Attorney Grievance Commission v. Gray , 436 Md. 513 ( 2014 )

Attorney Grievance Commission of Maryland v. Melissa Donnelle Gray, Misc. Docket
AG No. 52, September Term, 2012
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION – Court
of Appeals indefinitely suspended from the practice of law in Maryland lawyer who had
been reprimanded and suspended for sixty days, and who failed to: (1) respond to
discovery requests or timely propound discovery requests on behalf of client; (2) timely
submit proposed judgment in compliance with court order; and (3) respond to Bar
Counsel‟s inquiries concerning representation of client. Such conduct violated Maryland
Lawyers‟ Rules of Professional Conduct 1.1 (Competence), 1.3 (Diligence), 3.2
(Expediting Litigation), and 8.1(b) (Failing to Respond to Lawful Demand for
Information from Disciplinary Authority).
Circuit Court for Baltimore County
Case No. C-12-11190
Argued: January 14, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 52
September Term, 2012
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
MELISSA DONNELLE GRAY
______________________________________
Barbera, C.J.
Harrell
Greene
Adkins
McDonald
Watts
Cathell, Dale R. (Retired,
Specially Assigned),
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: January 24, 2014
This attorney discipline proceeding concerns a Maryland lawyer who failed to: (1)
respond to discovery requests or timely propound discovery requests on behalf of her
client; (2) timely submit a proposed judgment in compliance with a court order; and (3)
respond to Bar Counsel‟s inquiries concerning her representation of a client.
Melissa Donnelle Gray (“Gray”), Respondent, a member of the Bar of Maryland,
was retained by Carmen Bustamante (“Ms. Bustamante”) in connection with a divorce
case. Ms. Bustamante filed a complaint against Gray with the Attorney Grievance
Commission of Maryland (“the Commission”), Petitioner.
On October 23, 2012, in this Court, Bar Counsel filed a “Petition for Disciplinary
or Remedial Action” against Gray, charging her with violating Maryland Lawyers‟ Rules
of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.3 (Diligence), 3.2 (Expediting
Litigation), and 8.1(b) (Failing to Respond to Lawful Demand for Information from
Disciplinary Authority). On October 24, 2012, we referred this attorney discipline
proceeding to the Honorable Susan Souder (“the hearing judge”) of the Circuit Court for
Baltimore County (“the circuit court”). On May 6, 2013, the hearing judge conducted a
hearing. On June 20, 2013, the hearing judge filed in this Court findings of fact and
conclusions of law, concluding that Gray violated MLRPC 1.1, 1.3, 3.2, and 8.1(b).1
1
The hearing judge‟s findings of fact and conclusions of law were dictated into the
record at the hearing and submitted to this Court in the form of a three-page excerpt from
the transcript of that hearing. We note that the findings of fact and conclusions of law
submitted in this case are difficult to follow as the information is not presented in any
recognizable, organized or chronological manner. Although Maryland Rule 16-757(c)
permits a hearing judge to dictate into the record the judge‟s findings of fact and
conclusions of law, we recommend that, when utilizing dictation, a hearing judge employ
(Continued...)
On January 14, 2014, we heard oral argument.2 For the below reasons, we
indefinitely suspend Gray from the practice of law in Maryland.
I. Hearing Judge’s Findings of Fact
In her opinion, the hearing judge found the following facts, which we summarize.3
On June 14, 1998, this Court admitted Gray to the Bar of Maryland. At the time
of her alleged misconduct, Gray maintained an office for the practice of law in Towson,
Maryland.
In November 2010, Ms. Bustamante retained Gray to represent her in connection
with her divorce. On January 20, 2011, on behalf of Ms. Bustamante, Gray filed in the
circuit court a Complaint for Limited Divorce against Mr. Bustamante.
In a scheduling order issued in the divorce case, the circuit court ordered that
discovery be completed by July 25, 2011. In March 2011, Mr. Bustamante‟s counsel sent
Interrogatories and a Request for Production of Documents to Gray. Gray failed to
respond to the Interrogatories or Request for Production of Documents. On June 30,
2011, Mr. Bustamante‟s counsel filed a Motion to Compel Discovery. Gray failed to
respond to the motion or to otherwise prepare written responses to the Interrogatories and
the same care and precision as in preparing and filing a written statement of findings of
fact and conclusions of law.
2
Gray did not appear at oral argument. Bar Counsel submitted on the “Petitioner‟s
Exceptions and Recommendation for Sanction” and its recommendation for an indefinite
suspension.
3
We have supplemented the hearing judge‟s findings of fact with undisputed
information contained in the “Petition for Disciplinary or Remedial Action” and evidence
adduced at the hearing of May 6, 2013, including the date of Gray‟s admission to the Bar,
the location of her practice, the date on which Ms. Bustamante retained Gray, and the
date on which Gray filed the Complaint for Limited Divorce.
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Request for Production of Documents. On December 9, 2011, over four months after the
deadline for completion of discovery, Gray sent discovery requests to Mr. Bustamante‟s
counsel. And, despite Ms. Bustamante‟s claims that Mr. Bustamante had been misusing
and concealing assets, Gray failed to obtain Mr. Bustamante‟s testimony under oath in
response to interrogatories before the scheduled trial date.
On February 6, 2012, the parties reached a settlement, which was placed on the
record in the circuit court, and the circuit court ordered the parties to submit a proposed
Judgment of Absolute Divorce within ten days. Gray agreed to prepare the proposed
judgment. Although Gray testified before the hearing judge in the present case that she
sent a proposed judgment to Mr. Bustamante‟s counsel via e-mail, Gray failed to
corroborate that claim by producing a copy of that e-mail or other documentation
indicating that she complied with the circuit court‟s order that a proposed judgment be
submitted within ten days. In a letter dated February 22, 2012, the law clerk for the
circuit court judge assigned to the divorce action reminded Gray that the proposed
judgment was due. On April 11, 2012, no response having been received, the circuit
court ordered counsel for both parties to appear in chambers on April 30, 2012, with a
proposed judgment. On May 4, 2012, a Judgment of Absolute Divorce was entered.
In a letter dated April 4, 2012, the Commission notified Gray of Ms. Bustamante‟s
complaint and requested a written response to the allegations in the complaint within ten
days. In a letter dated April 30, 2012, the Commission again notified Gray of the
complaint. Gray failed to respond to either letter.
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II. Standard of Review
Neither party excepts to any of the hearing judge‟s findings of fact; thus, we “treat
the findings of fact as established[.]” Md. R. 16-759(b)(2)(A). We review without
deference the hearing judge‟s conclusions of law. See Md. R. 16-759(b)(1) (“The Court
of Appeals shall review de novo the circuit court judge‟s conclusions of law.”).
III. Discussion
A. Violations of MLRPC
Neither party excepts to any of the hearing judge‟s conclusions of law. For the
below reasons, we uphold all of the hearing judge‟s conclusions of law.
MLRPC 1.1 (Competence) and MLRPC 1.3 (Diligence)
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” MLRPC 1.1. “Compliance with [MLRPC
1.1] requires more than knowing what to do. It requires applying the knowledge to the
client‟s problem. . . . „Evidence of a failure to apply the requisite thoroughness and/or
preparation in representing a client is sufficient alone to support a violation of [MLRPC]
1.1.‟” Attorney Grievance Comm‟n v. McCulloch, 404 Md. 388, 397-98, 946 A.2d 1009,
1015 (2008) (quoting Attorney Grievance Comm‟n v. Guida, 391 Md. 33, 54, 891 A.2d
1085, 1097 (2006)). “MLRPC 1.1 is violated when an attorney fails to act or acts in an
untimely manner, resulting in harm to his or her client.” Attorney Grievance Comm‟n v.
Garrett, 427 Md. 209, 222, 46 A.3d 1169, 1177 (2012) (citations and internal quotation
marks omitted).
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“A lawyer shall act with reasonable diligence and promptness in representing a
client.” MLRPC 1.3. “An attorney violates [MLRPC 1.3] when he/she takes no action
whatsoever in representing his/her client.” Attorney Grievance Comm‟n v. Shakir, 427
Md. 197, 205, 46 A.3d 1162, 1167 (2012) (citation omitted). For example, where an
attorney “fail[s] to pursue [a] claim after filing [a] complaint,” the attorney
“demonstrat[es] incompetence and insufficient diligence in the matter, in violation of
M[L]RPC 1.1 and 1.3 respectively.” Attorney Grievance Comm‟n v. Patterson, 421 Md.
708, 737, 28 A.3d 1196, 1213 (2011).
Here, clear and convincing evidence supports the hearing judge‟s conclusion that
Gray violated MLRPC 1.1 and 1.3. After filing the complaint for limited divorce on
behalf of Ms. Bustamante, Gray not only failed to take appropriate and timely action to
pursue her client‟s claim, but she also failed to act diligently in representing Ms.
Bustamante. Despite Ms. Bustamante‟s allegations that Mr. Bustamante was misusing
and concealing assets, Gray failed to inquire into or to obtain Mr. Bustamante‟s
testimony under oath on the matter, either in a deposition or in response to properly
propounded interrogatories. Indeed, Gray failed to timely propound any discovery
requests at all on behalf of Ms. Bustamante, sending her first set of discovery requests to
Mr. Bustamante‟s counsel over four months after the deadline for completion of
discovery had passed. Moreover, Gray failed to respond to discovery requests
propounded by Mr. Bustamante‟s counsel, including Interrogatories and a Request for
Production, and failed to respond when Mr. Bustamante‟s counsel filed a Motion to
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Compel responses to the discovery requests. In short, Gray failed to respond whatsoever
to any discovery request served by Mr. Bustamante‟s counsel.
MLRPC 3.2 (Expediting Litigation)
“A lawyer shall make reasonable efforts to expedite litigation consistent with the
interests of the client.” MLRPC 3.2. “An attorney violates [MLRPC 3.2] by delaying to
take fundamental litigation steps in pursuit of the client‟s interest.” Garrett, 427 Md. at
226, 46 A.3d at 1179 (citations omitted). For example, “an attorney who fails to comply
with discovery requests, and attempts to mitigate his or her shortcomings with „cryptic
excuses,‟ violates MLRPC 3.2.” Attorney Grievance Comm‟n v. Brown, 426 Md. 298,
322-23, 44 A.3d 344, 359 (2012) (citation omitted).
Here, clear and convincing evidence supports the hearing judge‟s conclusion that
Gray violated MLRPC 3.2. As discussed above, Gray utterly failed to comply with
discovery requests and to respond to a motion to compel responses to the discovery
requests. Gray also delayed in taking necessary and required steps on behalf of Ms.
Bustamante, vividly demonstrated by her failure to timely submit a proposed Judgment of
Absolute Divorce. Although Gray agreed to prepare the proposed judgment by February
16, 2012, as ordered by the circuit court, and even though the circuit court judge‟s law
clerk had sent Gray a reminder letter dated February 22, 2012, as of April 11, 2012, the
circuit court had not received the proposed judgment, and was required to order counsel
for both parties to appear in chambers. As a result of Gray‟s failure to timely prepare the
proposed judgment as ordered, a Judgment of Absolute Divorce was not entered in the
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divorce case until May 4, 2012, almost three months after the parties had agreed upon a
settlement.
MLRPC 8.1(b) (Failing to Respond to Lawful Demand for Information from
Disciplinary Authority)
“[A] lawyer . . . in connection with a disciplinary matter, shall not . . . knowingly
fail to respond to a lawful demand for information from [a] disciplinary authority[.]”
MLRPC 8.1(b). Pursuant to MLRPC 8.1(b), “an attorney must answer timely requests
from the [] Commission regarding a complaint in a potential disciplinary matter.”
Brown, 426 Md. at 323, 44 A.3d at 359 (citation omitted).
Here, clear and convincing evidence supports the hearing judge‟s conclusion that
Gray violated MLRPC 8.1(b). It is undisputed that Gray failed to respond to two letters
from the Commission, dated April 4, 2012, and April 30, 2012, regarding Ms.
Bustamante‟s complaint.
B. Sanction
Bar Counsel recommends that this Court indefinitely suspend Gray from the
practice of law in Maryland. Gray has not filed a recommendation for sanction.
In Attorney Grievance Comm‟n v. Dore, 433 Md. 685, 717, 73 A.3d 161, 180
(2013), we stated:
When we impose sanctions, our goal is not to punish the [lawyer], but
rather to protect the public and the public‟s confidence in the legal
profession [and] to deter other lawyers from violating the [MLRPC]. To
achieve this goal, the sanction should be commensurate with the nature and
the gravity of the misconduct and the intent with which it was committed.
In determining an appropriate sanction, we often refer to the American Bar
Association‟s Standards for Imposing Lawyer Sanctions, which focus on
the nature of the ethical duty violated, the lawyer‟s mental state, the extent
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of the actual or potential injury caused by the lawyer‟s misconduct, and any
aggravating or mitigating [factor]s.
(Second alteration in original) (citations and internal quotation marks omitted).
Here, as to the nature of the ethical duty violated, Gray violated MLRPC 1.1, 1.3,
and 3.2 by failing to competently and diligently represent Ms. Bustamante, and by failing
to take timely and appropriate actions to expedite litigation. Gray also violated MLRPC
8.1(b) by ignoring requests from the Commission to furnish information relevant to Ms.
Bustamante‟s complaint and, indeed, by failing to respond at all. As to Gray‟s state of
mind, Gray knowingly disregarded requests from the Commission, and either knowingly
or negligently mishandled Ms. Bustamante‟s case by failing to respond to or propound
discovery requests and by failing to submit a proposed judgment within the timeframe
ordered by the circuit court. As to the actual or potential injury that Gray‟s misconduct
caused, Gray‟s misconduct negatively impacted the efficient operation of the courts by
delaying resolution of the divorce case and causing Mr. Bustamante‟s counsel to file a
motion to compel discovery responses, and her misconduct also negatively impacted both
Ms. Bustamante‟s and the public‟s perception of the legal profession. Gray‟s refusal to
comply with the requests of the Commission evidenced a disregard of the MLRPC and
the attorney discipline process.
In Attorney Grievance Comm‟n v. Davy, 435 Md. 674, __, 80 A.3d 322, 342-43
(2013), we stated:
Aggravating factors include: (a) prior disciplinary offenses; (b)
dishonest or selfish motive; (c) pattern of misconduct; (d) multiple
offenses; (e) bad faith obstruction of the [attorney] disciplinary
proceeding[] by intentionally failing to comply with rules or orders of the
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[Commission]; (f) submission of false evidence, false statements, or other
deceptive practices during the [attorney] disciplinary proce[eding]; (g)
refusal to acknowledge wrongful nature of conduct; (h) vulnerability of the
victim; (i) substantial experience in the practice of law; [and] (j)
indifference to making restitution.
(Some alterations in original) (citation and paragraph breaks omitted).
Here, we note at least three aggravating factors. First, Gray has two prior
disciplinary offenses. In Attorney Grievance Comm‟n v. Gray (“Gray I”), 421 Md. 92,
25 A.3d 219 (2011), this Court reprimanded Gray for violating MLRPC 1.3, 1.4, and
8.1(b). And, in Attorney Grievance Comm‟n v. Gray (“Gray II”), 433 Md. 516, 521-23,
524-25, 533, 72 A.3d 174, 177-78, 179-80, 184 (2013), this Court suspended Gray from
the practice of law for sixty days for violating MLRPC 1.3, 1.4, 1.15, and 8.1(b).4
Second, Gray has engaged in a pattern of misconduct, violating MLRPC 1.3 and 8.1(b)
on two prior occasions in addition to the instant case. Third, Gray has obviously
committed multiple offenses. As discussed above, in her representation of Ms.
Bustamante, Gray violated MLRPC 1.1, 1.3, 3.2, and 8.1(b).
The following constitute mitigating factors:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or
selfish motive; (c) personal or emotional problems; (d) timely good faith
efforts to make restitution or to rectify consequences of misconduct; (e) full
and free disclosure to [the Commission] or cooperative attitude toward [the
attorney discipline] proceeding[]; (f) inexperience in the practice of law; (g)
character or reputation; (h) physical disability; (i) mental disability or
4
In Gray II, 433 Md. at 533, 72 A.3d at 184, we held: “In light of the violations
committed by [Gray], especially in respect to her failure to cooperate with Bar Counsel
and her prior disciplinary matters and in light of our prior cases aforesaid, in which we
have sanctioned attorneys for somewhat similar violations (as to severity of conduct), we
hold that the proper sanction in the present case is a 60 day suspension.”
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chemical dependency including alcoholism or drug abuse when: (1) there is
medical evidence that the [lawyer] is affected by a chemical dependency or
mental disability; (2) the chemical dependency or mental disability caused
the misconduct; (3) the [lawyer]‟s recovery from the chemical dependency
or mental disability is demonstrated by a meaningful and sustained period
of successful rehabilitation; and (4) the recovery arrested the misconduct
and recurrence of that misconduct is unlikely; (j) delay in [the attorney]
disciplinary proceeding[]; (k) imposition of other penalties or sanctions; (l)
remorse; [and] (m) remoteness of prior offenses.
Davy, 435 Md. at __, 80 A.3d at 344 (some alterations in original) (citation and
paragraph breaks omitted).
Here, Gray did not testify at the hearing as to any mitigating factors, nor did the
hearing judge find any mitigating factors.
In Attorney Grievance Comm‟n v. Fezell, 361 Md. 234, 254-56, 760 A.2d 1108,
1119-20 (2000), where an attorney violated MLRPC 1.3, 1.4, 3.2, and 8.1(b), and where
his “repeated refusal to comply with the requests of Bar Counsel demonstrated a
complete „disregard of the spirit and intent of the [MLRPC,]‟” we suspended the attorney
for sixty days. We stated that the attorney‟s “violations of the [MLRPC] regarding
diligence, communication, expediting litigation, and responding to lawful demands of
Bar Counsel [were] serious.” Id. at 256, 760 A.2d at 1120. We imposed the sixty-day
suspension rather than a greater sanction, however, because the attorney had been a
member of the Bar of Maryland for over twenty years and had no prior disciplinary
offenses. Id. at 254, 760 A.2d at 1119.
In Attorney Grievance Comm‟n v. Nichols, 405 Md. 207, 212, 216, 218, 950 A.2d
778, 782, 784, 785 (2008), where an attorney violated MLRPC 1.1, 1.3, 1.5(a), 1.15(a),
1.15(d) and (e), 1.16(d), and 8.1(b) in his representation of a client in a bankruptcy
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matter, we indefinitely suspended the attorney. In so ordering, we stated: “[The
attorney]‟s misconduct was due neither to dishonesty nor to criminal conduct, but rather
due to lack of diligence as well as incompetence in bankruptcy matters. Indeed, this is
[the attorney]‟s first disciplinary proceeding in over thirteen years of practicing law.” Id.
at 218, 950 A.2d at 785.
In this case, in light of existing caselaw and taking into account the aggravating
factors present, including Gray‟s prior disciplinary offenses and violations of multiple
MLRPC, and the sanctions ordered by this Court in those prior disciplinary offenses (i.e.,
a reprimand and sixty-day suspension)5–which, we note, arose out of violations of two of
the same MLRPC violated here, MLRPC 1.3 and 8.1(b)–we conclude that the appropriate
sanction for Gray‟s violations of the MLRPC is an indefinite suspension from the
practice of law in Maryland. The suspension shall begin thirty days after the date on
which this Opinion is filed.
IT IS SO ORDERED; RESPONDENT SHALL
PAY ALL COSTS AS TAXED BY THE CLERK
OF THIS 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 MELISSA DONNELLE GRAY.
5
As stated above, in Gray I, 421 Md. 92, 25 A.3d 219, this Court reprimanded
Gray for violating MLRPC 1.3, 1.4, and 8.1(b). And, in Gray II, 433 Md. at 521-23, 524-
25, 533, 72 A.3d at 177-78, 179-80, 184, this Court suspended Gray from the practice of
law for sixty days for violating MLRPC 1.3, 1.4, 1.15, and 8.1(b).
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