Attorney Grievance Comm. v. Pennington

876 A.2d 642

387 Md. 565

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Jill Johnson PENNINGTON.

Misc. AG No. 12, September Term, 2004.

Court of Appeals of Maryland.

June 22, 2005.

Marianne J. Lee, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

N. Frank Wiggins, Washington, DC (William C. Brennan, Jr., Upper Marlboro), for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

RAKER, J.

The Attorney Grievance Commission of Maryland filed a petition with this Court for disciplinary action against Jill Johnson Pennington, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating the following Maryland Rules of Professional Conduct: (1) Rule 1.1 Competence,¹ (2) Rule 1.2 Scope of Representation,² (3) Rule 1.3 Diligence,³ (4) Rule 1.4 Communication,⁴ (5) Rule 1.5 Fees,⁵ (6) Rule 1.7 Conflict of Interest: General Rule,⁶ (7) Rule 1.16 Declining or Terminating Representation,⁷ and (8) Rule 8.4 Misconduct.⁸ Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge Steven I. Platt of the Circuit Court for Prince George's County to make findings of fact and proposed conclusions of law. Judge Platt held an evidentiary hearing and concluded that respondent had violated Rules 1.1, 1.2, 1.3, 1.4(a) and (b), 1.7(b), 1.16(a)(1), and 8.4(c) and (d) of the Maryland Rules of Professional Conduct.

I.

Judge Platt made the following findings of fact and conclusions of law:

FINDINGS OF FACT

"The material facts of this case are not in dispute. Respondent was admitted to the Bar of the Court of Appeals of Maryland on January 9, 1989. She is also admitted to practice law in the District of Columbia and Minnesota. Respondent, since 1991, has continuously maintained an office for the practice of law at 9200 Basil Court, Suite 111, Upper Marlboro, Maryland 20774, where she is a sole practitioner. Respondent is an experienced practitioner in the areas of personal injury and family law, among others.

"On September 15, 1999, Denise Haynes-Butler (hereinafter `Mrs. Butler') was involved in a motor vehicle accident with Mr. James Tidd (hereinafter `Mr. Tidd'). Mrs. Butler sustained injuries as a consequence of the motor vehicle accident. On September 20, 1999, Mrs. Butler and her husband, Gary Butler (hereinafter `Mr. Butler') retained Respondent to pursue their claims against Mr. Tidd arising from the motor vehicle accident.

"A written Retainer Agreement was signed by Mr. and Mrs. Butler on September 20, 1999, providing for Respondent to receive a contingent legal fee of one-third (1/3) of the total recovery obtained by way of settlement or forty percent (40%) of the total recovery obtained by settlement or judgment after suit was filed as payment for her legal services on their behalf.

"Mr. Tidd was insured by Amica Mutual Insurance Company (hereinafter `Amica'). Nationwide Insurance Company insured Mr. and Mrs. Butler. After consultation, the Butlers informed the Respondent that they would agree to a sum of not less than ten thousand dollars ($10,000.00) to fully settle their claims against Mr. Tidd and Amica. Respondent, on behalf of the Butlers, and Amica discussed settlement of the claims. The Respondent demanded over $20,000.00 for settlement of the Butlers' personal injury claim. Amica, in turn, extended a settlement offer of $9,500.00. Unfortunately, Respondent and Amica were unable to reach a settlement. During the period of representation, however, the Respondent successfully negotiated the settlement of the property damage claim resulting from the motor vehicle accident.

"On August 12, 2002, the Respondent filed a Complaint, Butler v. Tidd (hereinafter `Butler Complaint'), in the Circuit Court for Prince George's County against Mr. Tidd for negligence and loss of consortium and Nationwide Insurance Company for uninsured/underinsured motorist and personal injury protection claims on behalf of Mr. and Mrs. Butler. The Butler Complaint was filed two months before the Statute of Limitations tolled. Simultaneously with the submission of the Butler Complaint, the Respondent submitted another Complaint, Brown v. Austin (hereinafter `Brown Complaint'), in the Circuit Court for Prince George's County Maryland. Although the captions on these two Complaints were different, the Clerk's Office mistakenly assigned the two Complaints the same case number—CAL02-19945. The Brown Complaint was the only Complaint that the Clerk's Office showed a record for having been properly filed and docketed.

"The Respondent did not recognize the mistake made by the Clerk's Office until, on or about, October 28, 2002, when she received a letter from Mrs. Kimberly Massey, an adjuster with Amica, acknowledging receipt of the Butler Complaint and requesting verification of the date in which the summons and Complaint was filed in the Butler case. The letter also advised the Respondent that the case number provided did not correspond with the plaintiffs and defendants in the Butler Complaint.

"Respondent acknowledges that two checks were issued, by her office, in the amount of $100 on August 12, 2002: one check, Check No. 1413, drawn from her escrow account for the filing of the Brown Complaint and another check, Check No.1910, drawn from her operating account for the filing of the Butler Complaint. Check No. 1413 was negotiated by the Prince George's County Circuit County Clerk's Office on August 15, 2002. The Respondent received a returned copy of Check No. 1413 with her August 2002 bank statement. Check No.1910, which was written for the filing fees associated with the Butler Complaint was never negotiated by the Clerk's Office.

"Upon learning of this error, on or about, October 28, 2002, Respondent contacted the Clerk's Office to determine what actions would be necessary to correct the error. The Respondent was advised by the Clerk's Office that she needed to submit the file stamped copy of the Butler Complaint and the cancelled check for the filing fee. It was at this time that Respondent became aware that Check No.1910 was never negotiated. The Statute of Limitations had expired on the Butlers' claim at that time.

"On November 9, 2002, the Respondent sent a letter to the attorney for Amica, Timothy E. Howie, Esquire, indicating that the Statute of Limitations had passed on the Butlers' claim before the error was brought to her attention and he could `close [his] file on this claim.' Thereafter, the Respondent agreed to sign and present to the court a joint Line of Dismissal With Prejudice in the Butler case. This line of dismissal was filed on January 9, 2003.

"The Respondent did not advise Mr. or Mrs. Butler of the error that occurred with the filing of their Complaint. The Respondent did not advise Mr. or Mrs. Butler that their case was dismissed with prejudice and that the Statute of Limitations now barred their claim. Furthermore, the Respondent did not consult with either Mr. or Mrs. Butler regarding the dismissal of their Complaint with prejudice nor did she receive their consent to dismiss their claim.

"The Respondent then decided that she would not disclose the dismissal of the claim to her clients, the Butlers. Rather she would attempt to make them whole by paying them what she thought would placate them and what she perceived to be fair to them, i.e., the sum of $10,000.00 out of her own personal funds. It was also at this time that the Respondent sought the legal and ethical advice of N. Frank Wiggins, Esquire (hereinafter `Mr. Wiggins').

"Mr. Wiggins, at the time, was a partner at the law firm of Venable, Baetjer, Howard and Civiletti. He is a 1972 graduate of the University of Michigan Law School. He taught at Northwestern University Law School for three years. The Respondent worked for Mr. Wiggins at his previous law firm, Cohn and Marks, for approximately four and one-half years. Over the years, the Respondent and Mr. Wiggins have maintained personal contact with one another, often consulting with each other on legal matters. In addition, Mr. Wiggins represented the Respondent in Attorney Grievance Commission v. Pennington, 355 Md. 61, 733 A.2d 1029 (1999). Mr. Wiggins is not admitted to practice law in the State of Maryland. He is only admitted to practice law in the District of Columbia.

"The Respondent advised Mr. Wiggins of the events that transpired and sought his counsel and advice on her plan to pay the Butlers from her own personal funds. Specifically, Respondent sought reassurance from Mr. Wiggins that her payment to her clients out of her personal funds and her nondisclosure of the facts would not in any way violate any laws or rules of ethical conduct in Maryland, or otherwise cause any problems for her or the Butlers. After researching the matter, Mr. Wiggins opined incorrectly to the Respondent that no disclosure was required.

"On February 6, 2003, the Respondent met with Mr. and Mrs. Butler. During this meeting, the Respondent presented the Butlers a document entitled `Statement of Settlement.' The Respondent did not disclose to the Butlers that the check they would receive would not come from the settlement of their case but, instead, directly from the Respondent's own funds. The `Statement of Settlement' presented to the Butlers was derived from a form that Respondent customarily utilized when she disbursed funds obtained through settlement of claims with third parties for the benefit of her clients. In fact, the Butlers were presented with a similar `Statement of Settlement' in September 29, 1999, relating to their settlement of the property damage claim with Amica.

"The `Statement of Settlement' presented to the Butlers on February 6, 2003, although substantially similar to the September 29, 1999 statement, contained two modifications. The lines designating `Insurance Company' and the `Personal Injury Claim' were purposefully omitted by the

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