, did not arrange the conference
call and failed to explain the status of the case to Mr. Kolodner. In addition, Respondent
claimed during the September 29, 2011, phone call that he had uncovered a “little known
law” that would allow him to re-file the lawsuit. Respondent did not inform Mr. Kolodner
what that law was, and nothing ever came of Respondent’s alleged discovery.
The second action involved a claim that Mr. Kolodner’s health insurer, Blue Cross
Blue Shield, improperly refused to reimburse him for costs incurred during his stay at
3
Levindale (“the insurance action”). Respondent filed a complaint against “Blue Cross and
Blue Shield Association” in the Circuit Court for Baltimore City on July 25, 2011. The
Circuit Court for Baltimore City dismissed the insurance action on January 10, 2012,
because Respondent had not obtained service on Blue Cross Blue Shield. See Md. Rule 2-
507. Respondent took no action to prevent the dismissal and did not ask the court to
reinstate the case. Respondent further failed to inform Mr. Kolodner that this lawsuit had
been dismissed and the reason therefor. Respondent failed to communicate with Mr.
Kolodner, respond to his requests for information, or keep him informed regarding the
status of his cases throughout the course of the representation.
Mr. Kolodner submitted a written complaint against Respondent to the Commission
on May 4, 2012. Bar Counsel notified Respondent of the complaint. Respondent sent a
reply to Bar Counsel on June 5, 2012, claiming that he had named the wrong defendant in
the insurance action but had filed an amended complaint and would serve the resident agent
with the summons upon receipt from the Clerk. Respondent evidently attempted to file an
amended complaint, but the Circuit Court for Baltimore City returned the amended
complaint to Respondent on June 16, 2012, with the time/date stamp crossed out because
the case had been dismissed on January 10, 2012. Respondent failed to inform Bar Counsel
that the amended complaint was not accepted and he accordingly would not be serving the
resident agent. Respondent failed to disclose facts necessary to correct Bar Counsel’s
misapprehension that this litigation was ongoing. Based on Respondent’s representations
in his June 5, 2012, letter to Bar Counsel, and his subsequent failure to correct the
information contained therein, Bar Counsel decided not to take action on Mr. Kolodner’s
4
May 4, 2012, complaint.
Mr. Kolodner submitted another complaint to Bar Counsel on August 14, 2013, in
which he contended that Respondent had not filed an amended complaint and had deceived
the Commission in that regard. Upon receiving notification of Mr. Kolodner’s additional
complaint, Respondent called Assistant Bar Counsel on August 29, 2013, again
maintaining that he had filed an amended complaint and would forward a time/date
stamped copy. On September 19, 2013, Bar Counsel received a letter from Respondent
enclosing a purported amended complaint against Blue Cross Blue Shield; the document
did not show marks crossing over the court’s time/date stamp. Respondent’s letter did not
inform Bar Counsel either that the amended complaint had not been accepted for filing or
that the case had been dismissed in January 2012. The hearing judge found that Respondent
made inconsistent, false, and misleading statements to Petitioner’s investigator during
Petitioner’s investigation of Mr. Kolodner’s complaint.
Based upon the above findings, the hearing judge concluded by clear and convincing
evidence that Respondent’s conduct violated MLRPC 1.1; 1.2(a); 1.3; 1.4; 3.2; 8.1(a) and
(b); and 8.4(c) and (d).
II.
“This Court has original and complete jurisdiction over attorney discipline
proceedings in Maryland.” Attorney Grievance Comm’n v. Barton, 442 Md. 91, 119 (2015)
(quoting Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 28 (2013)). Because neither
Petitioner nor Respondent excepted to the hearing judge’s findings of fact, we shall treat
those facts as established. See Md. Rule 16-759(b)(2)(A) (“If no exceptions are filed, the
5
Court may treat the findings of fact as established for the purpose of determining
appropriate sanctions, if any.”). We review de novo the hearing judge’s conclusions of
law. Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 717 (2014).
MLRPC 1.1
MLRPC 1.1 provides:
A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.
The hearing judge concluded that Respondent violated MLRPC 1.1 by failing to file timely
the complaint in the Levindale action; name the proper defendant in the insurance action
and obtain service of process on that defendant; file timely the amended complaint in the
insurance action and prevent that action from being dismissed for lack of jurisdiction before
the January 2012 dismissal and thereafter; and keep Mr. Kolodner informed about the
dismissals, thereby precluding Mr. Kolodner from seeking another attorney who better
would protect his interests.
An attorney violates MLRPC 1.1 when he or she fails to act with the requisite
preparation and thoroughness in representing a client. See, e.g., Attorney Grievance
Comm’n v. Gage-Cohen, 440 Md. 191, 197 (2014). An attorney also violates this Rule
when the attorney “fails to act or acts in an untimely manner, resulting in harm to his or
her client.” Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012); see also
Attorney Grievance Comm’n v. Haley, 443 Md. 657, 668 (2015) (concluding that the
respondent violated MLRPC 1.1 by failing “to prepare and submit any pleadings or take
any action in furtherance of [his client’s] case”).
6
We agree with the hearing judge that Respondent’s failure to file a complaint in the
Levindale action before the statute of limitations expired on the assault/battery claim
demonstrated a lack of competence in violation of MLRPC 1.1. Attorney Grievance
Comm’n v. Bleecker, 414 Md. 147, 170-72 (2010) (concluding that the respondent violated
MLRPC 1.1 by failing to file a complaint on behalf of his client within the statute of
limitations). Respondent also violated MLRPC 1.1 in connection with Mr. Kolodner’s
insurance action. Although naming the wrong defendant in the initial complaint, in itself,
may not rise to the level of an MLRPC 1.1 violation, Respondent’s failure to realize and
correct the error before the case was dismissed six months thereafter demonstrates
incompetence in violation of MLRPC 1.1. Respondent similarly violated MLRPC 1.1 by
failing to obtain service of process on the correct defendant, take any action to prevent the
dismissal of the case, and attempt to have the case reinstated. See Attorney Grievance
Comm’n v. Sperling, 432 Md. 471, 491 (2013) (concluding that the respondent violated
MLRPC 1.1 by failing to attempt to have his client’s case reinstated once it was dismissed
for failure to serve the defendant).
MLRPC 1.2
MLRPC 1.2 provides, in pertinent part:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide by a client’s
decisions concerning the objectives of the representation and, when
appropriate, shall consult with the client as to the means by which they
are to be pursued. A lawyer may take such action on behalf of the client
as is impliedly authorized to carry out the representation. A lawyer shall
abide by a client’s decision whether to settle a matter.
The hearing judge concluded that Respondent violated MLRPC 1.2(a) by failing to follow
7
Mr. Kolodner’s directions to file an amended complaint in the Levindale action and instead
stipulating to the dismissal of the entire case with prejudice. The hearing judge reasoned
that this conduct constituted a failure to abide by the client’s explicit directions and further
constituted an action outside of Respondent’s authority.
An attorney violates MLRPC 1.2(a) by failing to follow the client’s instructions
regarding a matter. See Haley, 443 Md. at 669 (concluding that the respondent violated
MLRPC 1.2(a) by failing to follow the client’s instructions). An attorney also violates
MLRPC 1.2(a) by “fail[ing] to inform a client of the status of his or her case, thereby
denying the client the ability to make informed decisions.” Attorney Grievance Comm’n
v. Hamilton, 444 Md. 163, 182 (2015). For much the same reasons, the failure to take
action on a case, resulting in its dismissal, violates MLRPC 1.2(a). See Sperling, 432 Md.
at 492-93 (concluding that the respondent’s failing to inform the client that her case was
dismissed for failure to serve the defendant was a violation of MLRPC 1.2(a) because the
client lost the “ability to make an informed decision as to the objectives of the
representation”); see also Brown, 426 Md. at 320 (holding that the respondent violated
MLRPC 1.2(a) where his two clients’ “cases were dismissed for lack of prosecution due to
Respondent’s inaction” and the respondent failed to inform his clients of the dismissals);
Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 220 (2006) (holding that the
respondent’s inaction, resulting in the dismissal of his client’s case, violated MLRPC 1.2
because the respondent failed to follow the client’s instruction to pursue the case and
inform her of the status of the case).
The hearing judge correctly concluded that Respondent violated MLRPC 1.2(a) by
8
agreeing to comply with Mr. Kolodner’s request to file an amended complaint in the
Levindale action but instead stipulating to its dismissal with prejudice. That conduct was
in direct contravention of Mr. Kolodner’s explicit directions. See Haley, 443 Md. at 669.
Respondent’s failure to take action in the insurance case, and to inform Mr. Kolodner of
its dismissal, also violated MLRPC 1.2(a) because it deprived Mr. Kolodner of the “ability
to make an informed decision as to the objectives of the representation.” Sperling, 432
Md. at 492; Reinhardt, 391 Md. at 220.
MLRPC 1.3
MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.” The hearing judge concluded that Respondent did
not act with reasonable diligence because he did not file the Levindale action until two
years after he was retained by Mr. Kolodner, which was beyond the statute of limitations
for the assault/battery claim; he failed to advance Mr. Kolodner’s interests by stipulating
to the dismissal of the Levindale action without Mr. Kolodner’s consent; he named the
wrong defendant in the insurance action, allowing the court to dismiss that lawsuit for lack
of jurisdiction; he failed to ask the court to reinstate the insurance action; and he failed to
inform Mr. Kolodner of the dismissal and otherwise keep the client informed as to the
status of the two cases.
We agree with the hearing judge that Respondent violated MLRPC 1.3 by filing a
complaint in the Levindale action two years after he was retained by Mr. Kolodner, thereby
allowing the statute of limitations on the assault/battery claim to expire. See Attorney
Grievance Comm’n v. Lee, 393 Md. 385, 403 (2006) (concluding that the respondent
9
violated MLRPC 1.3 by failing to review the client’s case documents until nearly two years
after the respondent was retained and to prepare written pleadings as promised); see also
Attorney Grievance Comm’n v. Davy, 435 Md. 674, 699-700 (2013) (concluding that the
respondent violated MLRPC 1.3 by not filing a complaint until 9:11 p.m. on the day the
statute of limitations expired, failing to correct the deficiency that caused the court to reject
it, and failing to notify the client that the complaint had been rejected).
Respondent further violated MLRPC 1.3 by failing to serve the correct defendant in
the insurance case and thereafter failing to take any action to prevent that case from being
dismissed. See Attorney Grievance Comm’n v. McCulloch, 404 Md. 388, 398 (2008)
(holding that the respondent violated MLRPC 1.3 by failing to secure service of process
on the defendant or take action to prevent the court from dismissing the case for lack of
prosecution). Respondent, moreover, waited five months after the insurance case was
dismissed before attempting to file an amended complaint, doing so only after Mr.
Kolodner had submitted a complaint to the Commission. This conduct likewise
demonstrates a lack of diligence in violation of MLRPC 1.3. See Attorney Grievance
Comm’n v. Shapiro, 441 Md. 367, 383 (2015) (“The decision to do nothing promptly when
an attorney learns the case was dismissed violates MLRPC 1.3.”) (alterations and internal
quotation marks omitted).
MLRPC 1.4
MLRPC 1.4 provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client's informed consent, as defined in Rule
10
1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
(4) consult with the client about any relevant limitation on the
lawyer’s conduct when the lawyer knows that the client expects
assistance not permitted by the Maryland Lawyers’ Rules of
Professional Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
The hearing judge concluded that Respondent failed to communicate adequately with Mr.
Kolodner, respond to Mr. Kolodner’s requests for information regarding his cases, and
keep Mr. Kolodner informed regarding the status of those matters. The hearing judge noted
that Mr. Kolodner only came to know that Respondent had stipulated to the dismissal of
the Levindale action by personally checking court records. Moreover, the hearing judge
concluded that Respondent violated MLRPC 1.4 by giving Mr. Kolodner false information
when confronted with that discovery.
The failure to communicate with a client about the status of a matter, particularly
the failure to inform a client that his or her case was dismissed, violates MLRPC 1.4.
Attorney Grievance Comm’n v. Shuler, 443 Md. 494, 505 (2015) (concluding that the
respondent violated MLRPC 1.4 by neglecting to inform the client that he had not prevailed
in his civil appeal); Shapiro, 441 Md. at 385 (concluding that the respondent violated
MLRPC 1.4 by failing to inform a client that her claim had been dismissed and continuing
to misrepresent the status of the case over several years); Davy, 435 Md. at 701 (concluding
that the respondent violated MLRPC 1.4 by failing to notify the client that her complaint
had been rejected by the court).
We agree with the hearing judge that Respondent violated MLRPC 1.4 in a myriad
11
of respects. Respondent failed to inform Mr. Kolodner that he did not intend to follow Mr.
Kolodner’s instruction to file an amended complaint in the Levindale action. Thereafter,
Respondent failed to inform Mr. Kolodner that he stipulated to the dismissal of that case
with prejudice, leaving Mr. Kolodner to discover that information himself. See Sperling,
432 Md. at 494 (concluding that the respondent violated MLRPC 1.4 by failing to inform
the client that the case was dismissed and misrepresenting that it was being pursued).
Moreover, when Mr. Kolodner confronted Respondent with his discovery, Respondent
provided him with misleading information regarding Respondent’s ability to re-file the
action based upon an alleged “little known law.” See Davy, 435 Md. at 701 (concluding
that the respondent violated MLRPC 1.4 by providing false information to a client about
the availability of a summons). Respondent failed to schedule the promised conference
call with Mr. Kolodner regarding the Levindale action and, as a result, never explained the
status of that case to his client. See Attorney Grievance Comm’n v. Thomas, 440 Md. 523,
553 (2014) (stating that an attorney who fails to keep a client informed regarding the status
of the client’s cases, particularly where the client attempts repeatedly to speak with the
attorney, violates MLRPC 1.4). Respondent also violated MLRPC 1.4 by failing to notify
Mr. Kolodner that the insurance action had been dismissed because of Respondent’s failure
to obtain service of process on Blue Cross Blue Shield. See Brown, 426 Md. at 322
(concluding that the respondent violated MLRPC 1.4 by failing to inform the client that
the case had been dismissed because the respondent had failed to serve the defendants
timely).
MLRPC 3.2
12
Under MLRPC 3.2, “[a] lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.” The hearing judge concluded that Respondent,
who filed the insurance action on July 25, 2011, violated MLRPC 3.2 by failing to obtain
service on Blue Cross Blue Shield prior to January 10, 2012, thereby causing that action to
be dismissed. The hearing judge further concluded that Respondent violated MLRPC 3.2
by failing to take any action to reinstate the lawsuit as of June 16, 2012, or to attempt to
obtain proper service on the defendant. Although Respondent eventually attempted to file
an amended complaint, the hearing judge noted that Respondent did not undertake this
action until after Bar Counsel notified him of Mr. Kolodner’s complaint.
“An attorney violates MLRPC 3.2 by delaying to take fundamental litigation steps
in pursuit of the client’s interest.” Attorney Grievance Comm’n v. Gray, 436 Md. 513, 520
(2014) (alterations and internal quotation marks omitted); see also Attorney Grievance
Comm’n v. Patterson, 421 Md. 708, 737 (2011) (concluding that the respondent violated
MLRPC 3.2 because “he undertook no effort to serve process upon either of the
Defendants”).
After filing the insurance action on July 25, 2011, Respondent failed to obtain
service of process on Blue Cross Blue Shield, causing the case to be dismissed on January
10, 2012. And, as of June 16, 2012, Respondent had done nothing to have the dismissal
set aside, nor did he act in any meaningful way to expedite the litigation to protect his
client’s interests. As the hearing judge pointed out, Respondent made an effort to file an
amended complaint only after he was notified by Bar Counsel about Mr. Kolodner’s
complaint against him. We agree with the hearing judge’s conclusion that Respondent
13
violated MLRPC 3.2.
MLRPC 8.1
MLRPC 8.1 provides:
An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known
by the person to have arisen in the matter, or knowingly fail to respond to
a lawful demand for information from an admissions or disciplinary
authority, except that this Rule does not require disclosure of information
otherwise protected by Rule 1.6.
The hearing judge concluded that Respondent violated MLRPC 8.1 by falsely claiming in
his June 5, 2012, letter to Bar Counsel that he had filed an amended complaint in the
insurance action and would be serving the summons upon the resident agent when he
received it from the Clerk. Respondent further violated MLRPC 8.1 by failing to inform
Bar Counsel that the amended complaint had been rejected by the Clerk of the Court, that
no summons was issued, and that the proper defendant could not be served because that
litigation had been dismissed. The hearing judge concluded that Respondent also violated
MLRPC 8.1 by calling Bar Counsel on August 29, 2013, again claiming falsely that the
amended complaint had been filed, without notifying Bar Counsel that the case had been
dismissed over a year earlier. The hearing judge concluded that Respondent additionally
violated MLRPC 8.1 by sending a copy of the amended complaint to Bar Counsel that did
not show the marks crossing over the court’s time/date stamp and by making false
statements to Petitioner’s investigator.
A violation of MLRPC 8.1(a) will result whenever an attorney makes intentional
14
misrepresentations to Bar Counsel. See Attorney Grievance Comm’n v. Brigerman, 441
Md. 23, 39 (2014). In Attorney Grievance Comm’n v. Nussbaum, 401 Md. 612, 628-29
(2007), the respondent submitted ledgers to Bar Counsel that purported to be made
contemporaneously with the transactions in the respondent’s escrow account when the
ledgers actually were made after the fact. We held that the respondent’s “knowing
misrepresentation of the legitimacy of his ledger entries to Bar Counsel certainly violated
MRPC 8.1(a).” Id. at 641. Similarly, Respondent’s submission of an amended complaint
to Bar Counsel, which did not reflect the court’s crossed out time/date stamp, was a
knowing misrepresentation in violation of MLRPC 8.1(a). See also Lee, 393 Md. at 411-
12 (holding that the respondent violated MLRPC 8.1(a) by implying that the delay in
pursuing the client’s case was due to the unavailability of transcripts when, in fact, the
respondent’s failure to undertake a timely review of case materials caused the delay).
Respondent likewise violated MLRPC 8.1(a) by insisting to Bar Counsel in August 2013
that an amended complaint had been filed, when in fact Respondent had received the
court’s rejection of it more than one year earlier. See Attorney Grievance Comm’n v.
Kapoor, 391 Md. 505, 524 (2006) (concluding that the respondent violated MLRPC 8.1(a)
by making a statement to Bar Counsel that was later proven to be false). Bar Counsel
determined initially not to pursue Mr. Kolodner’s complaint because Respondent’s June 5,
2012, letter stated that an amended complaint had been filed in the insurance action.
Respondent did not correct that misapprehension, thereby violating MLRPC 8.1(b). That
violation was exacerbated by Respondent’s subsequent repeated knowing
misrepresentations continuing to maintain that an amended complaint was filed when he
15
knew it had been rejected by the court.
MLRPC 8.4
In relevant part, MLRPC 8.4 provides that:
It is professional misconduct for a lawyer to:
***
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice[.]
The hearing judge concluded that Respondent violated MLRPC 8.4(c) by misrepresenting
to Mr. Kolodner the status of his cases, concealing material information from him, and
agreeing to file an amended complaint as Mr. Kolodner directed but failing to do so. The
hearing judge concluded that Respondent’s misrepresentations to Bar Counsel, which
formed the basis for the MLRPC 8.1 violation, similarly constituted conduct involving
dishonesty, deceit, and misrepresentation in violation of MLRPC 8.4(c). The hearing judge
concluded that Respondent violated MLRPC 8.4(d) by failing to provide competent and
diligent representation to Mr. Kolodner, expedite the litigation for which he was retained,
and keep Mr. Kolodner informed regarding the status of the representation. The hearing
judge concluded that Respondent’s dishonest conduct was also prejudicial to the
administration of justice because it reflects negatively on the legal profession.
Dishonest conduct, for purposes of MLRPC 8.4(c), “encompasses, inter alia,
conduct evincing a lack of honesty, probity or integrity in principle [and] a lack of fairness
and straightforwardness. Thus, what may not legally be characterized as an act of fraud,
deceit or misrepresentation may still evince dishonesty.” Attorney Grievance Comm’n v.
McDonald, 437 Md. 1, 39-40 (2014) (alterations and internal quotation marks omitted).
16
“Attorneys violate MLRPC 8.4(c) when they misrepresent to their clients the status of their
clients’ cases, or conceal material information from their clients, even if they have not
misrepresented explicitly the information.” Thomas, 440 Md. at 555.
We agree with the hearing judge that Respondent violated MLRPC 8.4(c).
Respondent engaged in intentional dishonest conduct toward Mr. Kolodner when he agreed
to file an amended complaint in the Levindale action but instead disregarded Mr.
Kolodner’s directions and stipulated to the dismissal of the case with prejudice. See
Attorney Grievance Comm’n v. London, 427 Md. 328, 350 (2012) (concluding that an
attorney violated MLRPC 8.4(c) by telling his client that he had “filed the deed” and the
deed was “taken care of” when no such deed was ever filed and may not have been
prepared). Respondent further violated MLRPC 8.4(c) when he failed to notify Mr.
Kolodner that the insurance action had been dismissed because Respondent had failed to
effect service of process on the defendant. See Bleecker, 414 Md. at 169 (concluding that
“Bleecker’s concealment from his client of material information regarding the dismissal of
her case represents a violation of Rule 8.4(c)”). Respondent’s dishonest conduct toward
Bar Counsel also violates MLRPC 8.4(c). Attorney Grievance Comm’n v. Harris, 403 Md.
142, 164 (2008) (explaining that “an attorney acts dishonestly and deceitfully” in violation
of MLRPC 8.4(c) “by knowingly making false statements to Bar Counsel”).
We further agree with the hearing judge that Respondent’s misconduct was
prejudicial to the administration of justice in violation of MLRPC 8.4(d). The failure to
represent a client competently, diligently, and honestly reflects negatively on the legal
profession as a whole. Thomas, 440 Md. at 555-56 (concluding that “the violations of
17
MLRPC 1.1, 1.3, and 1.4 together constituted a violation of MLRPC 8.4(d)” because that
conduct brings the legal profession into disrepute). We held in Bleecker that the
respondent’s “failure to timely file [his client’s] personal injury claim, compounded by his
failure to promptly notify [the client] and advise her to seek the advice of independent
counsel regarding a malpractice action, constituted behavior that seriously impairs public
confidence in the entire profession, in violation of Rule 8.4(d).” 414 Md. at 175. As in
Bleecker, Respondent’s failure to perform competently and diligently in pursuing Mr.
Kolodner’s interests in the two civil actions for which he was retained, and to notify Mr.
Kolodner of those failures, impairs confidence in the legal profession and thereby violates
MLRPC 8.4(d). Respondent’s numerous misrepresentations and material omissions to Mr.
Kolodner and Bar Counsel likewise violated MLRPC 8.4(d). See Sperling, 432 Md. at 494.
III.
In determining the proper sanction to impose upon an attorney for his or her
professional misconduct, our goal is “to protect the public and the public’s confidence in
the legal profession.” Attorney Grievance Comm’n v. Zimmerman, 428 Md. 119, 144
(2012). We accomplish that goal by deterring “‘the type of conduct which will not be
tolerated,’ and by removing those unfit to continue in the practice of law from the rolls of
those authorized to practice in this State.” Patterson, 421 Md. at 740 (quoting Bleecker,
414 Md. at 176). The appropriate sanction for Respondent’s misconduct is disbarment.
“Disbarment is warranted in cases involving flagrant neglect of client affairs,
including the failure to communicate with clients or respond to inquiries from Bar
Counsel.” Thomas, 440 Md. at 558; see also Attorney Grievance Comm’n v. Dunietz, 368
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Md. 419, 431 (2002) (“Respondent’s continuing disregard for the attorney grievance
process, his apparent indifference to the tenets of his chosen profession, the dereliction of
his duties to his client, and his ostensible lack of remorse for his misconduct, warrant a
sanction of this severity.”).
We also have disbarred attorneys who misrepresented the status of their clients’
cases, allowed the statute of limitations to expire, and failed to cooperate with Bar Counsel.
See Bleecker, 414 Md. at 176, 180. When an attorney engages in intentionally dishonest
conduct, disbarment will follow as a matter of course absent compelling extenuating
circumstances that justify a lesser sanction. Attorney Grievance Comm’n v. Levin, 438 Md.
211, 231 (2014). Respondent engaged in intentionally dishonest conduct when he lied to
Mr. Kolodner and Bar Counsel about the status of the matters for which he was retained.
We agree with Petitioner, moreover, that Respondent’s misconduct is compounded
by the presence of a number of the aggravating factors suggested by the American Bar
Association. The potential aggravating factors are:
(a) prior disciplinary offenses;
(b) dishonest or selfish motive;
(c) a pattern of misconduct;
(d) multiple offenses;
(e) bad faith obstruction of the disciplinary proceeding by intentionally
failing to comply with rules or orders of the disciplinary agency;
(f) submission of false evidence, false statements, or other deceptive
practices during the disciplinary process;
(g) refusal to acknowledge wrongful nature of conduct;
(h) vulnerability of victim;
(i) substantial experience in the practice of law;
(j) indifference to making restitution;
(k) illegal conduct, including that involving the use of controlled substances.
Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions
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(2012); see also Attorney Grievance v. Zhang, 440 Md. 128, 172 (2014) (considering the
presence of aggravating factors though the hearing judge made no findings in that regard).
Petitioner submits that factors (c), (d), (f), and (j) are present in this case. We agree.
Respondent engaged in a pattern of misconduct by failing repeatedly to act in Mr.
Kolodner’s best interest over the course of years and making numerous misrepresentations
to Mr. Kolodner and Bar Counsel, implicating factor (c). Factor (d) is implicated by
Respondent’s numerous violations of the Rules. See Barton, 442 Md. at 146. In addition,
Respondent submitted false evidence to Bar Counsel in the form of an amended complaint
that lacked the court’s cross out of the time/date stamp, implicating factor (f). Factor (f) is
further implicated by Respondent’s false statement to Bar Counsel in August 2013 that an
amended complaint had been filed, when in fact the amended complaint had been rejected.
Respondent’s failure to participate in the disciplinary proceedings reflects his indifference
to making restitution, thereby implicating factor (j). See Thomas, 440 Md. at 557
(concluding that the respondent’s failure to participate in the disciplinary proceedings
demonstrated an indifference to making restitution). There are no mitigating factors on
this record for us to consider because Respondent declined to participate in the disciplinary
proceedings in any way. See id.
Respondent’s professional misconduct, exacerbated by a number of aggravating
factors and absent any facts in mitigation, is deserving of the ultimate sanction. We
consequently issued a Per Curiam Order disbarring Respondent on September 29, 2015.
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