Attorney Grievance v. Storch , 445 Md. 82 ( 2015 )

Attorney Grievance Commission of Maryland v. Patricia DuVall Storch, Misc. Docket AG
No. 7, September Term, 2014. Opinion by Greene, J.
ATTORNEY DISCIPLINE – In the present case, an attorney appointed as personal
representative of an estate failed to make timely filings and attend hearings. After her
termination as personal representative, she repeatedly failed to comply with court orders to
turn over all estate property to the successor personal representative. The attorney’s
misconduct resulted in the following violations of the MLRPC 1.1; 1.2(a); 1.3; 1.16(a) and
(d); 3.4(a) and (c); and 8.4(a) and (d). Accordingly, the appropriate sanction is indefinite
suspension.
Circuit Court for Howard County
Case No. 13-C-14-098914
Argued: September 3, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 7
September Term, 2014
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
PATRICIA DUVALL STORCH
______________________________________
Greene
Adkins
McDonald
Watts
Harrell, Jr., Glenn T. (Retired,
Specially Assigned)
Wilner, Alan J. (Retired,
Specially Assigned),
JJ.
______________________________________
Opinion by Greene, J.
______________________________________
Filed: October 19, 2015
The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to
Maryland Rule 16-751(a), filed a “Petition For Disciplinary or Remedial Action” against
Patricia DuVall Storch (“Respondent” or “Storch”), on April 25, 2014. Petitioner charged
Storch with violating various Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”
or “Rule”), specifically Rule 1.1 (Competence),1 Rule 1.2(a) (Scope of Representation and
Allocation of Authority Between Client and Lawyer),2 Rule 1.3 (Diligence),3 Rule 1.16(a)
and (d) (Declining or Terminating Representation),4 Rule 3.2 (Expediting Litigation),5 Rule
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.”
2
MLRPC 1.2(a) provides in pertinent part that 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. . . .”
3
MLRPC 1.3 provides: “A lawyer shall act with reasonable diligence and promptness in
representing a client.”
4
MLRPC 1.16 provides in pertinent part:
(a) Except as stated in paragraph (c), a lawyer shall not represent a client or, where
representation has commenced, shall withdraw from the representation of a client if:
(1) the representation will result in violation of the Maryland Lawyers’ Rules
of Professional Conduct or other law;
***
(d) Upon termination of representation, a lawyer shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving reasonable notice
to the client, allowing time for employment of other counsel, surrendering papers and
property to which the client is entitled and refunding any advance payment of fee or
expense that has not been earned or incurred. The lawyer may retain papers relating
2
3.4(a) and (c) (Fairness to Opposing Party and Counsel),6 and Rule 8.4(a) and (d)
(Misconduct).7
This Court referred the matter to the Honorable Richard S. Bernhardt of the Circuit
Court for Howard Country for a hearing and to render findings of fact and recommended
conclusions of law pursuant to Maryland Rule 16-757. Judge Bernhardt conducted an
evidentiary hearing on November 19, 2014. Petitioner was represented by former Assistant
Bar Counsel James Gaither. Respondent was not present, despite issuance of proper notice.
Thereafter, Judge Bernhardt issued “Findings of Fact and Conclusions of Law,” in which he
found, by clear and convincing evidence, that Storch’s acts constituted violations of MLRPC
1.1, 1.2(a), 1.3, 1.16(a) and (d), 3.2, 3.4(a) and (c), and 8.4(a) and (d). Judge Bernhardt’s
findings of fact and conclusions of law are summarized in pertinent part as follows:
Findings of Fact
to the client to the extent permitted by other law.
5
MLRPC 3.2 provides: “A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.”
6
MLRPC 3.4 provides in pertinent part that “[a] lawyer shall not: (a) unlawfully obstruct
another party’s access to evidence or unlawfully alter, destroy or conceal a document or other
material having potential evidentiary value. A lawyer shall not counsel or assist another
person to do any such act; . . . [or] (c) knowingly disobey an obligation under the rules of a
tribunal except for an open refusal based on an assertion that no valid obligation exists. . . .”
7
MLRPC 8.4 provides in pertinent part that “[i]t is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct,
knowingly assist or induce another to do so, or do so through the acts of another; . . . [or] (d)
engage in conduct that is prejudicial to the administration of justice. . . .”
3
Respondent was admitted to the practice of law in Maryland on December 10, 1982.
She was appointed personal representative of the Estate of George Gault on or about May
2, 2007. As personal representative, Respondent failed to timely file Interim Accounts, failed
to appear for hearings before the Orphans’ Court for Howard County, and failed to file a
required certificate of service. As a result, on July 11, 2012, the Orphans’ Court for Howard
County issued an Order removing Respondent as personal representative and appointed
successor personal representative, Michael W. Davis. This Order further required
Respondent to deliver to Mr. Davis all of the estate property: approximately $50,000 in a
checking account, the decedent’s residence (worth approximately $264,000), a Charles
Schwab investment account, two IRA accounts at T.Rowe Price, and the ledgers, books, and
accountings related to the Estate. Respondent continued nonetheless to act as personal
representative of the Estate and did not turn over the estate property to Mr. Davis.
On August 29, 2012, upon Respondent’s continued failure to comply with the July 11,
2012 Order, Mr. Davis filed a Petition for Constructive Civil Contempt. The Orphans’ Court
issued a Show Cause Order for Contempt and scheduled a hearing for October 3, 2012. At
the October 3 hearing, the Orphans’ Court found Respondent in constructive civil contempt
of the July 11, 2012 Order and provided Respondent with the opportunity to purge her
contempt if she delivered the estate property to Mr. Davis by October 9, 2012. Respondent
failed to deliver the estate property to Mr. Davis by October 9, 2012. Consequently, the
Orphans’ Court issued a Show Cause Order for Contempt on October 12, 2012, requiring
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Respondent to show cause in writing as to why the court should not find her in contempt for
failure to purge her prior contempt by not delivering the estate property to Mr. Davis. The
Orphans’ Court further scheduled a hearing for October 31, 2012 and ordered Respondent
to produce all estate property to Mr. Davis in the presence of the court. Although
Respondent appeared before the Orphans’ Court on October 31, she failed to produce the
estate property at the hearing, and left during the hearing without the permission of the court.
The Orphans’ Court found Respondent in direct civil contempt of its October 3, 2012 Order
and imposed continuing fines against Respondent until she delivered the estate property to
Mr. Davis. Based on the record before us, Respondent has yet to deliver the estate property
to Mr. Davis and remains in contempt.
Conclusions of Law
Rule 1.1 requires an attorney to provide competent representation to a client by
applying the appropriate legal knowledge, skill, thoroughness, and preparation necessary for
client matters. Attorney Grievance Comm’n v. Shakir, 427 Md. 197, 205, 46 A.3d 1162,
1167 (2012). Failure to make the proper and required filings in a client matter demonstrates
a lack of the appropriate preparation and thoroughness necessary to provide competent
representation. Attorney Grievance Comm’n v. Guida, 391 Md. 33, 54, 891 A.2d 1085, 1097
(2006) (concluding that an attorney’s failure to file the necessary documents in his client’s
adoption matter demonstrated a lack of preparation and thoroughness, in violation of
MLRPC 1.1). Failure to attend a court appearance also violates Rule 1.1, absent sufficient
5
explanation. Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 74, 753 A.2d 17, 26
(2000). Here, Respondent failed to timely file Interim Accounts, failed to appear for hearings
before the Orphans’ Court, and failed to file a required certificate of service.
The above behavior also violates Rules 1.2(a) and 1.3. Rule 1.2 requires an attorney
to abide by a client’s decisions concerning the objectives of the representation and, when
appropriate, to consult with the client as to the means by which those objectives are to be
pursued. When a lawyer fails to take any steps towards the client’s objective, the lawyer
necessarily fails to abide by the client’s decision concerning that objective. Attorney
Grievance Comm’n v. Garrett, 427 Md. 209, 223, 46 A.3d 1169, 1177 (2012) (citing
Attorney Grievance Comm’n v. Granger, 374 Md. 438, 455, 823 A.2d 611, 621 (2003)).
Rule 1.3 states that a lawyer shall act with reasonable diligence and promptness in
representing a client. As personal representative of the Estate of George Gault, Respondent
had an obligation to file Interim Accounts in a timely fashion and, when necessary, appear
for hearings. Once the Orphans’ Court removed her as personal representative, Respondent
had a duty to the Estate to turn over the property in her possession to the successor personal
representative. Both the failure to file Interim Accounts and the failure to turn over the
Estate property to Mr. Davis is conduct that demonstrates a lack of diligence and
promptness.
Rule 1.16(a) requires an attorney to withdraw from representation if the representation
will result in a violation of the MLRPC or other law. Rule 1.16(d) states that upon
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termination of representation, an attorney shall take steps to protect a client’s interests. This
includes surrendering papers and property to which the client is entitled. Respondent
violated Rule 1.16(a) by continuing to act as personal representative despite Orders issued
by the Orphans’ Court. Furthermore, by failing to turn over Estate property following her
removal, Respondent violated Rule 1.16(d).
Respondent’s failure to turn over Estate property after her removal also violates Rules
3.2 and 3.4. Rule 3.2 states that a lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client. Rule 3.4(a) states, in part, that an attorney shall not
unlawfully obstruct another party’s access to evidence. In addition, Rule 3.4(c) states that
an attorney shall not knowingly disobey an obligation under the rules of a tribunal.
Respondent continually failed to turn over property despite several Orders issued by the
Orphans’ Court requiring her to appear before it and turn over property in her possession.
This unnecessarily delayed the administration of the Estate and prevented the successor
personal representative from handling the matters of the Estate. Respondent’s failure to
relinquish the Estate property also demonstrated an intentional disregard for the Orders of
the Orphans’ Court. Rule 8.4(a) states that it is professional misconduct for an attorney to
violate or attempt to violate the MLRPC. As a result of the violations above, Respondent
also violated Rule 8.4(a). Pursuant to Rule 8.4(d), it is professional misconduct for an
attorney to engage in conduct that is prejudicial to the administration of justice. Failure to
attend hearings, pursue her client’s objectives, and multiple failures to abide by the Orders
7
of the Orphans’ Court all represent conduct that is prejudicial to the administration of justice.
Discussion
In attorney discipline proceedings, this Court has original and complete jurisdiction
and conducts an independent review of the record. Attorney Grievance Comm’n v.
Jarosinski, 411 Md. 432, 448, 983 A.2d 477, 487 (2009). Where no exceptions are filed
timely to the hearing judge’s findings of fact, we “may treat the findings of fact as
established for the purpose of determining appropriate sanctions[.]” Md. Rule 16-
759(b)(2)(A). “In other words, we deem the hearing judge’s findings of fact ‘correct if (1)
they are not clearly erroneous, or (2), at the Court’s option, if neither party filed exceptions
to them.’” Attorney Grievance Comm’n v. Bell, 432 Md. 542, 558, 69 A.3d 1040, 1049
(2013) (quoting Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 868
(2013)). We review the hearing judge’s conclusions of law for legal correctness. Md. Rule
16-759(b)(1).
Neither party has taken timely exception to the hearing judge’s findings. Therefore,
we deem Judge Bernhardt’s findings of fact as established. Bell, 432 Md. at 558, 69 A.3d
at 1049. As to his conclusions of law, the hearing judge determined that Storch violated
MLRPC 1.1, 1.2(a), 1.3, 1.16(a) and (d), 3.2, 3.4(a) and (c), and 8.4(a) and (d).8 Based upon
8
We note that Storch’s misconduct occurred while she was acting as personal representative
of the Estate and not in her capacity as either the attorney for the Estate or the attorney for
the personal representative. As the Preamble (A Lawyer’s Responsibilities) to the MLRPC
states, “there are Rules that apply to lawyers who are not active in the practice of law or to
practicing lawyers even when they are acting in a nonprofessional capacity.” Md. Rule
8
our assessment of the record, we agree with the hearing judge’s conclusions of law.
Respondent failed to properly perform her duties as the personal representative of the
Estate. A personal representative is under a general duty to settle and distribute the estate in
accordance with the terms of the decedent’s will and the estates of decedents law, and do so
expeditiously. Md. Code (1974, 2011 Repl. Vol.) § 7-101 of the Estates and Trusts Article.
Section 6-303(a) of the Estates and Trusts Article provides that upon termination, a personal
representative must perform acts necessary to protect property belonging to the estate while
making timely delivery of the property to the successor representative. Here, Respondent’s
failures to make proper Interim Account filings and appear at hearings hindered the
16-812. The duties required for some non-lawyer roles have commonalities with the practice
of law, such as acting as a non-attorney fiduciary, and these roles are often performed by
attorneys because they have the appropriate legal ability. Susan J. Michmerhuizen & Peter
Geraghty, When is a Lawyer not a Lawyer?, Y OURABA (March 2015),
http://www.americanbar.org/publications/youraba/2015/march-2015/when-is-a-lawyer-no
t-a-lawyer-.html [http://perma.cc/Q2G2-WRMW] (citing C HARLES W. W OLFRAM, M ODERN
L EGAL E THICS, 98 (1986)). Estates and Trusts Article § 7-101 states that a personal
representative is a fiduciary. A fiduciary has a duty to act in the best interests of the
beneficiary; a personal representative must act in the best interests of the estate. In the case
before us, Respondent, as personal representative, failed to act for the benefit of the Estate
because she did not diligently or competently administer the Estate. Additionally, as this
Court recently pointed out in Attorney Grievance Comm’n v. Trye, a lawyer is not excused
from his or her obligation to the court and the opposing party to make reasonable efforts to
expedite litigation even though the attorney was not acting as counsel for a party in the
litigation. ___ Md. ___ (2015) (Misc. Docket AG No. 34, September Term 2014) (filed
July 27, 2015) (finding that Rules 3.2 and 3.4 were applicable to respondent when she
represented herself in her divorce proceeding). Not unlike the attorney in Trye, Storch was
not counsel of record but utilized the skills and knowledge of an attorney in her capacity as
personal representative. Therefore, Storch’s conduct as personal representative under the
MLRPC is subject to the same analysis as if she were counsel of record.
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distribution of the Estate. This conduct led to her termination and the appointment of a
successor personal representative. Respondent’s unwillingness to turn over the Estate
property to the successor personal representative, despite being held in civil contempt, has
compounded the delay in the administration of the Estate. The findings of the hearing judge
reflect Respondent’s failure to perform her duties as personal representative as prescribed
by the Estates and Trust Article.
Sanction
It is well settled that “[o]ur goal when imposing sanctions is to protect the public and
the public’s confidence in the legal profession, not to punish the erring attorney.” Attorney
Grievance Comm’n v. Frost, 437 Md. 245, 269, 85 A.3d 264, 278 (2014); see Attorney
Grievance Comm’n v. Usiak, 418 Md. 667, 689, 18 A.3d 1, 14 (2011); Attorney Grievance
Comm’n v. Tanko, 408 Md. 404, 424, 969 A.2d 1010, 1023 (2009). Sanctions protect the
public when they deter future offending conduct and remove “those unfit to continue in the
practice of law from the rolls of those authorized to practice in this State.” Attorney
Grievance Comm’n v. Mahone, 398 Md. 257, 268-69, 920 A.2d 458, 465 (2007). When
sanctions are imposed, they should be commensurate with the nature and the gravity of the
violations and the intent with which they were committed. Attorney Grievance Comm’n v.
Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003).
Petitioner recommends a sanction of indefinite suspension. Petitioner asserts that this
sanction is consistent with that imposed in prior cases involving the mishandling of an estate.
10
In Attorney Grievance Comm’n v. Kendrick, the attorney failed to competently handle an
estate and failed to turn over all assets of the Estate as well as all financial records in her
possession to the successor personal representative after she was removed. 403 Md. 489, 943
A.2d 1173 (2008). There, this Court found the respondent’s conduct was not due to greed
or dishonesty, but stubbornness over, and incompetence in, probate matters. Kendrick, 403
Md. at 522, 943 A.2d at 1191–92. Petitioner also points to Attorney Grievance Comm’n v.
Thompson, 376 Md. 500, 830 A.2d 474 (2003), where an attorney was sanctioned with
indefinite suspension for mishandling an estate, including failing to timely file reports and
accounts, failing to pay estate taxes at the time of distribution, and failing to obtain approval
from the Orphans’ Court before taking fees. In the present case, not withstanding
Respondent’s conduct, she has not filed a timely response to Petitioner’s Recommendation
for Sanctions.
Accordingly, we agree with Petitioner’s recommendation for a sanction of indefinite
suspension. In attorney discipline cases, the sanction imposed depends on the facts and
circumstances of each case, and in arriving at an appropriate sanction we “consider the nature
of the ethical duties violated in light of any aggravating or mitigating circumstances.”
Attorney Grievance Comm’n v. Paul, 423 Md. 268, 284, 31 A.3d 512, 522 (2011). By failing
to file Interim Accounts, failing to appear for hearings scheduled by the Orphans’ Court, and
failing to file a required certificate of service, Respondent failed to perform competent,
meaningful, or complete legal services. See Attorney Grievance Comm’n v. Brigerman, 441
11
Md. 23, 35, 105 A.3d 467, 474 (2014) (discussing respondent’s acceptance of fees from [a
client] and his failure to perform any legal services on her behalf beyond a five-minute
telephone call with a potential witness). Respondent exacerbated the situation by repeatedly
failing to turn over the estate property to the successor personal representative, even after the
Orphans’ Court found her to be in contempt and levied fines against her. Although there was
no finding by the hearing judge that Respondent’s conduct was due to greed or dishonesty,
that lack of a finding does not negate the seriousness of her misconduct. See Kendrick, 403
Md. at 522, 943 A.2d at 1191–92. Considering the totality of the circumstances, we conclude
that the appropriate sanction for Respondent’s misconduct is an indefinite suspension.
IT IS SO ORDERED. RESPONDENT SHALL PAY
ALL COSTS AS TAXED BY THIS COURT,
INCLUDING THE COST OF TRANSCRIPTS,
PURSUANT TO MARYLAND RULE 16-761 FOR
WHICH SUM JUDGMENT IS ENTERED IN
FAVOR OF THE ATTORNEY GRIEVANCE
COMMISSION AGAINST PATRICIA DUVALL
STORCH.
12