About the Author
Retired Judge, Court of Appeals of Maryland
Issue: What sanction should the Court impose upon an attorney who gave incorrect advice to a client in an immigration matter, told the client that he did not need to appear at an immigration hearing and then did not appear himself?
Holding: Combined with the attorney's erroneous advice, his acceptance of a legal fee, abandonment of a client whose failure to appear at this hearing resulted in a deportation order, and failure to respond to Bar Counsel's inquiries warranted disbarment.
Alleged Violations: Maryland Lawyers’ Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(c) and (d) (Misconduct).
Citation: Misc. Docket AG No. 63, September Term, 2013
PANEL: BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD, WATTS, JJ.
Opinion by Harrell, J. (McDonald, J., concurs.)
In this attorney disciplinary action, the Attorney Grievance Commission of Maryland ("Petitioner" or "the Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("PDRA") against Gayton Joseph Thomas, Jr., Esquire ("Respondent" or "Thomas"), charging him with violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") arising out of his representation of Mohamed Abou Sarieh Hamed ("Hamed"). Respondent was charged with violating MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 8.1(b) (Bar Page 2 Admission and Disciplinary Matters), and 8.4(c) and (d) (Misconduct). The Commission served Thomas on 6 December 2013 with a copy of the PDRA, Writ of Page 3 Summons, and Order for Hearing under Maryland Rule 16-752(a). For reasons that we hope shall become clear in comparatively short order, we set out here the averments of the PDRA:
Thomas did not file (timely or otherwise),
Maryland Rule 16-754, an Answer to the PDRA. The case was assigned to a
hearing judge in the Circuit Court for
Baltimore County to conduct an evidentiary hearing and render findings
fact and recommended conclusions of law with regard to the charges. In
of there being no Answer to the PDRA, Petitioner filed a Motion for
Default. An order granting the motion was signed and an order entered.
Thomas did not appear for the hearing. Hamed was the only witness
Bar Counsel. In the
hearing judge's opinion, the following factual findings were made:
Page 16 Finally, Petitioner took exception to the hearing judge's conclusions of law. The Commission's argument here is but another iteration of its arguments that the material facts and violations of the Rules were established already by the default order.
The Court of Appeals has original jurisdiction over attorney discipline matters. Attorney Grievance Commission v. Kremer, Page 17 Attorney Grievance Commission v. Moeller, , , , (2012) ("With respect to a hearing judge's conclusions of law, no deference applies and we review those conclusions de novo."); Attorney Grievance Commission v. Patterson, , , , (2011) ("We grant no deference to the hearing judge's proposed conclusions of law; those, we review de novo."). If no exceptions are filed with respect to the hearing judge's findings of fact, we may "treat the findings of fact as established for the purpose of determining appropriate sanctions, if any." Md. Rule 16-759(b)(2)(A). If exceptions are filed, we must determine whether the findings of fact are clearly erroneous. Md. Rule 16-759(b)(2)(B); see Attorney Grievance Commission v. Stolarz, , , , (2004) ("We ... accept the hearing judge's findings of fact unless clearly erroneous."). Ordinarily, when assessing the hearing judge's findings of fact, we "give due regard to the opportunity of the hearing judge to assess the credibility of witnesses." Md. Rule 16-759(b)(2)(B). The hearing judge's credibility determinations are not entitled to deference, however, when "the credibility decision is so contrary to the unexplained, unimpeached, unambiguous documentary evidence as to be inherently incredible and unreliable." Maignan, , (2005) (quoted in Kusi v. State, , , , (2014)). The opinion in Maignan offers an illustration of this principle: "If the check admitted into evidence was blue in color, and we could see it was blue in color, we certainly would not accept the judge's crediting of the office manager's testimony that it was yellow." Id. Ultimately, "[i]t is ... for us, however, to determine whether the judge's findings are, indeed, supported by substantial Page 18 evidence." Maignan, , . The bar is set high for the exceptor, and purposefully so., , , (2013). Accordingly, we "conduct an independent review of the record." Attorney Grievance Commission v. Garfield, , , , (2002) (internal citations omitted). "We determine, ultimately, whether an attorney has committed the misconduct charged by the Attorney Grievance Commission." Attorney Grievance Commission v. Maignan, , , , (2005). Ordinarily, in accordance with Maryland Rule 16-752, we refer petitions for disciplinary action to a circuit court judge to act as our hearing officer, for that judge to receive evidence and thereafter present to the Court findings of fact and recommended conclusions of law. See Maignon, , . Exceptions may be taken by the parties to the findings of fact, proposed conclusions of law, or both. We review the judge's recommended conclusions of law without deference, a standard referred to sometimes as de novo. Md. Rule 16-759(b)(1); see Attorney Grievance Commission v. Greenleaf, , , , (2014) ("In an attorney discipline proceeding, this Court reviews for clear error the hearing judge's findings of fact, and reviews without deference the hearing judge's conclusions of law.");
At the outset of her opinion, the hearing judge recognized that, pursuant to Maryland Rule 2-323(e), "[a]verments in a pleading to which a responsive pleading is required ... are admitted unless denied in the responsive pleading...." See also Md. Rule 16-754 (requiring the timely filing of an answer to a PDRA and providing what happens when there is a default). She conceded that, "if reviewed in a vacuum and accepted as true, the averments set forth in the [PDRA] are sufficient to establish violations of MLRPC 1.1, 1.3, 1.4, 8.1, and 8.4 as alleged by the Commission." (emphasis added). From her perspective, however, "the evidence submitted at the hearing casts doubt on the claims made in the petition." Curiously, pursuant to Rule 2-323(e), and acknowledged elsewhere in her opinion, she deemed only one fact admitted due to Thomas having filed no responsive pleading to the PDRA: Thomas was admitted to the Bar of the Court of Appeals of Maryland on 21 June 2000.
In the Exceptions, Bar Counsel argued that the bulk of the hearing judge's findings of fact were incompatible with the admitted material facts established by the Order of Default. Relying on Attorney Grievance Commission v. Lee, Page 19 Petitioner argues that Maryland Rule 16-754(c) obliged the hearing judge to treat a failure to file a timely answer as a default, and Rule 2-323(e) obliged the hearing judge to treat averments in pleadings as admitted unless denied. According to Bar Counsel, once an Order of Default is entered, it functions as a determination of liability that may be revisited only by a timely Motion to Vacate. Thus, the hearing judge should not have "disregard[ed] [Rule 2-323(e)], disregard[ed] the averments which have been admitted as true, pick[ed] apart the record, [found] the Complainant not credible, and fail[ed] to find violations of [most of the Rules at issue]." Page 20 [EDITORS' NOTE: THIS PAGE CONTAINED FOOTNOTES.] Page 21 In Nefflen, we had occasion to consider the nature of an order of default in a different setting than an attorney disciplinary matter. , . In that civil action between a mortgagor and mortgage servicer over an alleged breach of a settlement agreement, we reviewed at length the statutory history and meaning of Rule 2-613. Considering whether a party may contest liability after a default judgment has been entered, we held that, although a default order is not itself a judgment, defaulting defendants could not use Rule 2-534 to "revisit issues of liability established by an unvacated order of default." Nefflen, , . Instead, an order of default determines liability conclusively, and such a determination may be set aside only if the defendant moves successfully to vacate the order. Nefflen, , . The hearing judge's sole remaining task at the resultant evidentiary hearing is to determine damages. Id. Lee is instructive, as the procedural history in that case resembles fairly that of the present matter. There the respondent did not answer the Commission's petition, and Page 22 accordingly an Order of Default was entered. Lee, , . The respondent filed a Motion to Vacate Order of Default, which was denied. Lee, , . The hearing judge disagreed initially with Bar Counsel's position that the averments contained in the [Petition for Disciplinary Action] were deemed admitted by operation of Rules 2-613(f) and 2-323(e), and conducted "an unnecessarily protracted evidentiary hearing." Lee, , ; see id. n.7. Later in that proceeding, recognizing that the matter should proceed more appropriately by default, the hearing judge found "'that th[e] allegations [of the Petition for Disciplinary Action] having not been joined at issue by way of an answer are to be considered as true for purposes of the court's decision in making Conclusions of Law in this case.'" Id. n.7 (internal quotations omitted). Nonetheless, the hearing judge found that the respondent did not violate one of the rules with which he was charged (MLRPC 1.4), to which conclusion Bar Counsel took exception. The Lee Court held that, in light of the default order:, (2006), and Franklin Credit Management Corporation v. Nefflen, , (2013),
Attorney Grievance Commission v. Harmon, Page 23 petition, nor did he respond to Requests for Admission of Fact and Genuineness of Documents. Harmon, , . An Order of Default was entered pursuant to Bar Counsel's Motion. Id. Harmon appeared at the hearing, clutching an Answer and Opposition to Motion to Default, which he sought to file untimely. The hearing judge rejected respondent's belated initiative. Harmon, , . Pursuant to Lee and Md. Rule 2-323(e), the hearing judge deemed (appropriately) the factual averments made in the PDRA as admitted.Id.; see also Attorney Grievance Commission v. Lawson, , , , , n.1 (2012) ("As a result of the default, the averments contained in the Commission's [Petition for Disciplinary Action] were deemed admitted, and we consider them as true under Rules 2-613(f) and 2-323(e)."); Attorney Grievance Commission v. Steinberg, , , , (2006); Attorney Grievance Commission v. Kapoor, , , , (2006)., (2013), proceeded similarly. There, the respondent also did not answer the Commission's
The well-pleaded averments in the PDRA in the present case were not denied. An Order of Default was entered in the case, and not vacated. Thus, we accept those averments as admitted. We shall not consider the hearing judge's findings of fact and conclusions of law (or Bar Counsel's exceptions to them) because there was no apparent need for a full-blown evidentiary hearing in this case, although we recognize that our Page 24 conclusion in this latter regard is reached only with the benefit of hindsight. Based on the deemed admissions, we conclude that the admitted facts are sufficient, to a clear and convincing standard, to warrant concluding that Respondent violated MLRPC 1.1, 1.3, 1.4, 8.1, and 8.4(c) and (d).
MLRPC 1.1 provides:
MLRPC 1.3 provides:
MLRPC 1.4 provides:
MLRPC 8.1(b) provides:
MLRPC 8.4(c) and (d)
provide: It is professional misconduct for a
Violations of MLRPC 8.4(d) may occur when attorneys fail to keep their clients advised of the status of their representation or, more grievously, fail to represent diligently their clients. In Park, the violations of MLRPC 1.1, 1.3, and 1.4 together constituted a violation of MLRPC 8.4(d), as such behavior "constitute[d] conduct that brings disrepute to the legal profession.", ; see Attorney Grievance Commission v. Rose, , , , (2006) (describing conduct that "tends to bring the legal profession into disrepute and is therefore prejudicial to the administration of justice"). Conduct prejudicial to the administration of justice is that which "reflects negatively on the legal profession and sets a bad example for the public at large." Attorney Grievance Commission v. Goff, , , , (2007). A failure by an attorney to appear in court at a hearing on behalf of his or her client constitutes conduct prejudicial to the administration of justice because:
Walker-Turner,, (quoting Attorney Grievance Commission v. Ficker, , , , (1990)). As in Park, Respondent's conduct here giving rise to violations of MLRPC 1.1, 1.3, and 1.4 constitutes a violation of MLRPC 8.4(d) as well. By taking Hamed's case, failing to appear at his 9 September 2010 hearing, taking payments from the Hameds, and then disappearing essentially, Respondent brought disrepute upon the legal profession and caused prejudice to the administration of justice in Hamed's immigration matter.
In determining the appropriate sanction, we consider the facts of the case, while balancing any aggravating or mitigating factors. Kremer,, . Mitigation "is not on the table, however, without the attorney providing supporting evidence of the existence of such factors." Id. As Respondent has not participated in any way during these proceedings, there are no mitigating factors to consider. In weighing possible aggravating factors, we turn, as we often do, to the suggested factors of the American Bar Association:
American Bar Association, Standards for Imposing Lawyer Sanctions, § 9.22, Compendium of Professional Responsibility Rules and Standards (2012); see Attorney Grievance Commission v. Coppock, Page 32 conduct and indifference to making restitution to Hamed for the circumstances in which he was left in the lurch. Finally, we consider the vulnerable nature of Hamed's status. We have recognized previously the special vulnerability of immigrants as clients. See Attorney Grievance Commission v. Brisbon, , , , (2011) (describing the purposes of the Maryland Immigration Consultant Act, Maryland Code (1975, 2013 Repl. Vol.) §§ 3301-3306, as "to offer simple protection to extremely vulnerable people, largely unable or unwilling as a practical matter to defend themselves, from being preyed on")., , , (2013). Of the suggested list, factors (e), (g), (h), and (j) are implicated by the admitted facts in the case at hand. Respondent failed intentionally to participate in the disciplinary proceedings or comply with the information requests of the Commission. Absence from the proceedings also indicates a refusal to acknowledge the wrongful nature of his
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. Kremer,, (determining that disbarment was appropriate for an attorney's neglect and abandonment of clients' cases); Attorney Grievance Commission v. Dunietz, , , , (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 [disbarment].").
The attorney in Attorney Grievance Commission v. Lara committed offenses similar to those of Respondent in this matter. Page 33 disbarment was the appropriate sanction. Lara also failed to cooperate with Bar Counsel and demonstrated a lack of professionalism in that he never responded formally to any of the complaints filed against him. Respondent in this matter also failed to communicate with his client, failed to complete any of the work that he was retained to complete, and failed to participate in these proceedings in any way., (2011). In that matter, Lara collected advance fees from two clients and abandoned his representation of them, ceasing all communications. Because Lara did not keep his clients apprised of his changed contact information, did not complete the legal work for which he was retained, and did not issue a fee refund once he terminated his practice, we determined that
Thomas's misconduct warrants the sanction of disbarment.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THE COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761(b), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST GAYTON JOSEPH THOMAS, JR.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Unless otherwise provided, all Rule references in this opinion are to the Maryland Lawyer's Rules of Professional Conduct ("MLRPC").
A lawyer shall act with reasonable diligence and promptness in representing a client.
(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 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.
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:
* * *
(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.
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[.]
A later footnote flagged Ms. Hamed's 25 August 2010 response to Thomas's email, in which she inquired as to how she should deliver "the first due money" to him. The judge concluded that the "inquiry certainly casts significant doubt on [Hamed's] testimony that $450 was paid to [Thomas] months earlier."
Failure to answer. If the time for filing an answer has expired and the respondent has failed to file an answer in accordance with section (a) of this Rule, the court shall treat the failure as a default and the provisions of Rule 2-613 shall apply.
Rule 2-613 states, in pertinent part, that if a motion to vacate an order of default has not been filed,
[T]he court, upon request, may enter a judgment by default that includes a determination as to liability and all relief sought....
Effect of failure to deny. Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damages, are admitted unless denied in the responsive pleading or covered by a general denial. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided....
Rule 2-613(f) suggests the appropriate scope of an evidentiary hearing conducted after an Order of Default is entered in a generic civil case:
If, in order to enable the court to enter judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings, or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury.
In the context of a default attorney grievance proceeding, the Rule should be understood that, after an order of default has been entered, the taking of additional evidence may be warranted only when, as noted above, new and material evidence has come to light since the filing of the PDRA, or perhaps when the hearing judge expresses doubt as to certain averments (or absence thereof) and invites live testimony or additional demonstrative evidence. Discussions between Bar Counsel and hearing judges regarding the potential need for or desirability of additional evidence in a default situation might occur appropriately during a pre-hearing scheduling conference, for example.
At the evidentiary hearing here, Bar Counsel suggested to the hearing judge that he intended to "be brief this morning only because we have submitted [the] complaint as well as several other pieces of information." Later in the hearing, the following exchange took place between Bar Counsel and the hearing judge:
[Bar Counsel]: Your Honor, I guess what I'm trying to point out is we brought [Hamed] here to really put a face on the story, but we have prepared his complaint and the documents that we've submitted into evidence that are very thorough including dates and specific information. So, I apologize to the Court if it appears that we're kind of glossing over a lot of this information —
THE COURT: It does appear that way.
[Bar Counsel]: — but I think that for the purpose of making sure we have everything accurate, we have already included that in our evidence, and [Hamed] is just here to tell his story and answer any questions of the Court.
Although Bar Counsel may be correct that the evidentiary hearing may be important sometimes in putting a "face" on a complaint, as well as developing the effect of attorney misconduct on clients, such hearings may do more harm than good ultimately, as appears to have been the case here, by attempting to apply too many additional layers of gloss to already-established facts, so as to obscure and bring into doubt the clarity of the thorough and well-pleaded facts from a PDRA.
The Majority opinion provides, in footnotes 17 and 26, some helpful advice to Bar Counsel and hearing judges on how to deal with situations, not uncommon, in which an attorney accused of misconduct fails to respond to the charges. Perhaps it is worth incorporating some of that good advice in our rules or in the standard referral order to hearing judges to make it more readily accessible than a Westlaw search.
- Decided on .