Attorney Grievance v. Culver

849 A.2d 423

381 Md. 241

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Allan J. CULVER, Jr.

Misc. AG No. 35, Sept. Term, 2002.

Court of Appeals of Maryland.

May 13, 2004.

Melvin Hirschman, Bar Counsel and James P. Botluk, Asst. Bar Counsel, Atty. Grievance Commission of Maryland, for Petitioner.

Byron L. Warnken, Baltimore, for Respondent.

Argued Before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. RAKER, Judge.

The Attorney Grievance Commission, petitioner, acting through Bar Counsel, filed a Petition for Disciplinary Action against Allan J. Culver, Jr., respondent, alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Maryland Rules of Professional Conduct 1.2 (Scope of representation),¹ 1.3 (Diligence),² 1.5 (Fees),³ 1.7 (Conflict of interest: General rule),⁴ 1.15 (Safekeeping property),⁵ 3.1 (Meritorious claims and contentions),⁶ 3.2 (Expediting litigation),⁷ 3.3 (Candor toward the tribunal),⁸ 3.4 (Fairness to opposing party and counsel),⁹ and 8.4 (Misconduct).¹⁰ Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge John O. Hennegan of the Circuit Court for Baltimore County to make findings of fact and proposed conclusions of law. Judge Hennegan held an evidentiary hearing and concluded that respondent had violated Rules 1.2(d), 1.3, 1.5(a) and (b), 1.7(b), 1.15(a), 3.1, 3.2, 3.4(d), and 8.4(b), (c), and (d).

I.

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

"On July 9, 2002, the Attorney Grievance Commission of Maryland filed a Petition for Disciplinary Action, alleging that the Respondent, Allan J. Culver, Jr., engaged in misconduct in violation of the Maryland Rules of Professional Conduct in connection with his representation of Ms. [the client] in her divorce case and in related matters. The Court of Appeals assigned this matter to this Court to conduct a trial and to make findings of fact and conclusions of law. The trial was held May 14 through 16, 2003.

"The Court heard testimony from Ms. [the client]; her friend, Susan Butzner; and Matt R. Ballenger, Esquire, the attorney who represented Ms. [the client] in her subsequent lawsuit against Mr. Culver. The parties also introduced a number of exhibits, as well as a transcript of the testimony of Allan M. Grochal, Esquire, before the Inquiry Panel in this matter.

"Bar Counsel, on behalf of the Attorney Grievance Commission, filed a Petition for Disciplinary Action alleging that Respondent violated Rules 1.2, 1.3, 1.5, 1.7(b), 1.15, 3.1, 3.2, 3.3, 3.4 and 8.4(b), (c) & (d) of the Maryland Rules of Professional Conduct. The allegations concern or pertain to three matters. The first allegation is that Respondent incompetently represented Ms. [the client], did not act diligently, charged unreasonable fees, and engaged in other misconduct in the course of her divorce case.

"The second allegation is that during his representation of Ms. [the client], Respondent coerced and forced Ms. [the client] to have sexual contact with him. The third allegation involves Respondent's actions while Ms. [the client]'s suit was pending against him: he allegedly used improper means to avoid being deposed, avoid trial, and avoid paying the funds he agreed to settle the case.

"[The client] testified that she retained Mr. Culver1 in March 1993 to represent her in connection with her divorce case after seeing his advertisement in a telephone directory. Although the advertisement promised a free initial consultation, Respondent charged her fifty dollars for their first meeting. Ms. [the client] explained that she was very distraught about her divorce because her husband had vowed to do whatever it would take to get custody of the parties' two children. Mr. Culver's retainer agreement failed to advise her of his fee, but billed her on roughly a monthly basis. Pet'r Ex. No. 24. Those bills show that Respondent initially charged her $125.00 per hour, then later raised his rate to $150.00. Pet'r Ex. No.'s 25, 26, 27.2 Ms. [the client] testified that Mr. Culver never informed her that he was increasing his billing rate. Many of the bills submitted to Ms. [the client] by Respondent do not reflect the hours involved for the particular task.

"During the course of the representation, Mr. Culver failed to timely file answers to interrogatories on behalf of Ms. [the client]. Pet'r Ex. No. 2—

1 Mr. Culver was admitted to the Bar on June 21, 1978.

2 Pet'r Ex. No. 27 December 15, 1993, indicates a charge of $250.00 per hour: Court preparation re: exceptions.

Motion for Sanctions. Ms. [the client] testified that she gave Mr. Culver all of the information he requested in order to respond to the interrogatories within a few days of Respondent asking for the information. The circuit court entered an order granting sanctions against Ms. [the client], precluding her testimony and dismissing her counterclaim. Pet'r Ex. No. 2—Order dated August 12, 1993. Respondent was successful in having the sanctions removed. He billed Ms. [the client] for those services, even though Respondent was personally at fault for the failure to answer interrogatories. Pet'r Ex. No. 26 August 18, 1993; Aug. 20, 1993; August 23, 1993; Aug. 31, 1993; Sept. 3, 1993; Oct. 18, 1993; Oct. 28, 1993.

"During the course of the representation, Ms. [the client] experienced financial difficulties, in part due to the attorney fees in excess of $23,000 she paid to Respondent. Ms. [the client] testified that Mr. Culver advised her to obtain more credit cards and take cash advances on those cards to pay his fees. Ms. [the client] expressed concern about incurring that debt, but Mr. Culver explained that she would not have to repay that money because he would represent her to have the debts discharged in bankruptcy.

"Ms. [the client] testified that she attended a master's hearing in her divorce case on September 9, 1993. Mr. Culver represented her at that hearing. Susan Butzner was also present and testified at the master's hearing. That evening, Ms. [the client] received a telephone call from Mr. Culver. Mr. Culver insisted that he met with her that evening so that Ms. [the client] could sign papers that, he claimed, had to be presented to the court that following morning. Ms. [the client] agreed to meet Respondent at a restaurant, `Bahama Mama's,' which was near Ms. [the client]'s home. Ms. [the client] arranged to have Susan Butzner accompany her to the restaurant. Mr. Culver arrived late. He was accompanied by a few friends who came with him. Ms. [the client] repeatedly asked to sign the papers, but Mr. Culver never produced them. Eventually, Mr. Culver left to buy gasoline and Ms. [the client] had Ms. Butzner drive her home.

"Ms. [the client] testified that Mr. Culver, shortly thereafter, unexpectedly arrived at her house. He said that he wanted to see the condition of the house because [the client's husband] had raised allegations that Ms. [the client] was not a good housekeeper. Ms. [the client]'s two sons were asleep upstairs. At Respondent's request, Ms. [the client] showed him the children's playroom in the basement. There, Respondent forced her to the ground, pulled up her blouse and bra, pulled down her pants and proceeded to force her to have sexual intercourse with him. Ms. [the client] repeatedly objected. Mr. Culver placed himself on top of her and covered her mouth with his hands, demanding that she be quiet. He left immediately following the incident. Ms. [the client] identified a business card which she said Respondent left at her house that night.

"Ms. [the client] testified on two later occasions Mr. Culver convinced her to perform oral sex on him. She asserted that the occasion in his office was consensual. Ms. [the client] testified that she did not report these instances to the police or file criminal charges against Respondent. She continued to allow the Respondent to represent her. Ms. [the client] was concerned that she would lose custody of her children if revealed. She was familiar with how to file a criminal complaint. Ms. [the client] further testified that she had not filed a complaint with the Attorney Grievance Commission against Respondent, but had done so against her husband's attorney. Additionally, she was familiar with the ex parte domestic violence process.

"Ms. [the client] testified that she previously denied committing adultery under oath; she did, in fact, have sexual relations with Mr. McCormick and Respondent while married. Ms. [the client] claimed that she was unaware that they were acts of adultery while she was separated from her husband. She testified she was faithful to her husband while they lived together. Moreover, Ms. [the client] testified that, when asked about any such relationships, she took the Fifth Amendment on advice of counsel.

"The [client and husband]'s divorce case was tried in 1994. Ms. [the client] wanted to appeal that decision. Mr. Culver advised her that he would handle the appeal for a fee of $5,000.00, plus the advance payment of $1,500.00 for costs. Ms. [the client] paid the appeal fee and costs to Mr. Culver by two checks dated August 23 and September 19, 1994.

"After Ms. [the client] paid Mr. Culver to represent her in her appeal, Mr. Culver filed the appeal, then withdrew from representing her, contending Ms. [the client] owed additional fees. Mr. Culver did not return the fee paid for the appeal and did not file an appeal brief on her behalf. The Court of Special [sic] Appeals dismissed the appeal after appellant failed to file a brief.

"Susan Butzner testified that she accompanied Ms. [the client] to the master's hearing on September 9, 1993, and to the meeting with Mr. Culver that same evening. She testified that Mr. Culver was acting very unprofessional and possessive of Ms. [the client] in front of his friends and that he was getting very close to her. It appeared to Ms. Butzner that Mr. Culver had been drinking

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