Attorney Grievance Comm'n of Md. v. Neverdon

473 Md. 631

251 A.3d 1157

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Russell A. NEVERDON, Sr.

Misc. Docket AG No. 12, Sept. Term, 2020

Court of Appeals of Maryland.

May 28, 2021

Argued by Christine M. Celeste, Assistant Bar Counsel ( Lydia E. Lawless, Bar Counsel, Attorney Grievance Commission of Maryland) for Petitioner.

Argued by Randall J. Craig, Esquire of Baltimore, MD for Respondent.

Argued Before: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Watts, J.

This attorney discipline proceeding involves an attorney who mainly, among other things, failed to properly supervise the work of a non-attorney assistant, failed to provide competent and diligent representation to clients in a personal injury and estate matter, failed to adequately communicate with the clients about the matter, and failed to recognize and advise clients of a conflict of interest and to attempt to obtain the clients' informed consent, confirmed in writing, to continue with the representation.

Russell A. Neverdon, Sr., Respondent, a member of the Bar of Maryland, was retained by relatives of a person who was struck and killed by a motor vehicle to handle a personal injury (survival action) and an estate matter that arose as a result of the individual's death. One of Neverdon's clients filed a complaint against him with Bar Counsel.

On May 19, 2020, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed in this Court a "Petition for Disciplinary or Remedial Action" against Neverdon, charging him with violating Maryland Attorneys' Rules of Professional Conduct ("MARPC") ¹ 1.1 (Competence), 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Attorney), 1.3 (Diligence), 1.4 (Communication), 1.5(b) and (c) (Fees), 1.7 (Conflict of Interest), 1.8(b) (Conflict of Interest; Current Clients), 1.15(a), (d), and (e) (Safekeeping Property), 1.16(a)(1) (Declining or Terminating Representation), 3.3(a)(1) (Candor Toward the Tribunal), 5.3(b) and (c) (Responsibilities Regarding Non-Attorney Assistants), 5.5(a) (Unauthorized Practice of Law), 8.1(a) (Bar Admission and Disciplinary Matters), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the MARPC).

On May 22, 2020, this Court designated the Honorable Anthony F. Vittoria ("the hearing judge") of the Circuit Court for Baltimore City to hear this attorney discipline proceeding. On September 28, 29, 30, and October 5, 2020, the hearing judge conducted a hearing. On November 23, 2020, the hearing judge filed in this Court Findings of Fact and Conclusions of Law, determining that Neverdon had violated MARPC 1.1, 1.2(a) ² , 1.3, 1.4, ³ 1.5, ⁴ 1.7, 1.15(a), 1.15(d), 1.16(a), 1.16(d), ⁵ 3.3(a)(1), 5.3(b), 5.5(a), 8.1(a), 8.4(c), and 8.4(a), but had not violated MARPC 1.15(e), 5.3(c), or 8.4(d). ⁶

On March 8, 2021, we heard oral argument. For the below reasons, based on the rule violations and the aggravating factors found herein, we suspend Neverdon from the practice of law in Maryland for six months, with the condition that, upon reinstatement to the practice of law in Maryland, Neverdon engage an attorney monitor for a period of one year, with the attorney monitor to be approved by Bar Counsel and paid for by Neverdon.

BACKGROUND

The hearing judge found the following facts, which we summarize.

On June 24, 1999, this Court admitted Neverdon to the Bar of Maryland. At the time of the disciplinary hearing, Neverdon had been practicing law in Baltimore City for twenty-one years. From April 2015 to March 2018, Neverdon worked full time as the Director of Special Services in the Office of the Secretary of the Department of Public Safety and Correctional Services ("DPSCS"). While holding the position, Neverdon maintained a law practice limited to handling civil cases and already existing criminal cases. While working for DPSCS, Neverdon handled approximately sixteen to twenty cases per month in his law practice, the Law Office of Russell A. Neverdon, Sr., LLC. During that time, Neverdon maintained an office for his law practice and worked in the office approximately eight hours per week, usually outside of normal business hours during the week and on weekends.

Neverdon employed Mr. Scherron J. Lee as a paralegal in his law office. Lee is not licensed to practice law in Maryland. When Neverdon worked in the office during non-business hours, he would leave notes for Lee with tasks for Lee to perform and he would leave drafts of pleadings, letters, and other documents for Lee to finalize during the next business day. During workdays, Neverdon and Lee communicated by e-mail and text messages and occasionally by telephone. ⁷

Initiation of Representation

On January 8, 2017, Rodney C. Chase, who was working as a traffic flagger at a road construction site, was struck and killed by a vehicle driven by Jason Disney. Disney had been travelling at a high rate of speed and there were at least three witnesses to the accident. Chase had no immediate family and died intestate. Prior to his death, Chase had received treatment for drug dependency that had been paid for by the Maryland Department of Health ("MDH"). Chase was survived by four cousins: Marjorie Purvey, Michael Willingham, Russell Willingham, ⁸ and Julia Chance (collectively, "the Clients"). Michael arranged for a funeral director to claim Chase's body and funeral expenses were paid for by Chesapeake Employers' Insurance Company ("CEICO"), Chase's employer's workers' compensation insurer.

On or about January 26, 2017, Neverdon met with Purvey, Michael, and Russell to discuss possibly representing them. Chance, who lived in New York, participated in the meeting by telephone. Prior to the meeting, Neverdon learned that Michael had retained, or at least spoken to, another attorney. During the meeting, Neverdon told the Clients that they could hire separate attorneys, but Neverdon did not explain, either at that time or any other time, about the possibility of a conflict of interest between the Clients and he never explained what he would need to do should such a conflict of interest arise. During the meeting, Neverdon explained that, if retained, he would "handle the case," which, according to the hearing judge, included filing the necessary documents to open an estate for Chase ("the Estate"). Neverdon did not tell the Clients during the meeting, however, that he had a full-time job with DPSCS. At the end of the meeting, the Clients agreed to retain Neverdon in connection with Chase's death.

After the meeting, Neverdon instructed Lee to prepare engagement agreements for the Clients. The engagement agreements were identical, with the exception of the name of the Client to whom a particular agreement pertained. The agreements described the scope of the representation as follows: "You have requested the Law Office of Russell A. Neverdon, Sr., LLC to represent you in connection with an Estate matter in conjunction with a wrongful death and survivorship cause of action regarding [ ] Chase." The agreements provided that the Clients were responsible for reimbursing Neverdon for any out-of-pocket expenses and included a breakdown of the potential expenses. The agreements did not require the Clients to provide a retainer or escrow payment to cover such possible expenses. The agreements detailed that Neverdon's hourly fee was $400 but indicated that the Clients would be responsible for the fee only if the Clients terminated the representation and engaged other counsel or settled the matter on their own. ⁹

Purvey and Michael were selected to serve as personal representatives of the Estate. Neverdon learned through discussions with Purvey that her relationship with Michael was contentious. ¹⁰ Neverdon learned that Purvey disapproved of the manner in which Michael handled claiming Chase's body and the funeral and Purvey believed that Michael and Chase had used drugs together in the past. Neverdon learned that Purvey's main goal for the representation was to ensure that Disney was held accountable for Chase's death. Despite what Neverdon had learned from Purvey, the engagement agreements failed to provide any information about the possibility of conflicts of interest between the Clients or what steps would need to be taken if a conflict arose.

On January 26, 2017, Michael and Russell signed the engagement agreements. Sometime after January 30, 2017, Purvey signed an engagement agreement. ¹¹

The Survival Action

Early in the representation, Neverdon concluded that there could not be a wrongful death claim because Chase did not have any dependents. Neverdon concluded that the only avenue for recovery would be a survival action brought on behalf of the Estate. Early on, Neverdon met with Purvey at least two times at her home. ¹² During those meetings, Purvey indicated that she had heard Chase had been struck from behind by Disney and that Chase may have owned an automobile. Following the initial January 26, 2017 meeting, Neverdon instructed Lee to prepare documents, including a letter to the Anne Arundel County Police Department requesting a copy of the accident report and a letter to Chase's employer seeking information. On February 23, 2017, Lee wrote a letter to the Anne Arundel County Police Department's Accident Report Unit requesting the accident report. At some point between February 23, 2017 and March 15, 2017, Neverdon received the accident report, which identified Disney as the driver of the vehicle that struck Chase and provided the name of the vehicle's insurer, Nationwide Insurance ("Nationwide"), and a policy number. The accident report did not identify who owned the vehicle that Disney had been driving and Neverdon did not investigate the matter.

On March 15, 2017, at Neverdon's instruction, Lee sent two letters to Nationwide—one requesting that Nationwide identify any personal...