«Attorney Grievance Commission of Maryland v. Erica S. White, Misc. Docket AG No. 80, September Term, 2014. Opinion by Hotten, J. ATTORNEY DISCIPLINE ...»
Attorney Grievance Commission of Maryland v. Erica S. White, Misc. Docket AG No. 80,
September Term, 2014. Opinion by Hotten, J.
ATTORNEY DISCIPLINE — SANCTIONS — INDEFINITE SUSPENSION WITH
THE RIGHT TO APPLY FOR READMISSION AFTER SIX MONTHS — Court of
Appeals ordered indefinite suspension with the right to apply for readmission after six months
for an attorney who admitted ignorance of trust account rules; failed to remediate her
misconduct or adhere to the protocols under consecutive Conditional Diversion Agreements with Bar Counsel for prior misconduct concerning her trust account; failed to cooperate with Bar Counsel while under investigation; and failed to implement law practice safeguards during an illness or otherwise protect her clients’ interests in conformance with the Rules of Professional Conduct. Respondent engaged in conduct in violation of Maryland Lawyers’ Rule of Professional Conduct (“MLRPC”), 1.1, 1.3, 1.4(a) and (b), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c), and (d), and Md. Rules 16.606.1(a)(1)-(3), 16-607, 16-609(b) and (c), and § 10-306 of the Business Occupations & Professions Article.
Circuit Court for Baltimore City
IN THE COURT OF APPEALSCase No. 24-C-15-000156 Argued: February 9, 2016 OF MARYLAND Misc. Docket AG No. 80 September Term, 2014 _________________________________
ATTORNEY GRIEVANCE COMMISSIONOF MARYLAND v.
ERICA S. WHITE ____________________________________
*Battaglia, Greene, Adkins, McDonald, Watts, Hotten, JJ.
Opinion by Hotten, J.
Filed: May 23, 2016 *Battaglia, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Constitution, Article IV, Section
in separate legal matters, failed to comply with remedial conditions as required under consecutive Conditional Diversion Agreements (“CDA”)1 for prior misconduct concerning her trust account; failed to secure safeguards during an illness to ensure a timely appeal for her client or otherwise protect her client’s interests in conformance with the Rules of Professional Conduct; and mismanaged her attorney trust account by repeatedly accumulating negative balances, depositing unearned fees, and maintaining improper record-keeping practices.
Respondent, Erica S. White, a member of the Bar of Maryland, represented Keith Fleming (“Mr. Fleming”) in a divorce and custody matter (“Fleming matter”) and Karma Sewell-Carpenter (“Ms. Sewell-Carpenter”), in a landlord-tenant dispute (“Sewell matter”). Between March 2012 and November 2013, Respondent was under a CDA with Bar Counsel for prior misconduct involving mismanagement of her attorney trust account.
Respondent’s CDA was later amended (“Amended CDA”), then subsequently revoked in Conditional diversion in attorney disciplinary matters is distinguishable from the imposition of a sanction. See Attorney Grievance Comm’n v. Cappell, 389 Md. 402, 419A.2d 112, 122 (2005). Maryland Rule 16-712(b)(3) grants Bar Counsel the authority to “enter into and implement Conditional Diversion Agreements” with attorneys in order to remedy misconduct. An attorney may be eligible for conditional diversion when his or her professional misconduct was not the result of the following: any willful or dishonest conduct, the cause or basis of the misconduct can be resolved through remediation or alternative programs or mechanisms, and the disposition is in the best interest of the public and the attorney’s clients both present and prospective. See id. at 421, 886 A.2d at 123.
April 2014 due to Respondent’s non-compliance with the terms of the CDA. (collectively, “CDA matter”).
On December 30, 2014, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, based upon her representation of Mr.
Fleming and Ms. Sewell-Carpenter, non-compliance with the CDA and Amended CDA, and the mishandling of her trust account throughout this period (“Trust Account matter”).
Bar Counsel alleged that Respondent violated the following Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”): Rule 1.1 (Competence), Rule 1.3 (Diligence), Rule 1.4(a) and (b) (Communication), Rule 1.15(a) and (d) (Safekeeping Property); 1.16(d) (Declining or Terminating Representation); 8.1(a) and (b) (Bar Admission and Disciplinary Matters); and Rule 8.4(a), (c), and (d) (Misconduct).
Bar Counsel also alleged that Respondent violated Maryland Rules 16-606.1 (Attorney Trust Account Record-Keeping), 16-607 (Commingling of Funds), 16-609 (Prohibited Transactions), and Md. Code (1989, 2010 Repl. Vol) § 10-306 of the Business Occupations & Professions Article (“Bus. Occ. & Prof.”) (Misuse of Trust Money).
By Order dated January 9, 2015, this Court transmitted the matter to the Circuit Court for Baltimore City and designated the Honorable Edward R.K. Hargadon (“hearing judge”) to render findings of fact and conclusions of law. On April 17, 2015, both parties participated in a scheduling conference call with the hearing judge, setting a hearing for June 24, 2015 at 9:30 a.m. On or about June 22, Respondent informed the court that she
Respondent. Ms. Sewell-Carpenter, Edwin Karr (“Mr. Karr”), Investigator for the Attorney Grievance Commission, Anne Deady, Esquire (“Ms. Deady”), the law practice monitor assigned to Respondent under her Amended CDA, and Laura Burrows, an attorney who worked with Respondent on an unrelated matter, testified on behalf of Bar Counsel.
Respondent represented herself and testified. On September 4, 2015, the hearing judge filed with this Court findings of fact and conclusions of law, determining that: (1) relative to the Fleming matter and Respondent’s CDA and Amended CDA violations, she violated MLRPC 1.1, 1.4, 1.15,2 8.4(a) and (d), and Md. Rule 16.606.1; (2) regarding Respondent’s false statements and misrepresentations to Bar Counsel, she violated MLRPC 8.1(a) and (b), 8.4 (a), (c), and (d); (3) relative to the Sewell matter, she violated MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.4(d); and (4) regarding the Trust Account matter, she violated MLRPC 1.1, 1.15(a), 8.4(d), Md. Rules 16-606.1(a)(1)-(3), 16-607, 16-609(b) and (c), and Bus. Occ. & Prof. § 10-306.
On September 22, 2015, Bar Counsel filed its recommendation for sanctions, requesting indefinite suspension with the right to apply for readmission after six months, and took no exceptions to the hearing judge’s findings of fact or conclusions of law. On September 23, 2015, Respondent filed general exceptions to the hearing judge’s findings
9, 2016.3 On February 9, 2016, we heard oral argument. Respondent conceded that she engaged in professional misconduct relative to the alleged charges, but attributed her actions to illness, recuperation after surgery, and difficulties experienced as caretaker of her mother until her death, which collectively impacted her practice during those periods.
For the reasons that follow, we conclude that Respondent violated MLRPC 1.1, 1.3, 1.4(a) and (b), 1.15(a), 1.16(d), 8.1(a) and (b), 8.4(a), (c), and (d), Md. Rules 16.606.1(a)(1)-(3), 16-607, 16-609(b) and (c), and Bus. Occ. & Prof. § 10-306, and will indefinitely suspend her from the practice of law in this State with the right to apply for readmission after six months.
The hearing judge rendered the following findings of fact, which we summarize:
A. Respondent’s CDA, Subsequent Amended CDA, and the Fleming Matter Respondent was admitted to the Bar of Maryland on November 3, 2007, and currently maintains a law office in Baltimore, Maryland. On March 21, 2012, Respondent entered into a one-year CDA with Bar Counsel.
During oral argument, Respondent asserted that the February 9 amendment excepting to the hearing judge’s findings and conclusions corrected errors in her prior filing. However, upon our review, both filings appear to be the same.
engaged in professional misconduct relative to her representation of Mr. Fleming.5 Under the CDA, Respondent was required to review a Continuing Legal Education DVD on trust account management. However, two months prior to completing the CDA, Respondent failed to fulfill her obligations due to a failure to timely deposit funds into her trust account and to provide client records to Bar Counsel. As a result, on November 25, 2013, Bar Counsel amended Respondent’s CDA and assigned Ms. Deady as her law practice monitor.
The Amended CDA contained the following conditions:
Respondent will provide [Ms. Deady] with a copy of her general ledger, individual client ledgers, monthly trust account reconciliation, trust account statement, and corresponding cancelled checks on a monthly basis for her monitor to submit to Bar Counsel for the remainder of the Amended CDA.
Respondent will attend a meeting with Certified Public Accountant/Commission Investigator Charles Miller [(“Mr. Miller”)] to review Respondent’s financial records and to discuss Respondent’s trust Md. Rule 16-736(c)(2)(A) provides, “[b]y signing the Agreement, the attorney (A) acknowledges that the attorney has engaged in conduct that constitutes professional misconduct or is currently incapacitated[.]” In its Petition, Bar Counsel recounted the following facts relative to Respondent’s representation of Mr. Fleming, which we summarize: On September 11, 2011, Mr. Fleming retained Respondent to represent him in his divorce and custody matter in the General Court of Justice, District Court Division, North Carolina (“General Court”). On that same day, Mr. Fleming signed Respondent’s retainer agreement and agreed to pay a $1500 nonrefundable retainer. Although Respondent initiated pro hac vice admission to the North Carolina bar, she did not complete the process because she had no record that the retainer had been paid. Respondent did not maintain trust account records or advise Mr. Fleming of the status of his case. Respondent communicated with the General Court on two occasions, but never entered an appearance on Mr. Fleming’s behalf. Respondent contended that she did not seek pro hac vice admission because Mr. Fleming did not pay the full $1,500 retainer. In reliance on Respondent’s representation, Mr. Fleming did not seek other counsel and missed his scheduled hearing in the General Court.
[Ms. Deady] shall be required to attend a formal hearing/court proceeding with Respondent within two [ ] months from the new effective date of the Amended CDA and to complete a client observation form in connection with the hearing/proceeding.
[Ms. Deady] shall continue to provide reports to Bar Counsel on a monthly basis and submit each report on the 30th day of the month. In addition, Respondent shall meet with [Ms. Deady] on a monthly basis on the twentieth [ ] day of each month. During the meeting, Respondent shall discuss her Amended CDA in detail, provide any needed trust account records and/or billing documentation to the monitor, and to submit her written report of her biggest challenges and/or goals/accomplishments for the month.
Respondent’s Amended CDA shall remain in effect until July 31, 2014.
i. Respondent’s Interactions with Ms. Deady Respondent admitted that during November 2013 through February 2014, she failed to provide the information to Ms. Deady and Mr. Miller regarding her general ledger, individual client ledgers, monthly reconciliation, trust account bank statement, and corresponding cancelled checks on a monthly basis. On November 8, 2013, Respondent met with Ms. Deady in her law office, to review her files. Respondent promised to submit copies of her client ledgers, trust account reconciliation statements, and trust account bank statements per CDA requirements by November 20, 2013. Due to Respondent’s other
2013 report to Bar Counsel.
Ms. Deady submitted her second monthly report to Bar Counsel on January 10, 2014, which reflected that she contacted Respondent on January 6, 2014 for the required documents. However, Respondent advised that she was unable to comply due to scheduled surgery that same day. Although Respondent promised to provide the documentation after her recuperation, she did not.
Ms. Deady left a voicemail for Respondent on January 30, 2014. In Ms. Deady’s third monthly report to Bar Counsel, she advised that Respondent had not contacted her since January 6, 2014. Bar Counsel granted Respondent an eight-day extension to submit her documentation to Ms. Deady. Ms. Deady’s fourth monthly report to Bar Counsel on February 28, 2014, reflected that she contacted Respondent on February 25, 2014 to schedule an appointment on February 27, 2014, and noted Respondent’s failure to provide any documents or meet with her since November 2013. However, Respondent was unable to meet with Ms. Deady on February 27, citing a need to prepare for a motion and complications from her surgery.
On November 20, 2013, Respondent informed Ms. Deady that she had not prepared the requested documents because she had new clients and “had to attend to their cases.” Respondent was also unable to meet with Ms. Deady on November 22, 2013 after being requested to do so.
-7ii. Respondent’s Interactions with Attorney Grievance Commission Investigator, Mr. Karr In February 2014, Mr. Karr contacted Respondent regarding the impending revocation of her Amended CDA. Mr. Karr conducted an interview of Ms. SewellCarpenter on March 6, 2014, but received no response from Respondent after leaving voice messages on March 7 and 10, 2014. On March 11, 2014, Mr. Karr contacted Respondent and scheduled an interview for March 25, 2014, at 11:00 a.m.
During the hearing, Mr. Karr testified that Respondent attempted to cancel the interview, citing an impending trial and inquired whether he could provide her with written questions in advance. Mr. Karr directed her to Assistant Bar Counsel JaCina Stanton (“Ms.