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Failure to Maintain Adequate Records, Coupled with Otherwise Credible Testimony from Complainant, Results in Attorney Disbarment

Attorney Grievance Commission of Maryland v. London
Misc. Docket AG No. 12 (Court of Appeals of Maryland, July 10, 2012)
by Colleen K. O’Brien, Associate
Semmes, Bowen & Semmes (www.semmes.com)

The Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Attorney for violating several Maryland rules and statutes in his capacity as representative of Client. Attorney represented Client over a period of several years on several real estate transactions.

The Circuit Court for Baltimore City hearing judge found that Attorney violated the following Maryland Lawyers’ Rules of Professional Conduct (MLRPC): (1) Rule 1.1 (Competence); Rule 1.3 (Diligence); Rule 1.4 (Communication); and, Rule 8.4(c) (Misconduct).

Attorney filed exceptions to the hearing judge’s findings with the Court of Appeals of Maryland, but the appellate court upheld each one of the hearing judge’s findings regarding Attorney’s rule violations. One of the overarching objections that Attorney advanced was that the judge “failed to take into consideration the fact that [he] had moved his offices and all records were in storage,” making it difficult for him to respond to Client’s allegations. The Court dismissed this objection, finding that Attorney had “no one to blame but himself for his inability to produce the records” that he suggests “would have supported his side of the story,” and further noted that appropriate record keeping is “essential” part of a lawyer’s competent representation.

As far as Attorney’s lack of diligence in violation of Rule 1.3, the Court upheld the ruling of the hearing judge because Attorney failed to take action on various properties for anywhere between five (5) to twenty-one (21) months after being retained to work on them. While Attorney contended that his conduct did not display neglect or lack of diligence because he “continued to monitor the various undertakings requested by the client,” the Court stated that monitoring a matter without diligent action was still a violation.

Regarding Attorney’s misrepresentation to his client in violation of Rule 8.4(c), the issue was a deed for 813 N. Carey Street that Attorney allegedly prepared, but never recorded for Client. Attorney claimed that he gave the deed to Client to record, but there was no copy of a deed in any of the files. Further, Client testified that Attorney told him the deed “was filed” and that he never received any deeds from Attorney. To the Court, whether Attorney prepared a deed and didn’t file it or never prepared it at all, his “misrepresentation of [the] work he had performed” clearly constituted a violation of Rule 8.4(c).

Finally, the Court also upheld the hearing judge’s finding of a violation of Rule 1.4 (communication). The hearing judge concluded that Attorney’s general lack of communication with Client, combined with his misrepresentation regarding the 813 N. Carey Street deed, constituted a violation of the Rule. Attorney argued that he did not violate Rule 1.4 because Client was often unavailable. The Court stated that Attorney’s misrepresentation alone constitutes a violation of Rule 1.4, and that difficulty in reaching a client did not excuse his failure to keep the client reasonably informed.

As for Rule 1.1 (competence), the Court pointed to Attorney’s failure to keep adequate and well-documented client files. The Court noted that sound record-keeping is an essential part of competence, and that although Attorney may have kept perfectly good records, because he moved them to storage in such a way that prevented access to them, they were of no use. Attorney’s failure to maintain accessible records constituted a violation of Rule 1.1; and therefore, the Court overruled Attorney’s exceptions.

Bar Counsel recommended that in light of these Rule violations, Attorney should be disbarred. Attorney argued that a mentoring program would be more appropriate. On the grounds that Attorney was previously disbarred in 1977, and because Attorney misrepresented the status of Client’s real estate transactions to Client which was especially fatal, the Court of Appeals disbarred Attorney from the practice of law in Maryland.