Attorney Grievance Comm'n of Md. v. Hoerauf

469 Md. 179

229 A.3d 802

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Gwyn Cara HOERAUF

Misc. Docket AG No. 7, Sept. Term, 2019

Court of Appeals of Maryland.

June 26, 2020

Jessica M. Boltz, Asst. Bar Counsel (Lydia E. Lawless, Bar Counsel Attorney Grievance Commission of Maryland), for Petitioner.

No submission on behalf of the Respondent.

Submitted to: Barbera, C.J., McDonald, Watts, Hotten, Getty, Booth, Biran, JJ.

Biran, J.

On June 20, 2019, Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Respondent, Gwyn Cara Hoerauf, alleging violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") and the Maryland Attorneys' Rules of Professional Conduct ("MARPC").¹ Petitioner subsequently filed an Amended Petition for Disciplinary or Remedial Action ("Amended Petition"). The Amended Petition concerned three separate complaints against Respondent and alleged violations of MLRPC 1.1 (Competence), 1.2(a) (Scope of Representation), 1.3 (Diligence), 1.4(a) and (b) (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a), (c), and (d) (Misconduct). Additionally, Petitioner alleged that Respondent violated MARPC 19-303.3(a)(1) (Candor Toward the Tribunal), 19-304.3 (Dealing with Unrepresented Person), 19-308.1(a) and (b) (Bar Admission and Disciplinary Matters), and 19-308.4(a), (c), and (d) (Misconduct).

On June 20, 2019, pursuant to Maryland Rule 19-722(a), this Court transmitted this matter to the Circuit Court for Montgomery County and designated the Honorable Christopher C. Fogleman (the "hearing judge") to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Maryland Rule 19-727. On August 8, 2019, pursuant to Maryland Rule 19-723(a), Respondent was served with the following: Writ of Summons issued June 28, 2019, by the Circuit Court for Montgomery County; Order of the Court of Appeals dated June 20, 2019; and both the Petition and Amended Petition. On August 30, 2019, pursuant to Maryland Rule 2-401(d)(2), Respondent was served with the following: Petitioner's First Set of Interrogatories; Petitioner's First Request for Document Production; and Petitioner's Request for Admissions of Fact and Genuineness of Documents with Exhibits 1-37.

On September 11, 2019, Petitioner filed a Motion for Order of Default after Respondent failed to answer the Amended Petition within 15 days of service. On October 10, 2019, the hearing judge issued an Order of Default and scheduled a hearing for November 15, 2019. The Order notified Respondent that a default had been entered, and that she could move to vacate the Order of Default within 30 days. Respondent did not move to vacate the Order of Default.

Respondent did not appear at the November 15, 2019 hearing, and the hearing judge admitted Petitioner's exhibits into evidence. Petitioner submitted Proposed Findings of Fact and Conclusions of Law on December 9, 2019, based on the evidence admitted at the hearing. The hearing judge issued Findings of Fact and Conclusions of Law on December 30, 2019, based on clear and convincing evidence. Neither Petitioner nor Respondent filed any exceptions, and Petitioner recommended disbarment.

On March 18, 2020, Petitioner filed a request to waive oral argument. This Court issued an Order on March 27, 2020, directing Respondent to show cause why oral argument should be held and stating that, if Respondent failed to show such cause by April 6, 2020, the Court would consider the case on the papers. Respondent did not respond to the Order to Show Cause, and on April 9, 2020, this Court granted Petitioner's request to waive oral argument. On April 24, 2020, we issued a per curiam order disbarring Respondent. Attorney Grievance Comm'n v. Hoerauf , 468 Md. 321, 322, 227 A.3d 219 (2020). We explain in this opinion the reasons for that action.

IThe Hearing Judge's Findings of Fact

We summarize here the hearing judge's findings of fact.

Background

Respondent was admitted to the Maryland Bar on December 12, 2000. At all times relevant hereto, Respondent maintained an office for the practice of law in Montgomery County, Maryland.

Complaint of Peggy Lyles/Representation of Stacy Simmons

In December 2015, Peggy Lyles retained Respondent to represent her son, Stacy Simmons, in two criminal cases pending in the District Court of Maryland for Montgomery County ("District Court").² Respondent agreed to represent Mr. Simmons for a flat fee of $1,000, and required a $300 initial payment before she would enter her appearance or visit Mr. Simmons in jail. Ms. Lyles made the initial $300 payment to Respondent on December 17, 2015, and provided Respondent with a post-dated check for January 1, 2016 for the remaining $700. Respondent represented Mr. Simmons in these two cases without issue, and they were resolved on January 4, 2016, through a plea agreement.

On or about January 4, 2016, Ms. Lyles asked Respondent what the fee would be to represent Mr. Simmons in a third criminal case;³ a hearing had been scheduled in that case for January 12, 2016. Respondent advised Ms. Lyles that she would appear at the January 12 hearing for $250, but that the fee needed to be paid in advance; Ms. Lyles agreed to this arrangement. Respondent visited Mr. Simmons in jail on the evening of January 11, 2016. Mr. Simmons confirmed that he wanted to retain Respondent as counsel for this third case. At 10:30 p.m. on January 11th, Respondent sent a text message to Ms. Lyles stating:

I went to see Stacey [sic] earlier tonight and he would like me to appear tomorrow and his traffic matter scheduled for February. As for tomorrow, I am agreeing to appear and argue a motion to dismiss for $250. If I win or a loss is followed by a plea, that is my whole fee for tomorrow. If I have to come back or try the case, my fee will be an additional $250. Per our discussion earlier, u were going to bring a check tomorrow for the minimum fee.

Ms. Lyles responded to Respondent's text at 6:15 a.m. the next day, January 12, and stated, "Gwyn[.] We have appointments this morning (last minute from appointment yesterday)[.] I will meet you at your office as soon as we are done without fail...." At 8:45 a.m., Respondent replied, "I have an emergency with my son. Stacey [sic] wanted me to come to argue the motion to dismiss. He should b [sic] entitled to a postponement. If he can get one he should." Respondent did not have an emergency with her son on January 12, 2016. Respondent did not appear at the hearing, and the State entered a nolle prosequi to Mr. Simmons's charges.

On March 3, 2016, Ms. Lyles filed a complaint against Respondent with Bar Counsel. Bar Counsel forwarded the complaint to Respondent on March 23, 2016, and requested a written response within 15 days. Respondent failed to respond. Bar Counsel wrote to Respondent again on April 29, 2016, and requested a response within 10 days. Respondent replied by letter dated May 17, 2016, and stated, "[Ms. Lyles] is only angry now that her intended theft of my services did not succeed." Respondent also made the following statements:

From the outset of our interaction, Ms. Lyles impressed me as dishonest and untrustworthy. When she first retained me, she indicated that she could pay my fees, in part, by "selling" me some of the purses her son had stolen during his theft spree. When I expressed my surprise and disapproval at such a proposal, Ms. Lyles tried to suggest it was "a joke." I have no doubt she has acted as her son's accomplice in his theft scheme....

Peggy Lyles is a malicious and disingenuous person. She apparently acts as a broker for her son's stolen property, which makes her just as guilty of theft as her son.

On July 22, 2016, Bar Counsel forwarded Respondent's letter to Ms. Lyles. On August 22, 2016, Ms. Lyles provided Bar Counsel with her written comments and attached copies of text messages between her and Respondent. On September 21, 2016, Bar Counsel wrote to Respondent, requesting a written response to Ms. Lyles's August 22 letter. Respondent failed to respond. On October 18, 2016, Bar Counsel sent another letter to Respondent, requesting that she respond to Ms. Lyles's letter of August 22. Respondent replied to Bar Counsel by letter dated November 1, 2016, and stated the following regarding her decision not to appear at Mr. Simmons's January 12 hearing after having received Ms. Lyles's text about having a last-minute appointment: "Rather than get into a debate about whether she was in fact going to honor our agreement, I informed her that I also was involved in an emergency and that if her son wanted me to represent him, he could ask for a postponement."

Respondent also made the following statements in her November 1 letter to Bar Counsel:

My descriptions of Ms. Lyles' veracity and character have been civil, despite that I find her to be a despicable and vindictive individual. She should be relieved that Stacy Simmons, her son, despite his many short-comings, does not exhibit her bad character....

So, in the interest of candor, I do resent being required to defend myself from frivolous complaints like Ms. Lyles'. It is not a reflection of my lawyering as she suggests, but rather on my generosity and desire to help people. Unfortunately, some of those people are unscrupulous, ungrateful, and likely sociopaths. As the saying goes, "no good deed goes unpunished." Ms. Lyles embodies that principle....

She now seems to backtrack on her earlier claims that a "young white male" entered my office, right in front of her and me, and used drugs. She now says it is "possible" that I did not see him use across from my desk. It was not possible for me to have seen the "young white male" do anything in my office because there was only one young white male present and he was obviously a figment of Ms. Lyles' imagination. He was not visible to those of us whose

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