Attorney Grievance Comm'n of Md. v. Davis

486 Md. 116

303 A.3d 946

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Donald Dorin DAVIS

AG No. 28 September Term, 2022

Supreme Court of Maryland.

October 23, 2023

Submitted by Erin A. Risch, Acting Bar Counsel ( Dolores O. Ridgell, Acting Bar Counsel, Attorney Grievance Commission of Maryland, Annapolis, MD, for Petitioner

No submission on behalf of Respondent

Submitted to: Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ.

Eaves, J.

IINTRODUCTION

On November 3, 2022, the Attorney Grievance Commission of Maryland ("Petitioner" or "the Commission"), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action ("Petition") in this Court, alleging that Donald Dorin Davis, Respondent, violated the following Maryland Attorneys’ Rules of Professional Conduct ("MARPC") ¹ :

• 19-301.1: Competence (1.1);

• 19-301.3: Diligence (1.3);

• 19-301.4: Communication (1.4);

• 19-301.5: Fees (1.5);

• 19-301.16: Declining or Terminating Representation (1.16); • 19-308.1: Bar Admissions and Disciplinary Matters (8.1); and

• 19-308.4: Misconduct (8.4).

Pursuant to Maryland Rules 19-722(a) and 19-727(e), this Court referred the matter to the Circuit Court for Prince George's County and designated the Honorable Carol A. Coderre (the "hearing judge") to conduct an evidentiary hearing and provide findings of fact and conclusions of law. After a one-day hearing held on May 25, 2023, ² the hearing judge found clear and convincing evidence that Respondent violated Rules 1.1; 1.3; 1.4; 1.5(a); 1.16(d); 8.1(a)–(b); and 8.4(a), (c), and (d). Neither Respondent nor the Commission has filed exceptions with this Court. Petitioner recommends that we indefinitely suspend Respondent from the practice of law. For the reasons discussed below, we agree with the hearing judge's conclusions and with the Commission's recommendation.

Before discussing the hearing judge's findings of fact, we discuss some pertinent procedural history. On February 17, 2023, Bar Counsel served Petitioner with a copy of the Petition, interrogatories, and requests for both production of documents and admissions of fact and genuineness of documents, including 29 attached exhibits. ³ Having received no response, on March 20, 2023, Petitioner moved for an order of default, which the hearing judge granted. Despite the order of default, the hearing judge stated that she would allow the Commission to "present such evidence as it deem[ed] necessary to allow the [hearing judge] to carry out her assigned function as set forth in Maryland Rule 19-727." Respondent neither moved to vacate that order of default nor participated in the disciplinary hearing. Pursuant to Maryland Rule 2-424(b), the hearing judge deemed admitted the averments contained in Petitioner's request for admissions and subsequently issued her Findings of Fact and Conclusions of Law. No exceptions—from either party—have been filed, so we may treat the hearing judge's "findings of fact as established." Md. Rule 19-740(b)(2)(A); see also Att'y Grievance Comm'n v. Parris , 482 Md. 574, 585, 289 A.3d 703 (2023). We now summarize those findings.

IITHE HEARING JUDGE'S FINDINGS OF FACT

A. Background

Respondent was admitted to the Maryland Bar in December 2019 and maintained an office for the practice of law in Washington, D.C., until sometime in 2021 when he closed that office due to hardships caused by the COVID-19 pandemic. ⁴

B. Representation of Jeremy McGilvrey

Jeremy McGilvrey and Natalie Treurniet (collectively referred to as "the Parents") had a child together—T.T. ⁵ —but the Parents never married. In November 2018, Mr. McGilvrey filed against Ms. Treurniet and in the Circuit Court for Montgomery County a complaint for custody, access, and visitation. The Parents eventually entered into a custody agreement whereby Ms. Treurniet would retain physical and legal custody of T.T.; the Parents agreed that Mr. McGilvrey would remain a de facto parent but consented to T.T.’s adoption by Ms. Treurniet's husband. ⁶ The latter point of agreement was conditioned on Mr. McGilvrey's ability to seek custody and visitation.

Believing that Ms. Treurniet was violating the custody agreement by impeding his reunification with T.T., Mr. McGilvrey retained Respondent on August 4, 2020, to assist in the "execution and fulfillment of" the Parents’ custody agreement. Respondent's retainer agreement required a retainer of $3,000, and Mr. McGilvrey paid Respondent $2,500 via cashier's check that same day. To seek enforcement of the custody agreement, Respondent drafted for Mr. McGilvrey a motion alleging that Ms. Treurniet was in contempt of the court order enforcing that agreement (the "contempt motion"), and both Respondent and Mr. McGilvrey signed the contempt motion on December 15, 2020. In a January 6, 2021, email (the "January 6 email") to Mr. McGilvrey, Respondent knowingly and intentionally misrepresented that he filed that motion:

You[r] motion was filed yesterday with the clerk. The clerk will review the document, confirm it is correct, accept it and then assign a judge. This takes a day. I will send you the stamped, accepted copy as soon as I receive it. Then we will get a scheduling notice and we can discuss next steps.

Respondent closed his law practice that same month shortly after sending the January 6 email due to constraints from the COVID-19 pandemic, but he never advised Mr. McGilvrey of that decision. On four different days in January 2021, Mr. McGilvrey attempted to contact Respondent, asking for an update on the contempt matter; Respondent never replied, and there was no further communication between the two. The hearing judge also found that Respondent never provided any billing invoices to Mr. McGilvrey, nor did Respondent refund any portion of the $2,500 Mr. McGilvrey paid to Respondent.

C. Bar Counsel's Investigation

After Mr. McGilvrey filed a complaint with the Commission, Bar Counsel emailed Respondent on July 12, 2021, requesting a written response by July 27. Respondent replied on July 27, misrepresenting the scope of the work he performed for Mr. McGilvrey and claiming—without evidence—that his fees associated with the contempt matter exceeded the $2,500 Mr. McGilvrey paid. Thus, according to Respondent, Mr. McGilvrey was not owed a refund.

By an August 10 email, Bar Counsel requested within 14 days additional information from Respondent. Respondent did not comply, so Bar Counsel again sent its request on September 8 (via email and certified first-class mail), requesting a reply by September 22. Respondent replied that same day, indicating that he was in California, would be back in Maryland the following week, and, at that point, would review Bar Counsel's request. On September 29, Respondent provided incomplete responses and failed to provide any of the documents requested by Bar Counsel. Based on what little information Respondent did provide, however, the hearing judge found that Respondent knowingly and intentionally misrepresented to Bar Counsel that he never sent the January 6 email to Mr. McGilvrey.

On December 8 and 29, 2021, and January 7 and 27, 2022, Bar Counsel sent Respondent a request for additional information. The first three requests all were received by Respondent, but Bar Counsel never received a reply. Respondent replied to Bar Counsel's January 27 request on February 4, but his responses were incomplete, and he indicated that all future requests should be sent via regular mail, as he no longer was monitoring his email address.

Dissatisfied with his February 4 responses, Bar Counsel sent on February 10 via regular mail a request for additional information with a reply date of February 25. Bar Counsel sent subsequent letters dated March 7 and April 21, but Respondent did not reply to any of those requests.

Additional facts will be discussed as necessary.

IIITHE HEARING JUDGE'S CONCLUSIONS OF LAW

The hearing judge concluded that Respondent violated MARPC 1.1; 1.3; 1.4; 1.5(a); 1.16(d); 8.1(a)–(b); and 8.4(a), (c), and (d).

The hearing judge concluded that Respondent's failure to file the motion for contempt or communicate with Mr. McGilvrey constituted a violation of Rule 1.1. And as to Rule 1.3, the hearing judge relied on the same reasons for her conclusion as to the Rule 1.1 violation (as well as the reasons for Respondent's Rule 1.4 violation discussed immediately below).

According to the hearing judge, Respondent violated Rule 1.4 when he failed to (1) reply to Mr. McGilvrey's emails dated January 12, 13, 18, and 20, 2021, and (2) provide periodic billing statements to Mr. McGilvrey.

Although the hearing judge acknowledged that Respondent drafted the contempt motion for Mr. McGilvrey, she concluded that Respondent's failure to file the motion and obtain any meaningful results for Mr. McGilvrey constituted a Rule 1.5(a) violation. The hearing judge also concluded that Respondent's failure to refund any portion of the $2,500 paid by Mr. McGilvrey also constituted a violation of Rule 1.5(a).

Concerning Rule 1.16(d), the hearing judge concluded that Respondent violated that Rule when he failed to notify Mr. McGilvrey that Respondent was shutting down his law practice and provide Mr. McGilvrey with sufficient time to retain successor counsel. Additionally, the hearing judge concluded that Respondent's failure to substantiate the time he spent on Mr. McGilvrey's matter, render any services of value, and issue a refund to Mr. McGilvrey all constituted a violation of Rule 1.16(d).

The hearing judge concluded that Respondent's September 29, 2021, correspondence to Bar Counsel, wherein he stated that he did not send the January 6 email to Mr. McGilvrey, was a knowing misrepresentation, constituting a violation of Rule 8.1(a). Respondent also violated Rule 8.1(b), the hearing judge concluded, when he routinely failed to reply to Bar Counsel's correspondences from August 2021 to April 2022.

Because the hearing judge concluded that Respo...