Attorney Grievance Comm'n of Md. v. Ficker

477 Md. 537

271 A.3d 227

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Robin Keith Annesley FICKER

Misc. Docket AG No. 17, Sept. Term, 2020

Court of Appeals of Maryland.

March 3, 2022

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

Argued by William C. Brennan of Brennan, McKenna & Lawlor, Chtd., Greenbelt, MD, for Respondent.

Getty, C.J.,^* McDonald Watts Hotten Booth Biran Gould, JJ.

McDonald, J. Respondent Robin K.A. Ficker has been disciplined for professional misconduct on eight occasions, both in this Court and the United States District Court for the District of Maryland. Beginning in 1990, when the Attorney Grievance Commission filed the first set of charges against Mr. Ficker, those occasions arose, variously, from his failures to appear in court on dates scheduled for his clients’ trials, failures to adequately prepare for his clients’ cases, failures to supervise the lawyers whom he employed to work on his clients’ cases, lack of candor to the court, and, in one instance, failure to safeguard client property. Four disciplinary proceedings resulted in published opinions. In all, three generations of Bar Counsel have brought charges and 27 members of this Court have deliberated whether a particular sanction for Mr. Ficker's repeated infractions would deter further such practices and thus protect those who seek out his services. The Court's prior deliberations resulted in private reprimands, public reprimands, and indefinite suspensions of Mr. Ficker from the practice of law.

Here, once again, the Commission has charged Mr. Ficker with a slate of violations of the Maryland Attorneys’ Rules of Professional Conduct ("MARPC"). In this case, the charges all stem from a situation in which Mr. Ficker failed to appear for a trial in the District Court sitting in Prince George's County; assured the trial judge that his office had contacted his absent client about the trial date without a basis to believe that assurance to be true; and made contradictory statements as to whether he had personally signed a continuance motion that contained misstatements and that in fact had been signed and filed by his office assistant (a disbarred former attorney).

While a missed court date by an over-scheduled attorney who relies on office staff to meet the demands of a busy schedule or a good faith fumble in the filing of a continuance motion would not typically result in disbarment, the circumstances of Mr. Ficker's cases are far from typical. Mr. Ficker has consistently failed to comply with elementary standards of the legal profession that are intended for the protection of clients and for the efficient administration of justice in our courts. The sanctions that the Court has imposed on Mr. Ficker in the past have apparently not had the desired effect.

The process must come to an end. Mr. Ficker has forfeited the privilege of practicing law in Maryland and will be disbarred.

I

Mr. Ficker's Disciplinary History

Mr. Ficker has been a member of the Maryland Bar since June 1973. His lengthy disciplinary history since his admission may be unique in the annals of the bar. This Court has previously observed that his misconduct regarding a single client "cannot be viewed in a vacuum."¹ So, too, the violations currently at issue must be considered in the context of Mr. Ficker's persistent failure to operate his law practice in compliance with the rules of professional conduct. It has been said that "what's past is prologue."² We begin with a review of Mr. Ficker's past misconduct.

This is Mr. Ficker's fifth appearance before this Court as a respondent in an attorney disciplinary proceeding. See Attorney Grievance Comm'n v. Ficker , 319 Md. 305, 572 A.2d 501 (1990) ( Ficker I ); Attorney Grievance Comm'n v. Ficker , 349 Md. 13, 706 A.2d 1045 (1998) ( Ficker II ); Attorney Grievance Comm'n v. Ficker , 399 Md. 445, 924 A.2d 1105 (2007) ( Ficker III ); Attorney Grievance Comm'n v. Ficker , 454 Md. 76, 163 A.3d 190 (2017) ( Ficker IV ). In addition to those proceedings, Mr. Ficker has twice been the subject of private reprimands by the Commission, as well as reciprocal disciplinary proceedings in the federal district court.³

Ficker I

In Ficker I , this Court determined that Mr. Ficker violated the rules of professional conduct in his representation of two clients during the 1980s. In one case, a woman had been charged with driving while intoxicated. 319 Md. at 308-09, 572 A.2d 501. Mr. Ficker agreed to represent her at her trial in the District Court. However, he did not enter his appearance in the case, as required by the Maryland Rules, and did not appear for the trial, apparently because he failed to record the trial date on his calendar. Unrepresented, the client pled guilty to the charge.

The second case also involved a client charged with drunk driving and facing trial in the District Court sitting. 319 Md. at 309-11, 572 A.2d 501. Mr. Ficker went to court on the initial trial date but did not enter his appearance, again contrary to the Maryland Rules. The trial was continued at the State's request because the arresting officer was not on hand, but Mr. Ficker did not receive notice of the new trial date because he had not entered his appearance. When the case came up again for trial, his unrepresented client was able to explain the situation to the court, and the trial was continued again. This time, Mr. Ficker received actual notice of the new trial date from the client's mother. He had another matter scheduled for that date in a different court, and he prepared a motion for another continuance of the trial, but his continuance motion never reached the District Court because he had put the wrong zip code on the envelope. Mr. Ficker simply assumed that the continuance motion would be granted and did not appear for the client's trial. Although the District Court judge offered to grant the client yet another continuance, the client elected to proceed pro se and pled guilty to the charge.⁴

In the ensuing disciplinary proceeding, this Court concluded that Mr. Ficker had violated rules of professional conduct regarding neglect of matters entrusted to an attorney, conduct prejudicial to the administration of justice, and lack of diligence. The Court also found that Mr. Ficker had habitually violated a court rule requiring an attorney to enter an appearance in a case – which was itself another violation of the applicable ethical rules.⁵ In considering the appropriate sanction for these violations, the Court noted that the hearing judge in the disciplinary proceeding had opined that Mr. Ficker now understood "that he cannot again take the filing or approval of his motions for granted" and found that Mr. Ficker had "learned his lesson" with respect to his ethical lapses. The Court issued a public reprimand.⁶ 319 Md. at 323, 572 A.2d 501.

Ficker II

Before long, the Commission had received eight complaints regarding Mr. Ficker's conduct between 1988 and 1992 and once again initiated disciplinary proceedings. During the pertinent time, Mr. Ficker was operating three law offices (in Bethesda, College Park, and Frederick) and handled an estimated 750-850 cases per year, primarily serious traffic violations. 349 Md. at 17, 706 A.2d 1045. He employed an ever-changing cast of two or three associates and one non-lawyer office assistant. One of his former associates testified that Mr. Ficker would routinely assign a case the day before trial to an associate who had neither seen the case file nor met the client. Because the case file often did not include the police report, the associate would only learn the facts of a case through discussions with the prosecutor or the police officer on the morning of trial. Id. at 18, 706 A.2d 1045.

The Court ultimately determined that Mr. Ficker had violated various provisions of the MLRPC with respect to four clients. One client faced charges including driving while intoxicated in Washington County. 349 Md. at 25-29, 706 A.2d 1045. Mr. Ficker requested a jury trial on behalf of that client, but failed to show up for the trial in the circuit court. The court found him in contempt and fined him $1,000.⁷ As it turned out, Mr. Ficker had assigned that case to a new associate who had started that same week and had never tried a case before a jury (a fact of which Mr. Ficker claimed to be unaware). The associate received the case file the day before the scheduled trial and was under the impression that his assignment was to go to the District Court and request a jury trial. The associate never entered his appearance in the case, and the client was expecting Mr. Ficker to appear on his behalf. Concluding that "[t]he deficiency here was in failing to supervise the associates ... exacerbated by the manner in which cases were assigned to them," the Court found Mr. Ficker in violation of Rules 1.1 and 5.1 for failure to ensure that a subordinate lawyer could provide competent representation to the client. Id . at 28-29, 706 A.2d 1045.

Mr. Ficker was found to have committed similar violations as to a second client who had also been charged with an alcohol-related driving offense. 349 Md. at 29-32, 706 A.2d 1045. This would be a second offense for this client, and a jury trial was requested. While Mr. Ficker and two of his associates had entered their appearances in the case, neither Mr. Ficker nor any of his associates was present when the case was called for trial. Mr. Ficker was occupied in another court at the time, and a third associate, who had no familiarity with the case and who had been scheduled to be in another court, was sent to represent the client.⁸

This Court concluded that Mr. Ficker had violated Rule 5.1 (responsibilities of supervising attorneys), noting that the case "cannot be viewed in a vacuum" and that the confusion as to the client's representation was caused by Mr. Ficker "assigning too many cases to too few lawyers, mostly at the last minute." 349 Md....