Attorney Grievance v. Maldonado , 463 Md. 11 ( 2019 )

Attorney Grievance Commission of Maryland v. Melinda Maldonado, Misc. Docket AG
No. 11, September Term, 2017. Opinion by Getty, J.
ATTORNEY DISCIPLINE — SANCTIONS—DISBARMENT
The Court of Appeals disbarred an attorney who called her client’s doctor, held herself out
as a medical doctor, and sought the alteration of her client’s medical records. When the
attorney was unable to reach the doctor, the attorney continued to repeatedly call the
doctor’s office over the course of two days. Further, while only barred in the District of
Columbia, and without a pro hac vice sponsor, this attorney drafted and submitted various
pleadings on behalf of her client in Maryland. Finally, this attorney failed to obtain the
trial transcripts required for her client’s appeal in the Maryland Court of Special Appeals
which resulted in the dismissal of her client’s appeal. These actions violated the Maryland
Lawyers’ Rules of Professional Conduct Rules: 1.1 (Competence); 4.1 (Truthfulness in
Statements to Others); 5.5 (Unauthorized Practice of Law; Multijurisdictional Practice of
Law); 8.1 (Bar Admission and Disciplinary Matters); and 8.4(a), (c), and (d) (Misconduct).
Circuit Court for Montgomery County
Case No. 433322-V
Argued: November 5, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 11
September Term, 2017
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
MELINDA MALDONADO
Barbera, C.J.
Greene,
McDonald,
Watts,
Hotten,
Getty,
Adkins, Sally D.,
(Senior Judge, Specially Assigned)
JJ.
Opinion by Getty, J.
Filed: March 6, 2019
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2019-03-06
11:17-05:00
Suzanne C. Johnson, Clerk
This attorney discipline case involves conduct of an out-of-state attorney during her
representation of a Maryland resident in a toxic mold case. While representing her client,
the attorney called her client’s doctor, held herself out as a medical doctor, and sought the
alteration of her client’s medical records. When the attorney was unable to reach the
doctor, the attorney repeatedly called the doctor’s office over the course of two days and
eventually made unprofessional comments about the doctor. Furthermore, while only
barred in the District of Columbia, and without a pro hac vice sponsor, the attorney drafted
and filed various pleadings on behalf of her client before Maryland courts. Finally, this
attorney failed to obtain the trial transcripts required for her client’s appeal in the Maryland
Court of Special Appeals which resulted in the dismissal of that appeal. For the reasons
explained below, we hold that this attorney’s conduct merits disbarment.
BACKGROUND
Procedural Context
On May 23, 2017, the Attorney Grievance Commission of Maryland, acting through
Bar Counsel filed a Petition for Disciplinary or Remedial Action (“Petition”) with the Court
of Appeals alleging that Melinda Maldonado (“Ms. Maldonado”) had violated the
Maryland Lawyers’ Rules of Professional Conduct (“MLRPC” or “Rules”).1 See Md. Rule
1
Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of
Professional Conduct (“MARPC”) and recodified in Title 19 of the Maryland Rules. Since
Ms. Maldonado’s misconduct occurred before and after the effective date of the
recodification of the rules of professional conduct, she committed violations of the same
rules of professional conduct under both the MLRPC and the MARPC. For simplicity, and
because there is no substantive difference in the two codifications of the rules, we shall use
the shorter designations of the MLRPC, e.g., “Rule 1.1.”
19-721. Although not admitted to practice in Maryland, Ms. Maldonado is subject to the
disciplinary authority of Maryland pursuant to Rule 8.5(a)(2). The Petition alleged that
Ms. Maldonado, during her representation of Gladys Duren (“Ms. Duren”), violated the
following Rules: 1.1 (Competence); 4.1 (Truthfulness in Statements to Others); 4.4
(Respect for Rights of Third Persons); 5.5 (Unauthorized Practice of Law;
Multijurisdictional Practice of Law); 8.1 (Bar Admission and Disciplinary Matters); and
8.4 (Misconduct).2
We designated Judge Deborah L. Dwyer (“the hearing judge”) of the Circuit Court
for Montgomery County by Order dated June 1, 2017 to conduct a hearing concerning the
alleged violations and to provide findings of fact and recommended conclusions of law.
See Md. Rule 19-722(a). The Clerk of the Circuit Court for Montgomery County (“Clerk”)
issued a summons to be served upon Ms. Maldonado, and on June 19, 2017, Bar Counsel
emailed the petition, transmittal order, and summons to Ms. Maldonado and asked if she
would consent to electronic service of process. Ms. Maldonado never responded.
Bar Counsel retained a process server to serve Ms. Maldonado. The process server
was unsuccessful. As a result, the Clerk reissued the summons. Bar Counsel again emailed
the petition, transmittal order, and summons on August 29, 2017 to Ms. Maldonado to
request electronic service of process. Ms. Maldonado responded to Bar Counsel’s request
two days later and stated that she refused to accept electronic service of process. The
process server also attempted service upon Ms. Maldonado again in person and failed.
2
Bar Counsel later withdrew its Rule 8.1 violation allegation.
2
As a result of these interactions, Bar Counsel filed a Motion to Permit Service Upon
Employee Designated by the Client Protection Fund of the Bar of Maryland pursuant to
Maryland Rule 19-723(b). Bar Counsel was successful in serving the Executive Director
of the Client Protection Fund of the Bar of Maryland.
Ms. Maldonado failed to file a timely answer, causing Bar Counsel to file a request
for an order of default. Eventually, Ms. Maldonado retained Joseph A. Rillotta, Esquire
and Margaret E. Matavich, Esquire who filed an opposition to the motion for order of
default. In response, Bar Counsel consented to an extension of time for Ms. Maldonado to
file an answer. Ms. Maldonado filed her answer on December 19, 2017, and Bar Counsel
withdrew its motion.
The hearing judge issued a scheduling order setting forth deadlines to propound and
to complete discovery. Bar Counsel promptly served discovery within the times set forth
in the scheduling order. During this time, Ms. Maldonado sought to continue the discovery
deadlines because she wished to proceed with new counsel. Bar Counsel opposed any
continuation of this matter noting that Ms. Maldonado had already delayed the proceeding
by evading service of process and failing to file a timely answer. Ms. Maldonado’s motion
was ultimately denied.
Mr. Rillotta and Ms. Matavich filed a Motion to Withdraw as Counsel pursuant to
Maryland Rule 2-132(b). Mark G. Chalpin, Esquire entered his appearance on behalf of
Ms. Maldonado. A few weeks later, Mr. Chalpin moved to withdraw his appearance due
to “irreconcilable differences” with Ms. Maldonado. Ms. Maldonado, now proceeding pro
3
se, filed a Motion to Reconsider the Court’s Order regarding the scheduling order. This
motion was also denied.
On March 22, 2018, Bar Counsel filed a Motion for Sanctions based on Ms.
Maldonado’s failure to provide responses to Bar Counsel’s Interrogatories, Requests for
Production of Documents, and Requests for Admissions of Fact and Genuineness of
Documents. Ms. Maldonado, now represented by William C. Brennan, Esquire, and
Nicolas G. Madiou, Esquire, filed an Opposition to Petitioner’s Motion for Sanctions. Ms.
Maldonado stated that her failure to timely answer discovery was due to illness and issues
stemming from changes in representation. The hearing judge held the motion sub curia to
give the parties additional time to resolve their discovery dispute. On April 1, Ms.
Maldonado provided Answers to Petitioner’s Interrogatories; on April 10, she provided
responses to Bar Counsel’s Requests for Admissions of Fact and Genuineness of Law; and
on April 20, Ms. Maldonado provided a partial response to Bar Counsel’s Request for
Production of Documents. As a result of her incomplete discovery responses, the hearing
judge granted in part and denied in part Bar Counsel’s Motion for Sanctions. The hearing
judge precluded Ms. Maldonado from introducing any documents at trial which were not
produced to Bar Counsel during discovery.
The evidentiary hearing took place over the course of two days on April 30 and May
1. At the evidentiary hearing, Bar Counsel and Ms. Maldonado presented evidence and
several witnesses testified. The hearing judge submitted her findings of fact and
conclusions of law by a written opinion to this Court. In her recommended conclusions of
4
law, the hearing judge found by clear and convincing evidence that Ms. Maldonado
violated Rule 1.1, Rule 4.1, Rule 4.4, Rule 5.5, and Rule 8.4 (a), (c), and (d).
On August 7, 2018, Ms. Maldonado filed a motion in this Court titled as follows:
Respondent’s Motion to Dismiss this Prolonged (Almost Three Years)
Unethical and Immoral Defamation, Harassment & Interference with
Underlying Toxic Mold Litigation by Petitioner, Attorney Grievance
Commission (AGC) of Maryland. Alternatively, Respondent Motion for a
Rehearing due to Egregious, Ineffective Assistance of Counsel by William
C. Brennan & Nicholas Madiou & Due to Bias of Judge Debra Dwyer,
Motions for a Change of Venue to Anne Arundel County, Judge Ronald
Silkworth (due to County of Original Jurisdiction of Underlying Toxic Mold
Case, Judge Silkworth’s Familiarity w/Issue of Petitioner’s, AGC’s, Pattern
& Practice of Defaming & Harassing Respondents while Aiding & Abetting
Defense Law Firms Representing Real Estate Companies who File
Grievances Against Opposing, Plaintiffs’ Counsel (Respondents) to Disrupt
Underlying Litigation all in the Name of Money.
(“First Motion”). Two days later, Ms. Maldonado filed a second motion entitled:
Pending this Honorable Court’s Review of Respondent’s Definitive
Submissions on 8-7-18: Motion to Dismiss, and, Alternatively, Request for
a Rehearing due to Ineffective Assistance of Counsel & Biased/Legal
Errors/Incorrect Findings of Facts Based on False Hearsay by Judge Dwyer;
Motion for Change of Venue to Anne Arundel County Before Judge Ronald
Silkworth Given Original Jurisdiction of Underlying Toxic Mold Case and
Judge Silkworth’s Experience with AGC-Respondent Hereby Inherently
Submits this Motion to Extend Time to File Exceptions Document &
Opposition to Motion for Sanctions & Will be Submitting in Turn
Respondent’s Motion for Sanctions Against the AGC/Bar Counsel & a
Supplement to Motion to Dismiss.
(“Second Motion”). As to her First Motion, this Court ordered action deferred pending
oral argument. This Court granted her Second Motion to the extent that this Court
permitted Ms. Maldonado to file any exceptions on or before September 5, 2018.
Bar Counsel took no exceptions and Ms. Maldonado filed numerous exceptions to
the hearing judge’s findings of fact and recommended conclusions of law. Ms. Maldonado
5
filed another motion to dismiss, entitled Respondent’s Motion to Dismiss Part 2: (“Third
Motion”) on October 5, 2018 and filed an amended motion to dismiss, also entitled
Respondent’s Motion to Dismiss Part 2: (“Fourth Motion”) two days later. We heard oral
argument in this matter on November 5, 2018.
Facts
We begin with a summary of the hearing judge’s factual findings. Ms. Maldonado
has never been barred in Maryland. She was admitted to the Bar of the District of Columbia
on November 14, 2003. Since then, she has maintained a law office in Arlington, Virginia
and has focused on representing personal injury clients, specifically the practice of toxic
mold litigation. This matter involves multiple instances of misconduct stemming from a
toxic tort action filed in Maryland in the Circuit Court for Anne Arundel County.
Ms. Maldonado’s Unauthorized Practice of Law
In the summer of 2013, David Haynes, Esquire, referred Ms. Duren, a Maryland
resident, to Ms. Maldonado. Ms. Duren sought to sue her former landlord, Home
Properties Resident Services, Inc. (“Home Properties”), because she alleged she became ill
from toxic mold infestation in her rental townhome in Glen Burnie, Maryland. After
meeting with Ms. Duren, Ms. Maldonado drafted a complaint. With Ms. Maldonado’s
assistance, Ms. Duren signed the complaint, indicated she was proceeding pro se, and filed
the complaint with the Circuit Court for Anne Arundel County on April 24, 2014. The
case was assigned case number 02-C-14-187157. Ms. Maldonado also filled out the case
information report for Ms. Duren which Ms. Duren also signed and filed pro se. Ms.
6
Maldonado drafted an amended complaint that Ms. Duren signed and filed. The amended
complaint continued to indicate that Ms. Duren was proceeding pro se.
Ms. Duren and Ms. Maldonado retained Christopher T. Nace, Esquire, and Paulson
& Nace, PPLC to assist in the lawsuit. The retainer agreement between Ms. Maldonado,
Ms. Duren, and Mr. Nace stated:
This retainer agreement does not cover any appeals which may need to be
filed on behalf of us as a consequence of an adverse event in my case. If
Paulson & Nace, PPLC agrees to prosecute such an appeal on my behalf,
then a new retainer agreement may be drawn up.
The retainer agreement stated further, “[i]f Paulson & Nace, PPLC comes to the conclusion
that the case is non-meritorious or that it would be economically unsound to proceed,
Paulson & Nace, PPLC reserves the right to seek its withdrawal.”
Mr. Nace filed a motion for special admission pro hac vice on Ms. Maldonado’s
behalf. The motion was granted and the order granting the motion specifically stated, “the
presence of Maryland counsel, Christopher T. Nace, Esquire, is not waived, and Maryland
counsel must appear at all proceedings and co-sign all pleadings and motions.”
James S. Liskow, Esquire, and Emily F. Belanger, Esquire, of DeCaro, Doran,
Siciliano, Gallagher & DeBlasis, LLP represented Home Properties. A jury trial took place
between July 28–30, 2015. At the end of Ms. Duren’s case, Mr. Liskow moved for a
directed verdict. The circuit court granted the motion and entered judgment in favor of
Home Properties.
After the circuit court trial, Mr. Nace filed a notice of appeal with the circuit court
pursuant to Maryland Rule 8-201(a) to preserve Ms. Duren’s right of appeal. Shortly after
7
the notice of appeal, Mr. Nace informed Ms. Duren that he and his firm would not be
entering into a new agreement for services related to the appeal and would be withdrawing
as counsel of record. Ms. Duren consented.
Mr. Nace informed Ms. Maldonado about his withdrawal from the appeal through
email and stated: “I don’t believe that you can appear at the Court of Special Appeals, but
I am not certain.” Ms. Maldonado responded and stated, “Yes, agreed. Maryland [c]ounsel
is required.” However, after Mr. Nace withdrew, Ms. Maldonado continued to work on
the case without a pro hac vice sponsor. Ms. Maldonado drafted pleadings and briefs for
Ms. Duren to sign pro se and filed those pleadings in the Court of Special Appeals on
behalf of Ms. Duren.
Eventually, Home Properties moved to dismiss the appeal pursuant to Maryland
Rule 8-602 based on Ms. Duren’s failure to obtain the trial transcript pursuant to Maryland
Rule 8-413(a)(2). The Court of Special Appeals denied the motion without prejudice and
ordered Ms. Duren to “take all steps necessary to cause all transcripts necessary for this
Appeal to be filed in the Circuit Court for Anne Arundel County on or before February 1,
2016.” The transcripts were never filed. Home Properties filed a second Motion to Dismiss
which the Court of Special Appeals granted.
Ms. Maldonado drafted Appellant’s Motion for Reconsideration of: Dismissal,
Automatic Retrial, Extension of Time as Court Deems Reasonable & Waiver of Fees Given
Severe Disability (“Motion for Reconsideration”). Ms. Maldonado typed Ms. Duren’s
electronic signature with Ms. Duren’s consent and electronically filed the document with
8
Ms. Duren’s email address. The Court of Special Appeals denied the Motion for
Reconsideration and issued a Mandate.
Next, Ms. Maldonado drafted a Petition for Writ of Certiorari for Ms. Duren. Ms.
Maldonado typed Ms. Duren’s electronic signature and electronically filed the Petition for
Writ of Certiorari using Ms. Duren’s email address on April 27, 2016 with this Court. The
Petition stated Ms. Duren was proceeding pro se. Ms. Maldonado also drafted the
Certificate of Word Count and Compliance for Ms. Duren, typed Ms. Duren’s electronic
signature, and electronically filed the document using Ms. Duren’s email address. Again,
on June 14 and June 19, Ms. Maldonado drafted, typed Ms. Duren’s electronic signature,
and electronically filed two documents entitled Pro Se Petitioner’s Reply-Part 1-to
Respondents’ Answer to Petition for Writ of Certiorari and Pro Se Petitioner’s Reply-Part
2-to Respondent’s Answer to Petition for Writ of Certiorari.
This Court denied the Petition for Writ of Certiorari as untimely filed. Ms.
Maldonado then drafted Pro Se & Severely Disabled Petitioner’s Motion for
Reconsideration of Dismissal & Demand to Reinstate Case due to Early Not Late Filing,
typed Ms. Duren’s electronic signature, and electronically filed the document using Ms.
Duren’s email address. We denied the motion.
After the denial, Ms. Maldonado drafted a Petition for Writ of Certiorari (“Petition”)
to the Supreme Court of the United States. Again, the Petition stated Ms. Duren was
proceeding pro se and Ms. Duren signed the Petition. Ms. Duren consented to the entry of
appearances of Ms. Maldonado and Relinda Louisy, Esquire, as her attorneys before the
9
Supreme Court. Ultimately, the Supreme Court issued an Order denying the Petition for
Writ of Certiorari.
Ms. Maldonado’s Communications with the Office of John Wiley, M.D.
On February 9, 2015, Emily Belanger, Esquire, an attorney for Home Properties,
issued a subpoena to Dr. John Wiley, a pulmonologist who treated Ms. Duren at Baltimore
Washington Medical Center (“BWMC”). Ms. Maldonado called Dr. Wiley’s office on
July 21, 2015 at 10:13 a.m. Dr. Wiley’s medical assistant, Keisha Lipscomb, answered.
Ms. Maldonado identified herself to Ms. Lipscomb as “Doctor Maldonado” and asked to
speak with Dr. Wiley. Ms. Maldonado further stated she had information that Ms. Duren
was exposed to toxic mold and that she needed to tell Dr. Wiley about the toxic mold
exposure so it could be added to Ms. Duren’s records. Ms. Lipscomb stated that Dr. Wiley
was unavailable to speak but that she would take a message for Dr. Wiley.
Ms. Maldonado called Dr. Wiley’s office four more times that day, at 10:48 a.m.,
10:55 a.m., 11:31 a.m., and 11:38 a.m. Ms. Maldonado was unable to reach Dr. Wiley and
grew increasingly frustrated. Eventually, Ms. Maldonado revealed that she was Ms.
Duren’s attorney and that she needed documentation from Dr. Wiley immediately for a
court filing.
At 11:01 a.m., Ms. Lipscomb made the following entry in Ms. Duren’s patient log:
DR MELINDA MALDONADO called. . . . She would like to you [sic] call
her, because she needs you to change your hospital note since you noted that
the patient has allergies when in fact she was exposed to mold and needs to
educate you on this.
[S]he would like you to call asap since she has to file paperwork within 15
min. [S]tates she is a physician and a lawyer?
10
Ms. Lipscomb testified she was confused by Ms. Maldonado’s phone calls and was
unsure how to answer them. Ms. Lipscomb’s supervisor eventually instructed her not to
speak with Ms. Maldonado. The calls were transferred to the office manager, Michelle
Andrade. Ms. Lipscomb reviewed Ms. Duren’s medical chart to determine if she could
determine why Ms. Maldonado was repeatedly calling. Ms. Lipscomb found the subpoena
from Ms. Belanger, whom she believed was Ms. Duren’s attorney, in the file.
At 11:18 a.m., Dr. Elizabeth McIlmoyle made the following entry in Ms. Duren’s
patient log:
This person called 4 x so far today, asking the above [as described in Ms.
Lipscomb’s note]. She spoke w/ [M]ichelle, [K]esha and [A]ndrea. Kesha
called the [patient’s] lawyer (who we have sent records to before w/signed
release and whose info is in the chart) and spoke w/paralegal Joan-they stated
they do not know who she is.
We do not have releases to speak w/her or give any information.
Ms. Lipscomb googled Ms. Maldonado’s name and discovered that she was not a
physician, but instead was a toxic torts attorney. Dr. McIlmoyle wrote an addendum in the
patient log:
ADDENDUM: 1159AM
As addendum to above, think lawyers we spoke w/(and have documentation
of in chart: [D]ecaro/[D]oran) are defendant counsel, not patient’s lawyer. In
any case, we do not have [a] release for speaking with the above person.
Dr. Wiley wrote “Noted. JW” in the patient’s log at 1:53 p.m.
The next day, Ms. Maldonado called Dr. Wiley’s office at least two more times. At
12:18 p.m., Dr. Wiley’s employee wrote a note in the patient log that “Dr. MELINDA
MALDONADO called again today asking for Dr. Wiley. . . she wanted me to page Dr.
11
Wiley and I told her I cannot do that and she hung up.” Dr. Wiley’s employee notified the
answering service that if someone named Dr. Maldonado attempted to page Dr. Wiley, that
the answering service should forward those calls to the office and should not page Dr.
Wiley.
At 12:23 p.m., the office manager made the following note in the patient log:
[A]nswering service called and [p]ut Dr. [M]aldonado through again since
she was trying to reach [D]r. [W]iley at the hospital. I explained to her I am
not paging the physician and that he has the message. [S]he stated it was
urgent and I explained that again I am not paging him. She then stated how
rude he is and that he has not returned the call. I told her that he is not going
to since there is nothing on file from the patient that we can talk to her.
[S]he stated that all she wants him to do is change his hospital note, again I
told her he is not going to do that. [S]he stated she will go through medical
records at [BWMC] and she will track him down and make him change the
note and she hung up.
At one point, Ms. Maldonado questioned Dr. Wiley’s competence and intelligence and
called him a “backwoods” physician. In addition to referring to herself as Dr. Maldonado,
she also told Dr. Wiley’s staff that she went to medical school.
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact and reviews without deference a hearing judge’s conclusions of
law. See Md. Rule 19-741(b)(2)(B) (“The Court [of Appeals] shall give due regard to the
opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney
Grievance Comm’n v. Chanthunya, 446 Md. 576, 588 (2016) (“This Court reviews for
clear error a hearing judge’s findings of fact.” (citations omitted)); Md. Rule 19-741(b)(1)
(“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”).
12
This Court determines whether clear and convincing evidence establishes that a lawyer
violated an MLRPC. See Md. Rule 19-727(c) (“Bar Counsel has the burden of proving the
averments of the petition [for disciplinary or remedial action] by clear and convincing
evidence.”). If exceptions to the findings of fact are filed, the Court “shall determine
whether the findings of fact have been proven by the requisite standard of proof set out in
Rule 19-727(c).” Md. Rule 19-741(b)(2)(B).
DISCUSSION
The authority to discipline an out-of-state attorney who provides legal services in
Maryland is provided in Maryland Rule 8.5(a)(2). “Under that rule, an attorney who is not
admitted in Maryland is subject to the disciplinary authority of this Court if the attorney,
among other things: (1) provides or offers to provide any legal services in Maryland.”
Attorney Grievance Comm’n v. Ndi, 459 Md. 42, 54 (2018). As a result, Ms. Maldonado
is subject to discipline in Maryland. Bar Counsel did not except to any of the hearing
judge’s findings of fact or recommended conclusions of law. Ms. Maldonado takes
numerous exceptions to the hearing judge’s factual findings and recommended conclusions
of law. Additionally, Ms. Maldonado excepts to the hearing judge’s evaluation of the
aggravating and mitigating factors found in this matter, contending that the finding of
certain aggravating factors was not appropriate and that additional mitigating factors
should have been found. Finally, as a preliminary matter, all of Ms. Maldonado’s motions
to dismiss are denied. We have reviewed the motions and Ms. Maldonado’s contentions
lack any merit.
13
Exceptions to the Hearing Judge’s Findings of Fact
Findings of Fact About the Unauthorized Practice of Law
First, as to the unauthorized practice of law, Ms. Maldonado contends the hearing
judge should have made additional findings of fact surrounding what Ms. Maldonado
believes was a conspiracy between the Complainant Mr. Liskow, who represented Home
Properties in the underlying mold litigation, Mr. Nace, her Maryland pro hac vice sponsor,
and Bar Counsel to thwart the underlying litigation between Home Properties and Ms.
Duren. Ms. Maldonado did not present any evidence to the hearing judge of this alleged
conspiracy. In fact, Mr. Liskow specifically testified he waited until the conclusion of the
underlying litigation to write a letter to notify Bar Counsel of Ms. Maldonado’s
misconduct. Furthermore, these allegations have no bearing on Ms. Maldonado’s
disciplinary hearing as Bar Counsel has conducted its own independent investigation into
these allegations and has brought forth these charges against Ms. Maldonado. See Md.
Rule 19-711(b). There is no evidence this disciplinary proceeding was instigated as a tactic
in the underlying toxic tort litigation. Rather, the Complainant complied with Maryland’s
Rules and reported Ms. Maldonado’s misconduct after interacting with her as opposing
counsel in the tort litigation. Accordingly, we overrule Ms. Maldonado’s exception.
Second, Ms. Maldonado contends the hearing judge should have made additional
findings of fact surrounding her efforts to obtain Maryland counsel and find a pro hac vice
sponsor while she was drafting the complaints and pursuing the appeal. She claims her
pursuit of Maryland counsel permitted her to move forward with her representation of Ms.
Duren without a pro hac vice sponsor in Maryland. Alternatively, Ms. Maldonado
14
contends the hearing judge should have made additional findings of fact that she informed
Ms. Duren and her family that they would need to obtain new Maryland counsel for the
appeal and that Ms. Maldonado was not available for the appellate work because she had
to go out-of-state in order to care for her mother.
We conclude that the omission of these facts was not clearly erroneous. These
omitted facts have no bearing on this Court’s consideration of violations of Rule 5.5. See
Attorney Grievance Comm’n v. Moore, 451 Md. 55, 75 (2017) (citing Attorney Grievance
Comm’n v. Sheinbein, 372 Md. 224, 241 (2002) (A “hearing judge’s omission of a factual
finding is not clearly erroneous when the fact has ‘little bearing on the outcome of [the]
proceeding and is irrelevant.’”). As to her initial contention, Ms. Maldonado is correct that
an attorney may render services in Maryland on a temporary basis if the attorney anticipates
admission pro hac vice. Rule 5.5(c)(2) states:
An attorney admitted in another United States jurisdiction, and not disbarred
or suspended from practice in any jurisdiction, may provide legal services on
a temporary basis in this jurisdiction that: are in or reasonably related to a
pending or potential proceeding before a tribunal in this or another
jurisdiction, if the attorney, or a person the attorney is assisting, is authorized
by law or order to appear in such proceeding or reasonably expects to be so
authorized[.]
However, Ms. Maldonado ignores Comment 10 to Rule 5.5 which expands on the
proper application of Rule 5.5(c)(2) and states, “[e]xamples of such conduct include
meetings with the client, interviews of potential witnesses, and the review of documents.”
Drafting the complaint and preparing multiple appellate filings clearly extends beyond the
scope of rendering services on a temporary basis. Therefore, the additional fact that Ms.
15
Maldonado searched for Maryland counsel does not excuse her conduct and the hearing
judge’s omission was not clearly erroneous.
As to the alternative findings of fact Ms. Maldonado requested from the hearing
judge, specifically that Ms. Maldonado informed Ms. Duren that she would need to find
new counsel for her appeal and that Ms. Maldonado was not acting as counsel because her
mother was sick, either of those findings would be contrary to the factual findings of the
hearing judge. We conclude the hearing judge did not clearly err in finding that Ms.
Maldonado continued to represent Ms. Duren in the appeal. “A hearing judge does not
clearly err in finding a fact where ‘there is any competent evidence to support the’ finding
of fact.” Attorney Grievance Comm’n v. Donnelly, 458 Md. 237, 276 (2018) (quoting
Attorney Grievance Comm’n v. Merkle, 440 Md. 609, 633 (2014)). The hearing judge is
in the best position to make these types of credibility evaluations and we cannot find that
the hearing judge was clearly erroneous. See Attorney Grievance Comm’n v. Hodes, 441
Md. 136, 181 (2014) (“We generally ‘defer to the credibility findings of the hearing
judge.’”) (citing Attorney Grievance Comm’n v. Agbaje, 438 Md. 695, 722 (2014)). Ms.
Duren testified that Ms. Maldonado drafted and filed the appellate documents with Ms.
Duren’s consent. Further, Ms. Duren stated she did not know how to file any of the
documents herself and that they drafted and filed the documents together. The hearing
judge evaluated the evidence and weighed Ms. Duren’s testimony and Ms. Maldonado’s
testimony. We will not overrule the hearing judge’s conclusion that Ms. Maldonado
continued to represent Ms. Duren throughout the appellate proceedings.
16
As to Ms. Maldonado’s allegations that she was unavailable due to her mother’s
illness, that evidence is more properly suited for mitigation. In any event, Ms. Maldonado
provided no documentation, beyond her own testimony, of her time out-of-state.
Therefore, the hearing judge did not clearly err in her findings and Ms. Maldonado’s
exceptions are overruled.
Findings of Fact About Ms. Maldonado’s Communications with Dr. Wiley’s Office
Ms. Maldonado believed the hearing judge should have found that Ms. Maldonado
introduced herself as “Dr. Maldonado” and immediately clarified that she was an
environmental attorney and toxic tort legal specialist. As evidence of this fact, Ms.
Maldonado cites to the call log. Ms. Maldonado contends that she clearly disclosed that
she was representing Ms. Duren in a legal matter and that she clearly stated she was an
environmental attorney. She also contends that the hearing judge was incorrect that she
sought alteration of her client’s medical records. Further, she states that Ms. Duren’s
medical records already reflected that Ms. Duren was exposed to toxic mold for three years
and that she was allergic to penicillin so alteration of the records would not have been
necessary. Ms. Maldonado contends that the reason that she called Dr. Wiley’s office was
for two distinct reasons: (1) that she wanted to discuss the severity of Ms. Duren’s condition
due to toxic mold and (2) to try to obtain a letter from Dr. Wiley regarding Ms. Duren’s
condition to include in support of a motion for new trial. Ms. Maldonado claims she did
not state she went to medical school and only wanted Dr. Wiley’s staff to know she had
17
knowledge and a background in medical science to support her legal experience with toxic
mold.
The hearing judge is in the best position to make these types of credibility
evaluations. See Hodes, 441 Md. at 181. The hearing judge reviewed the evidence and
testimony to reach the conclusion that Ms. Maldonado held herself out as a medical doctor
to Dr. Wiley’s office. Testimony from those working at Dr. Wiley’s office and the patient
log admitted into evidence support the hearing judge’s conclusion. We cannot say the
hearing judge’s findings of fact involving Ms. Maldonado’s interactions with Dr. Wiley’s
office staff were clearly erroneous. Therefore, Ms. Maldonado’s exceptions are overruled.
Exceptions to the Hearing Judge’s Conclusions of Law
As a general statement supporting her exceptions, Ms. Maldonado contends that
throughout the proceedings her intentions were altruistic and that she was always seeking
to protect Ms. Duren and her legal rights. As described below, she also provided a more
specific basis for the following exceptions as to each conclusion of law.
Rule 1.1
Rule 1.1 requires that an attorney “shall provide competent representation to a
client.” “Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” R. 1.1. An attorney violates Rule
1.1 if she “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). Failure to take
“necessary, fundamental steps to further the client’s case” violates Rule 1.1. Attorney
Grievance Comm’n v. Garrett, 427 Md. 209, 223 (2012). The hearing judge found Ms.
18
Maldonado violated Rule 1.1 when she failed to obtain the trial transcripts pursuant to
Maryland Rule 8-413(a)(2) in order to proceed with Ms. Duren’s appeal in the Court of
Special Appeals. Ms. Maldonado’s failure to obtain the transcripts caused Ms. Duren’s
appeal to be dismissed by the Court of Special Appeals pursuant to Maryland Rule 8-602.
Ms. Maldonado contends that she was never Ms. Duren’s counsel for the appeal and
thus was not required to ensure that the transcript was filed. We overrule Ms. Maldonado’s
exception to Rule 1.1. We affirmed the hearing judge’s finding of fact that Ms. Maldonado
represented Ms. Duren without a pro hac vice sponsor throughout the appellate process.
The evidence clearly illustrates that Ms. Maldonado was not simply assisting Ms. Duren in
her appeal but instead was directly representing Ms. Duren. Moreover, under this
unauthorized practice of law, Ms. Duren was relying on Ms. Maldonado as her appellate
counsel. As a result, Ms. Maldonado was responsible for obtaining the appropriate
transcripts or terminating her representation of Ms. Duren.
Further supporting this violation by Ms. Maldonado is the fact that the Court of
Special Appeals initially denied Home Properties’ Motion to Dismiss so that Ms. Duren
could “take all steps necessary to cause all transcripts necessary for this Appeal to be filed
in the Circuit Court for Anne Arundel County on or before February 1, 2016.” Despite this
directive, Ms. Maldonado took no further action in the Court of Special Appeals and her
failure eventually caused Ms. Duren to forfeit her right of appeal. Ms. Maldonado’s failure
to order the proper transcripts reflects a lack of competence and her exception is overruled.
Therefore, we affirm the hearing judge’s conclusion that Ms. Maldonado’s failure to file a
19
transcript in the Court of Special Appeals to preserve her client’s appeal provided clear and
convincing evidence of a lack of competence in violation of Rule 1.1.
Rule 4.1
Rule 4.1(a) requires in part that “[i]n the course of representing a client an attorney
shall not knowingly: (1) make a false statement of material fact or law to a third person[.]”
Comment [1] to the Rule provides:
An attorney is required to be truthful when dealing with others on a client’s
behalf. . . . A misrepresentation can occur if the attorney incorporates or
affirms a statement of another person that the attorney knows is false.
Misrepresentations can also occur by partially true but misleading statements
or omissions that are the equivalent of affirmative false statements.
The hearing judge determined Ms. Maldonado twisted the truth and deliberately
intended to mislead Dr. Wiley’s office to obtain something on behalf of Ms. Duren.
Specifically, in her dealings with Dr. Wiley’s office, Ms. Maldonado did not clearly
disclose that she was representing Ms. Duren in a legal matter and that her requests related
to a pending trial. Further, Ms. Maldonado used the title “Doctor” which was a deliberate
and calculated move that Ms. Maldonado intended to be misleading. Ms. Maldonado
wanted Dr. Wiley’s staff to think that she was a medical doctor and she further misled them
when she informed them that “I went to med[ical] school.” The hearing judge concluded
Ms. Maldonado was in violation of Rule 4.1 as a result of these factual findings.
In excepting to the hearing judge’s conclusion of law, Ms. Maldonado states that
she clearly identified herself as Ms. Duren’s environmental attorney and never identified
herself as a physician. She stated she immediately clarified that she was an attorney
representing Ms. Duren. Further, she states she never misled anyone or attempted to
20
mislead anyone. Rather, she wanted to speak with Dr. Wiley to discuss Ms. Duren’s
condition in order to convince him to support her motion for a new trial.
Ms. Maldonado’s exception is inconsistent with her testimony. In fact, she testified
that she identified herself as “Doctor Maldonado” so that she could “baby step her way in”
because she often found doctors’ office staff rude to her when she identifies herself as an
attorney. Further, Ms. Maldonado’s claim that she clearly identified herself as Ms. Duren’s
attorney is inconsistent with the fact that Dr. Wiley’s staff was confused as to her identity
and the purpose of her phone calls. The entries in the patient log illustrate the office’s
confusion as to Ms. Maldonado’s identity.
The factual findings allow us to conclude that Ms. Maldonado held herself out as a
medical doctor in an attempt to confuse Dr. Wiley’s staff and gain access to Dr. Wiley.
Ms. Maldonado knew she could not gain the same access if she identified herself as an
attorney. We doubt that Ms. Maldonado would have used the title “Doctor” if she was
calling any other professional office. Rule 4.1 encompasses misrepresentations that are
“partially true but misleading statements or omissions.” We are persuaded that there was
clear and convincing evidence that Ms. Maldonado held herself out as a medical doctor to
mislead the staff as to her identity. Accordingly, we agree with the hearing judge that clear
and convincing evidence exists to conclude Ms. Maldonado violated Rule 4.1 and we
overrule Ms. Maldonado’s exception.
Rule 4.4
Rule 4.4(a) provides that “[i]n representing a client, an attorney shall not use means
that have no substantial purpose other than to embarrass, delay, or burden a third person,
21
or use methods of obtaining evidence that the lawyer knows violate the legal rights of such
a person.” Comment [1] to the Rule states:
Responsibility to a client requires an attorney to subordinate the interests of
others to those of the clients, but that responsibility does not imply that an
attorney may disregard the rights of third persons. . . . It is impractical to
catalogue all such rights, but they include legal restrictions on methods of
obtaining evidence from third persons and unwarranted intrusions into
privileged relationships, such as the client-attorney relationship.
The hearing judge concluded that Ms. Maldonado’s numerous phone calls over the course
of two days harassed Dr. Wiley’s staff and violated Ms. Duren’s rights in violation of Rule
4.4. In her exception to the finding of a Rule 4.4 violation, Ms. Maldonado contends that
she did not intentionally burden Dr. Wiley’s office with the phone calls over the course of
two days. She states the reason for the phone calls was legitimate and not to embarrass,
delay, or burden anyone; rather the severity of Ms. Duren’s condition warranted her
conduct as a zealous advocate for her client.
Ms. Maldonado called Dr. Wiley’s office and the hospital’s answering service at
least nine times over the course of two days. Her calls over those two days required the
attention of multiple employees in Dr. Wiley’s office and eventually involved the larger
hospital answering system. As an experienced attorney in toxic tort litigation, Ms.
Maldonado should have known that the Health Insurance Portability and Accountability
Act (“HIPAA”) Privacy Rule barred a doctor from discussing the information she was
calling about. We do not condone Ms. Maldonado’s tactic, yet, we do not believe there is
clear and convincing evidence that Ms. Maldonado conduct arose to a violation of Rule
4.4.
22
This case is distinguishable from those in which we have found a violation of Rule
4.4. For example, in Attorney Grievance Comm’n v. Cocco, the attorney presented invalid
subpoenas to Walmart employees in order to obtain a copy of a surveillance video. 442
Md. 1, 5 (2015). When the employees did not comply, the attorney threatened the
employees with personal lawsuits. Id. We found facts supportive of a finding of a violation
of Rule 4.4. Id. at 10. Likewise in Attorney Grievance Comm’n v. Mixter, we held an
attorney violated Rule 4.4 when he “intentionally pursued the defendants’ driving records
without basis, causing his opposition to use time and resources to obtain protective orders
as to their driving records, and delaying litigation, thereby violating Rule 4.4(a).” 441 Md.
416, 522 (2015). Here, while Ms. Maldonado’s numerous calls required the attention of
Dr. Wiley’s office for two days, she never threatened the office with litigation or filed any
motions. Further, while ill-advised, we believe that in Ms. Maldonado’s mind she had a
“purpose other than to embarrass, delay, or burden” Dr. Wiley’s office. As a result, we do
not find there was sufficient clear and convincing evidence of a violation of Rule 4.4(a)
presented to the hearing judge.
Rule 5.5
Rule 5.5(a) provides that “a lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction, or assist another in
doing so.” Ms. Maldonado claims special circumstances exist in which the complainant,
Mr. Liskow, threatened her sponsoring attorney during the underlying litigation, causing
her sponsoring attorney to withdraw as appellate counsel. Further, according to Ms.
Maldonado this alleged threat caused her sponsoring attorney to lie when he testified during
23
the disciplinary hearing that he told Ms. Maldonado that he was withdrawing as counsel.
She contends this evidence absolves her of wrongdoing especially because of the “life and
death circumstances of Ms. Duren.” She also contends she was always motivated by her
desire to assist Ms. Duren and protect her legal rights.
As to the first contention, there is no evidence in the record to support Ms.
Maldonado’s bald assertion that Mr. Liskow or Mr. Nace engaged in any misconduct. The
evidence does not suggest, and we do not accept, that Mr. Liskow or Mr. Nace acted
unethically by informing Bar Counsel of Ms. Maldonado’s conduct during the underlying
lawsuit. Furthermore, none of Ms. Maldonado’s exceptions excuse her unauthorized
practice of law in Maryland.
The hearing judge concluded Ms. Maldonado engaged in the unauthorized practice
of law during multiple time periods during her representation of Ms. Duren. “To determine
whether an individual has engaged in the practice of law, the focus of the inquiry should
‘be on whether the activity in question required legal knowledge and skill in order to apply
legal principles and precedent.’” Attorney Grievance Comm’n v. Hallmon, 343 Md. 390,
397 (1996) (citations omitted). “[T]he unauthorized practice of law includes utilizing legal
education, training, and experience to apply the special analysis of the profession to a
client’s problem.” Attorney Grievance Comm’n v. Barneys, 370 Md. 566, 580 (2002)
(cleaned up) (citations omitted). “Where trial work is not involved but the preparation of
legal documents, their interpretation, the giving of legal advice, or the application of legal
principles to problems of any complexity, is involved, these activities are still the practice
of law.” Hallmon, 343 Md. at 397 (citations omitted).
24
Here, Ms. Maldonado was not licensed to practice law in Maryland during the entire
time that she represented Ms. Duren.3 While unlicensed in Maryland and without a pro
hac vice sponsor, Ms. Maldonado drafted and filed numerous pleadings in the underlying
action. The fact that she signed them on Ms. Duren’s behalf as “pro se” does not absolve
Ms. Maldonado from the unauthorized practice of law. In fact, we find her conduct more
culpable because she was deceiving the court. Ms. Duren was never proceeding pro se,
but instead Ms. Maldonado was using that description to hide the fact that she was
practicing in Maryland without a license. Out-of-state counsel is not permitted to hide his
or her representation of a client through the use of pro se filings when, as was present in
this case, the out-of-state attorney is drafting all of the pleadings, conducting all of the
research for the pleadings, placing their client’s signature on the pleadings, placing the
statement that the client was proceeding pro se on the pleadings, and personally filing the
pleadings on his or her client’s behalf.4 The evidence shows that Ms. Maldonado, without
3
We do recognize that she was authorized to practice law in Maryland during the pro hac
vice admission period.
4
We also note this behavior is different from what has been coined “ghostwriting” across
various jurisdictions. “Ghost-writing is best described as when a member of the bar
represents a pro se litigant informally or otherwise, and prepares pleadings, motions, or
briefs for the pro se litigant which the assisting lawyer does not sign, and thus escapes the
professional, ethical, and substantive obligations imposed on members of the bar.” In re
Dreamplay, Inc., 534 B.R. 106, 120 (Bankr.D.Md.2015) (quoting In re Mungo, 305 B.R.
762, 767 (Bankr.D.S.C.2003)). This Court has not been presented with an attorney
discipline case specific to ghost-writing. In 2015, Rule 1.2 was amended to permit
Maryland attorneys to agree to limit the scope of the representation to clearly defined
specific tasks or objectives, such as the drafting of document. However, in this matter,
Rule 1.2 or any argument of ghostwriting is inapplicable. Ms. Maldonado was practicing
in Maryland without a license or pro hac vice admission. Furthermore, there was no limited
scope representation agreement and Ms. Maldonado was responsible for all pleadings filed
25
a license in Maryland or a pro hac vice sponsor, was acting as counsel for Ms. Duren.
There is no evidence that Ms. Duren acted without Ms. Maldonado at any point during the
action. We agree with the hearing judge that there is clear and convincing evidence that
Ms. Maldonado violated Rule 5.5(a) and we overrule Ms. Maldonado’s exceptions.
Rule 8.4
Rule 8.4 provides, in relevant part, that: “[i]t is professional misconduct for an
attorney to: (a) violate or attempt to violate the Maryland Attorneys’ Rules of Professional
Conduct; . . . (c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [and] (d) engage in conduct that is prejudicial to the administration of
justice.” The hearing judge determined, and we affirmed, that Ms. Maldonado violated
Rules 1.1, 4.1(a), 5.5(a) and 8.4(c)–(d), then she also violated Rule 8.4(a).5 A finding as
to each one of these violations on its own could serve as a basis for a violation of 8.4(a).
Attorney Grievance Comm’n v. Nelson, 425 Md. 344, 363 (2012) (“Rule 8.4(a) is violated
when other Rules of Professional Conduct are breached.”). Ms. Maldonado filed no
before the Maryland courts. Ms. Maldonado’s conduct does not qualify as ghostwriting
nor does it fall under the scope of Rule 1.2.
5
The hearing judge also found sufficient evidence for a Rule 4.4(a) violation, however, as
described earlier, we concluded that there was insufficient clear and convincing evidence
of a violation of Rule 4.4(a).
26
exception to 8.4(a). Therefore, this Court agrees with the hearing judge’s conclusion that
there is clear and convincing evidence that Ms. Maldonado violated 8.4(a).
The hearing judge found Ms. Maldonado violated 8.4(c) by misrepresenting herself
in her communications with Dr. Wiley’s office.
A broad universe of misbehavior is encompassed by MLRPC 8.4(c).
Dishonesty is the broadest of the four terms, and encompasses, inter alia,
conduct evincing a lack of honesty, probity or integrity of principle; [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. Thomas, 440 Md. 523, 555 (2014) (internal citations and
quotations omitted). “A violation of 8.4(c) must be the result of intentional misconduct.”
Attorney Grievance Comm’n v. Moore, 451 Md. 55, 86 (2017) (citing Attorney Grievance
Comm’n v. Mungin, 439 Md. 290, 310 (2014) (“It is well settled that this Court will not
find a violation of [Rule] 8.4(c) when the attorney’s misconduct is the product of negligent
rather than intentional misconduct.”) (quoting Attorney Grievance Comm’n v. DiCicco,
369 Md. 662, 684 (2002)).
Ms. Maldonado maintains she did not engage in conduct that involved dishonesty,
fraud, deceit or misrepresentation. She states she introduced herself as Dr. Maldonado but
immediately clarified that she was an environmental attorney and that she represented Ms.
Duren. She contends the record in this case supports the opposite conclusion reached by
the hearing judge. Ms. Maldonado also contends that the hearing judge was incorrect that
the use of “Doctor” was deliberately and intentionally misleading. She stated that pursuant
to Rule 7.1 and the American Bar Association (“ABA”), lawyers who earned a juris doctor
27
degree may refer to themselves as doctors.6 She states it is an accurate title because she
has received her juris doctor degree.
This Court has not established in an opinion or within the Rules specific guidance
whether there are instances when an attorney may refer to himself or herself as a doctor.7
However, we require adherence to Rule 7.1, that states:
An attorney shall not make a false or misleading communication about the
attorney or the attorney’s services. A communication is false or misleading
if it:
(a) contains a material misrepresentation of fact or law, or omits a fact
necessary to make the statement considered as a whole not materially
misleading;
(b) is likely to create an unjustified expectation about results the attorney can
achieve, or states or implies that the attorney can achieve results by means
that violate the Maryland Attorneys’ Rules of Professional Conduct or other
law; or
6
In response to Ms. Maldonado’s contention that the ABA permits her to refer to herself
as a doctor, we note that the ABA is not binding on this Court. Further, the ABA’s stance
on this issue is more nuanced than Ms. Maldonado’s contentions. The ABA’s guidance on
this issue states that the ABA Model Rules of Professional Conduct, which superseded the
Model Code in 1983, does not directly address this issue. As a result, state ethics opinions
are the best guidance on this issue. See Kathleen Maher, Lawyers Are Doctors, Too, 92
A.B.A.J. 24 (2006).
7
In evaluating this issue, we reviewed an opinion from the Committee on Ethics from the
Maryland State Bar Ass’n, Inc., Ethics Docket No. 2013-02. In the opinion, the Committee
was asked to advise whether it is ethically permissible for an attorney to use esquire after
his or her name, even when acting in a nonlegal capacity. Id. The opinion stated, “[w]e
agree . . . that there is no per se rule that would prohibit an attorney from attaching “Esq.”
to his or her name when not practicing as a lawyer . . . the attorney must ensure that he or
she does not use that term in a context in which a person could reasonably believe that the
attorney is acting as a lawyer when the attorney is not doing so.” Id. Likewise, when Ms.
Maldonado referred to herself as a doctor, she needed to ensure that she was not using the
term in a way in which a reasonable person could believe she was representing herself as
a medical doctor.
28
(c) compares the attorney’s services with other attorney’s services, unless the
comparison can be factually substantiated.
Thus, under the restrictions on attorney communications proscribed by Rule 7.1, we do not
need to decide in this case whether there is any appropriate instance when an attorney may
refer to themselves as a doctor. It is clear that “an attorney shall not make a false or
misleading communication about the attorney or the attorney’s services.” Rule 7.1.
In this instance, we are persuaded that Ms. Maldonado’s conduct was a violation of
this Rule. Ms. Maldonado made a material misrepresentation when she intentionally
referred to herself as a doctor while calling a medical doctor’s office in order to bypass the
medical doctor’s office staff to speak to the medical doctor about her client. The record
contains clear and convincing evidence that her misrepresentations to Dr. Wiley’s office
were intentional. Ms. Maldonado testified that she sometimes uses the title of “Doctor” to
hide the fact that she is an attorney because she has found doctor’s offices are hesitant to
speak with an attorney. The record supports that Ms. Maldonado misrepresented herself
as a medical doctor and failed to adequately identify herself as an attorney. As a result, we
find there is clear and convincing evidence that Ms. Maldonado violated Rule 8.4(c) and
we overrule her exceptions.
In addition, the hearing judge concluded that Ms. Maldonado violated Rule 8.4(d).
Conduct which is “likely to impair public confidence in the profession, impact the image
of the legal profession and engender disrespect for the court” is conduct prejudicial to the
administration of justice. Attorney Grievance Comm’n v. Childress, 360 Md. 373, 381–82
(2000). Courts apply an objective standard to determine if Ms. Maldonado’s misconduct
29
would “negatively impact a reasonable member of the public’s perception of the legal
profession.” Attorney Grievance Comm’n v. Basinger, 441 Md. 703, 720 (2015) (cleaned
up).
Ms. Maldonado contends she has not negatively impacted the public’s perception
of the legal profession. She cites to Ms. Duren’s testimony that “there is no lawyer like
[her]” and to the fact that she did not charge any fees to Ms. Duren. Further, she cites to
her strong reputation for competency in toxic torts and mold litigation. She states that she
is in the top one percent of attorneys8 and that she has been awarded this distinction year
after year. She contends that she is respected by clients and colleagues. Finally, in her
interactions with Dr. Wiley’s office, she contends that while she was frustrated, she never
raised her voice at the office staff.
We agree with the hearing judge that Ms. Maldonado’s interactions with Dr.
Wiley’s office would negatively affect a reasonable person’s perception of the legal
profession in violation of Rule 8.4(d). While Ms. Maldonado never raised her voice, she
called Dr. Wiley’s office numerous times over the course of two days. She also made
disparaging remarks about Dr. Wiley. We are persuaded that there is clear and convincing
evidence that Ms. Maldonado’s misconduct would negatively impact a reasonable member
of the public’s perception of the legal profession in violation of Rule 8.4(d) and we overrule
Ms. Maldonado’s exception.
8
Ms. Maldonado held up a letter during oral argument and has filed exhibits which show
that this recognition was from the National Association of Distinguished Counsel.
30
SANCTION
In weighing the appropriate sanction for an attorney disciplinary proceeding, this
Court is “guided by our interest in protecting the public and the public’s confidence in the
legal profession.” Attorney Grievance Comm’n v. Pennington, 387 Md. 565, 595 (2005)
(citing Attorney Grievance Comm’n v. Powell, 369 Md. 462, 474 (2002)). “As we have
often stated, the purpose of attorney disciplinary proceedings is to protect the public and
deter other lawyers from engaging in misconduct rather than simply to punish the lawyer.”
Attorney Grievance Comm’n v. Powell, 461 Md. 189, 226 (2018) (citing Attorney
Grievance Comm’n v. Mollock, 450 Md. 133, 158 (2016)). “In addition to the nature of
the violations and the intent with which they were committed, we also consider any
mitigating or aggravating circumstances.” 9 Attorney Grievance Comm’n v. Woolery, 456
9
We have recognized the following aggravating factors:
(1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct;
(4) multiple offenses; (5) bad faith obstruction of the attorney disciplinary proceeding by
intentionally failing to comply with the rules or the order of the disciplinary agency; (6)
submission of false evidence, false statements, or other deceptive practices during the
disciplinary process; (7) refusal to acknowledge the wrongful nature of conduct; (8)
vulnerability of the victim; (9) substantial experience in the practice of law; (10) whether
he or she displayed indifference to making restitution (11) illegal conduct, including that
involving the use of controlled substances; and (12) likelihood of repetition of the
misconduct.
Attorney Grievance Comm’n v. Allenbaugh, 450 Md. 250, 277–78 (2016) (cleaned up).
We have recognized the following mitigating factors:
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or selfish motive;
(3) personal or emotional problems; (4) timely good faith efforts to make restitution or to
rectify the misconduct’s consequences; (5) full and free disclosure to Bar Counsel or a
31
Md. 483, 499–500 (2017). The Court considers any aggravating factors that are proven by
clear and convincing evidence and mitigating factors that are proven by a preponderance
of the evidence. Md. Rule 19-727(c).
The hearing judge found the following aggravating factors: a dishonest or selfish
motive; multiple offenses; bad faith obstruction of the disciplinary proceeding by
intentionally failing to comply with the rules or order of the disciplinary agency;
submission of false evidence, false statements, or other deceptive practice during the
disciplinary process; refusal to acknowledge the wrongful nature of conduct; substantial
experience in the practice of law; illegal conduct; and likelihood of repetition of
misconduct in this case. Ms. Maldonado filed an exception to each aggravating factor
except substantial experience and illegal conduct.
In considering a dishonest or selfish motive, the hearing judge found Ms.
Maldonado’s motive dishonest. The hearing judge determined Ms. Maldonado knew that
cooperative attitude toward the attorney discipline proceeding; (6) inexperience in the
practice of law; (7) character or reputation; (8) a physical disability; (9) a mental disability
or chemical dependency, including alcoholism or drug abuse, where: (a) there is medical
evidence that the lawyer is affected by a chemical dependency or mental disability; (b) the
chemical dependency or mental disability caused the misconduct; (c) the lawyer’s recovery
from the chemical dependency or mental disability is demonstrated by a meaningful and
sustained period of successful rehabilitation; and (d) the recovery arrested the misconduct,
and the misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse; (13)
remoteness of prior violations of the MLRPC; and (14) unlikelihood of repetition of the
misconduct.
Id.
32
she could not represent Ms. Duren in Maryland without a pro hac vice sponsor. Evidence
was presented that Ms. Maldonado informed Ms. Duren when they first met and in the
emails between Ms. Maldonado and Mr. Nace that Ms. Maldonado could not practice law
in Maryland. Further, Ms. Maldonado concealed her representation of Ms. Duren from the
Courts by having Ms. Duren sign her name, using Ms. Duren’s email address, and having
Ms. Duren state in the pleadings that she was proceeding pro se. Ms. Maldonado countered
the hearing judge’s conclusions, by stating that she knew that she needed a Maryland pro
hac vice sponsor and that she only sought to protect the rights of an extremely ill individual
who was in dire need. We agree with the hearing judge. Ms. Maldonado’s contentions do
not rebut the hearing judge’s findings. Her statements, regardless of the validity, do not
excuse the fact that she concealed from the courts that she drafted and filed pleadings in
Maryland on behalf of her client when she was not a licensed attorney in this State.
The hearing judge also found as an aggravating factor that Ms. Maldonado was in
violation of multiple rules. Ms. Maldonado contends this finding was not proper because
of her outstanding record as an attorney and that she has been consistently nominated by a
judicial review board to the nation’s top one percent of attorneys. Nonetheless, while Ms.
Maldonado’s high reputation and previous awards may be true, they do not absolve Ms.
Maldonado from the finding of multiple violations in this matter. See Attorney Grievance
Comm’n v. Mixter, 441 Md. 416, 530 (2015) (“Factor (d), ‘multiple offenses,’ is implicated
when an attorney violates multiple disciplinary rules.”) (citation omitted).
The hearing judge found an additional aggravating factor of bad faith obstruction of
the disciplinary proceeding by intentionally failing to comply with the rules or order of the
33
disciplinary agency. Ms. Maldonado evaded service for four months and forced the
Petitioner to serve the Client Protection Fund of the Bar of Maryland. Ms. Maldonado
initially failed to file an answer in this action causing Bar Counsel to file a request for an
order for default. Even after eventually filing an answer, Ms. Maldonado failed to timely
respond to Bar Counsel’s discovery and forced Bar Counsel to file for sanctions. Finally,
when Bar Counsel propounded discovery on January 26, 2018, Ms. Maldonado waited
until April, past the deadline, to file incomplete responses. As to this factor, Ms.
Maldonado claims she did not evade service. She states Bar Counsel acted unethically.
She states she had responded in good-faith to all requests and responses during this entire
proceeding. Ms. Maldonado’s contentions are without merit. Ms. Maldonado evaded
service, failed to accept service electronically, and failed to provide sufficient discovery.
We agree with the hearing judge that Bar Counsel proved this aggravating factor by clear
and convincing evidence.
Ms. Maldonado’s inconsistent testimony concerning her bar admissions in other
states supports the aggravating factor of submission of false evidence, false statements, or
other deceptive practice during the disciplinary process. The hearing judge found that
during trial, Ms. Maldonado testified that she was a member of the Bars of the District of
Columbia and Texas. Later, she attempted to clarify that she was only licensed in the
District of Columbia but that she could obtain reciprocity in Texas. During cross-
examination, Ms. Maldonado changed her story again, stating that she just needed to pay
her dues in Texas. Further, Ms. Maldonado testified that she graduated from law school in
December 1996 and took the Texas bar in February 1997 but did not pass. In her
34
deposition, Ms. Maldonado stated she did not take the bar exam after graduating from law
school because she wanted to focus on working full-time. Ms. Maldonado contends that
her testimony was not deceptive or false and that her testimony clarified her admission
status. She also believed the Texas bar exam question during deposition was irrelevant and
prejudicial. We agree with the hearing judge that Bar Counsel proved this aggravating
factor by clear and convincing evidence.
The hearing judge found that Ms. Maldonado refused to acknowledge the wrongful
nature of her conduct which is an additional aggravating factor. She has continued to blame
Dr. Wiley’s staff calling them rude and disrespectful. Moreover, Ms. Maldonado filed a
Complaint in the United States District Court for the District of Maryland against the
Attorney Grievance Commission and an Assistant Bar Counsel alleging defamation and
seeking damages. In this Complaint, Ms. Maldonado claimed that Bar Counsel’s charges
were false. The hearing judge concluded this conduct, along with her testimony, provided
ample evidence that Ms. Maldonado does not recognize her conduct as wrongful. In
response, Ms. Maldonado stated that she is personally hurt by this matter and that she has
dismissed the good-faith complaint in the District Court.
We agree with the hearing judge that Bar Counsel proved the aggravating factor of
refusal to acknowledge the wrongful nature of the conduct. See Mixter, 441 Md. at 530.
Ms. Maldonado has yet to acknowledge any wrongdoing. At oral argument, Ms.
Maldonado did not show remorse for her actions and instead blamed everyone but herself
35
for this disciplinary action.10 Ms. Maldonado appears not to understand that she is before
us not because of some conspiracy between Home Properties, Bar Counsel, and her
sponsoring attorney, but instead because of her own wrongdoing. We are concerned that
she does not appear to understand the wrongful nature of her conduct.
The hearing judge found substantial experience in the practice of law as an
aggravating factor. We agree that Ms. Maldonado has substantial experience as an attorney
in the District of Columbia in toxic tort litigation. Ms. Maldonado does not except to this
aggravating factor.
The hearing judge found the aggravating factor of illegal conduct because Ms.
Maldonado engaged in the unauthorized practice of law, in violation of § 10-601(a) of the
Business Occupations & Professions of the Maryland Code, when she drafted Ms. Duren’s
complaint, amended complaint, and any other appellate pleadings that she drafted without
a pro hac vice sponsor. Md. Code (1989, 2018 Repl. Vol.), Business Occupations &
Professions § 10-601(a). Ms. Maldonado does not except to this aggravating factor. We
agree that Bar Counsel has proven this aggravating factor by clear and convincing
evidence.
The final aggravating factor the hearing judge found was the likelihood of a
repetition of the misconduct because Ms. Maldonado refuses to acknowledge that her
conduct was wrong. The hearing judge believed this refusal makes it highly likely that she
10
For example, at oral argument, Ms. Maldonado begins by stating, “[a]nd I’d like to start
out . . . to say that I do believe that this was a political hit against me. . . .”
36
will repeat the actions again. In response, Ms. Maldonado states there is no chance of
repetition. She states that this proceeding was started from the “unethical and evil foul
play” by the Complainant.11 This Court agrees with the hearing judge. Rather than accept
responsibility, Ms. Maldonado sees herself as the sole advocate left for Ms. Duren and
others in Ms. Duren’s situation. We are persuaded that if a case with similar facts as Ms.
Duren’s case appeared, that Ms. Maldonado might well take the case and engage in similar
conduct, to the detriment of her client. Accordingly, we affirm the hearing judge’s finding
of the aggravating factor that such misconduct is likely to occur again.
Among the factors for mitigation, the hearing judge found that Ms. Maldonado had
no public disciplinary record in any jurisdiction. Further, that she had an outstanding
reputation as an experienced practitioner of toxic torts and mold litigation. Bar Counsel
does not except to these findings. Ms. Maldonado claims the hearing judge should have
found twenty additional mitigating factors, most of which tout her own merits or denigrate
the character or conduct of her sponsoring counsel, opposing counsel in the toxic mold
litigation, Bar Counsel, and the Commission.12 The majority of Ms. Maldonado’s
11
We reiterate that we do not find there was any misconduct on the part of the Complainant.
12
These additional mitigating factors include some that are recognized by this Court and
others that are not recognized by this Court. In total the list includes: (1) absence of prior
attorney discipline; (2) “excellent legal talents, character, and integrity”; (3) “witnesses in
the hearing testified that [she] is the Number 1 Toxic Mold Attorney in the Nation”; (4)
“100% Win Record when serving as Lead Counsel”; (5) “unethical sabotage by
complainant”; (6) “James Liskow unethically bullied and threatened Chris Nace,
Respondent’s Maryland supervising attorney, behind my back”; (7) “Complainant, James
Liskow, unethically filed this defamatory grievance against me, the Respondent, as an
unethical litigation tactic”; (8) “James Liskow, unethically filed this defamatory grievance
against me, the Respondent, as an unethical litigation tactic”; (9) “Complainant, James
37
mitigating factors are factual findings or matters irrelevant to this proceeding. We do not
believe there are additional relevant mitigating factors in this matter.
Bar Counsel recommended that we disbar Ms. Maldonado for her multiple
violations of the Rules and the numerous aggravating factors found in this case. Bar
Counsel considers Ms. Maldonado’s core violations that support disbarment are Rules
4.1(a), 5.5(a), and 8.4(c) and (d) because they demonstrate that Ms. Maldonado’s
misconduct was dishonest, deceitful, and prejudicial to the administration of justice. See
Attorney Grievance. Comm’n v. Vanderlinde, 364 Md. 376, 418 (2001) (“Unlike matters
relating to competency, diligence and the like, intentional dishonest conduct is closely
entwined with the most important matters of basic character to such a degree as to make
intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty
are, or are not, present in any attorney’s character. Disbarment ordinarily should be the
Liskow, never called Respondent to get the truth/facts”; (10) “the Attorney Grievance
Commission of Maryland unethically aided and abetted Complainant. . .”; (11) “The AGC
of Maryland horrifically and illegally never called Respondent nor Ms. Duren to get the
facts.”; (12) “Improper withdrawal by Christopher Nace, the Maryland sponsoring attorney
of Respondent, Ms. Maldonado”; (13) “Complainant, James Liskow, and Chris Nace,
sabotaged the mold tester, Jeff Pace.”; (14) “Legal error by Judges at all three levels in
Maryland due to lack of mathematical and scientific knowledge”; (15) “Legal errors by
Respondent’s lawyers. Ineffective assistance of counsel and price gauging by all lawyers.”;
(16) “Heroic efforts by Respondent, Ms. Maldonado, to save Ms. Duren’s case including
finding second Maryland and United States Supreme Court barred attorney, Relinda
Louisy, to petition the U.S. Supreme Court”; (17) “Thus, unethical Complainant’s
defamatory grievance interfered with the underlying toxic mold case from beginning to
end. This is a disgusting, illegal litigation tactic.”; (18) “The AGC of Maryland as
mentioned, unethically interfered throughout the underlying toxic mold litigation”; (19)
absence of a dishonest or selfish motive; (20) “Sudden Stage IV diagnosis of Respondent’s
Ms. Maldonado’s mother on December 8th, 2015, and her impending death in February
2016.”
38
sanction for intentional dishonest conduct.”). Bar Counsel also relies on Attorney
Grievance Comm’n v. Barneys, 370 Md. 566 (2002), a case where we disbarred an attorney
who engaged in the unauthorized practice of law and other intentional misconduct. Finally,
Bar Counsel notes the multiple aggravating factors in this case and that none of the
mitigating factors present compelling extenuating circumstances warranting a lesser
sanction.
Ms. Maldonado recommends that this Court dismiss the petition and take no
remedial action. She maintains she was simply protecting the rights of her client and
contends this proceeding was initiated due to the Complainant’s impure motives that then
were improperly pursued by Bar Counsel. She provides no authority to support this
recommendation.
In this matter, the hearing judge found and we affirmed violations of both
unauthorized practice of law and intentionally dishonest misconduct. For either of these
violations individually, “this Court has repeatedly ordered disbarment absent compelling
extenuating circumstances.” Attorney Grievance Comm’n v. Ghatt, 461 Md. 228, 277
(2018). “Conduct ‘involving dishonesty, fraud, or deceit, carries the risk of the ultimate
sanction by this Court.’” Attorney Grievance Comm’n v. Keiner, 421 Md. 492, 523 (2011)
(quoting Attorney Grievance Comm’n v. White, 354 Md. 346, 366 (1999)). “In
unauthorized practice of law cases, ‘we primarily consider[ ] factors of deterrence, whether
the respondent’s conduct was willful and deliberate, and whether the respondent
cooperated with Bar Counsel’s investigations.”’ Attorney Grievance Comm’n v. Shephard,
39
444 Md. 299, 339 (2015) (quoting Attorney Grievance Comm’n v. Shryock, 408 Md. 105,
126 (2009)).
For a prior case where both unauthorized practice of law and intentionally dishonest
misconduct were found, Bar Counsel directed us to Attorney Grievance Comm’n v.
Barneys, 370 Md. 566 (2002) in support of disbarment. In Barneys, the attorney was barred
in several state and federal jurisdictions. 370 Md. at 571–72. The attorney was not barred
in Maryland, but opened a law office and entered his appearance in five cases in Maryland
state court. Id. The hearing judge also found the attorney engaged in multiple instances of
dishonest and deceitful misconduct. Id. at 574. We concluded:
Based on the Court’s trend of disbarring attorneys for unauthorized practice
violations under [Rule] 5.5(a) violations, Respondent’s multiple
representation of clients in Maryland state courts, his deceptive conduct
regarding the Sanchez/Gates Bail Bonds incident, the misrepresentations to
Bar Counsel’s investigator and on his Petition for admission, and the relative
insubstantiality of any possibly mitigating circumstances, disbarment is the
appropriate sanction.
Id. at 592.
Likewise, in Attorney Grievance Comm’n v. Alsafty, 379 Md. 1 (2003) we held that
disbarment was an appropriate sanction when, among other things, the attorney who was
not authorized to practice law in Maryland represented multiple clients in civil cases, filed
twenty pleadings in Maryland courts, and failed to inform clients of his limitations. Id. at
7–8.
More recently, in Attorney Grievance Comm’n v. Shephard, this Court disbarred an
attorney unlicensed to practice in Maryland who became managing attorney of a Maryland
law firm and met with clients. 444 Md. 299, 343 (2015). In determining the appropriate
40
sanction, this Court evaluated the attorney’s conduct in Shephard in relation to Barneys
and Alsafty. While the Court noted that the conduct in Shephard did not amount to that of
Barneys and Alsafty, the Court ultimately concluded that disbarment was an appropriate
sanction in Shephard as well. We stated:
We note that both [Barneys and Alsafty] involved an unlicensed attorney’s
appearance in state court actions and intentional deceitful or dishonest
conduct in violation of 8.4(b) and (c). By contrast, in this case, Respondent
did not appear in state court on behalf of any client, nor has Respondent been
found to have violated [Rule] 8.4(b) or (c). In addition, though the facts of
this case demonstrate neither a failure to cooperate with Bar Counsel nor
willful and deliberate dishonest or deceitful behavior, it is clear that
Respondent willfully and deliberately assumed responsibilities as a
“Managing Attorney” in a law firm in Maryland, met with clients in
Maryland, and undertook the representation of those clients in Maryland. In
doing so, she misled clients and the general public by failing to disclose the
fact that she was not licensed to practice law in Maryland. Further, during
Respondent’s tenure as “Managing Attorney,” several clients paid fees to
Gilmore and did not receive the same services that they were promised. As
an attorney with 18 years of experience, albeit practicing in other states, we
would expect Respondent to understand the nature of her actions and the
responsibilities related thereto. Moreover, as Petitioner pointed out,
Respondent applied for admission to the Maryland Bar at some point during
her tenure at Glenmore, indicating her awareness that she was required to
practice in this State.
Id. at 341–42 (cleaned up).
We acknowledge that the facts of this proceeding are unique in that Ms.
Maldonado’s conduct was not as egregious as some of these prior cases concerning
unauthorized practice of law in Maryland. Ms. Duren was Ms. Maldonado’s only
Maryland client and Ms. Maldonado did not collect any fees from Ms. Duren. Ms.
Maldonado acknowledged that she could not practice in Maryland without a pro hac vice
sponsor and at times during this litigation had a pro hac vice sponsor. Unlike many of the
41
cases before this Court when Rule 5.5 is violated, Ms. Maldonado has not established an
office in Maryland, produced any letterhead inferring a Maryland license, or advertised to
the public that she is authorized to practice in Maryland.
However, while the facts in this proceeding are unique, we still find our prior cases
on the unauthorized practice of law instructive. We find similarities between this case and
Barneys, Alsafty, and Shephard. First, Ms. Maldonado represented Ms. Duren in active
litigation. In fact, Ms. Maldonado is more culpable because she used the guise of “pro se”
filings to work around the absence of a pro hac vice sponsor. We also have concluded that
Ms. Maldonado violated Rule 8.4(c), and the record is filled with instances of Ms.
Maldonado failing to respond to bar counsel and failing to accept responsibility for her
actions. Finally, as in Shephard, Ms. Maldonado has been practicing for many years and
we expect Ms. Maldonado to understand the wrongful nature of her action. Also impacting
our conclusion is the fact that Ms. Maldonado’s conduct in failing to order the transcripts
caused Ms. Duren to lose her right of appeal in the mold litigation case.
Based upon our review of the record, we agree with Bar Counsel that disbarment is
the appropriate sanction. Under the circumstances of this case, and given the numerous
aggravating factors, disbarment is appropriate “to protect the public and the public’s
confidence in the legal profession.” Attorney Grievance Comm’n v. Allenbaugh, 450 Md.
250, 277 (2016) (citation omitted). Ms. Maldonado’s unauthorized practice of law, refusal
to accept any responsibility for her actions, and avoidance of this disciplinary action reflect
42
adversely on her honesty and trustworthiness. Without any compelling extenuating
circumstances, we conclude disbarment is the only appropriate sanction.
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 19-709(d), FOR
WHICH SUM JUDGMENT IS
ENTERED IN FAVOR OF THE
ATTORNEY GRIEVANCE
COMMISSION AGAINST MELINDA
MALDONADO.
43