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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 59 September Term, 2003

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. FRANCIS MACDOUGALL

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ.

Opinion by Bell, C.J.

File: December 13, 2004

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counse l, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary or Remedial Action against Francis MacDougall, the respondent. The petition charged that the respondent violated Rules 1.3, Diligence,2 1.4, Communication,3 1.5, Fees,4 1.16, Declining or

Maryland Rule 16-751, as relevant, provides: "(a) Commencement of disciplinary or remedial action. (1) Upon approva l of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petitio n for D isciplina ry or Rem edial A ction in t he Co urt of A ppeals ." See Rule 16-743, which specifically provides that "[t]he Commission may (1) approve the filing of a Pe tition fo r Discip linary or R emed ial Actio n."

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Rule 1.3 re quires "[a] la wyer [to] act w ith reasonab le diligence a nd prom ptness in represe nting a c lient."
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Rule 1.4 provides: "(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information. "(b) A law yer shall explain a matter to the extent reaso nably necessa ry to permit th e client to make inform ed dec isions re gardin g the rep resenta tion."
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Rule 1.5 p rovides, as re levant: "(a) A law yer's fee shall be re asonable. T he factors to be consid ered in determining the reasonableness of a fee include the following: "(1) the time and labor required, the novelty and difficulty of the questions involved, and the skill requisite to perform the legal service prop erly; "(2) the likelihood, if apparent to the client, that the acceptance of the particular employment w ill preclude other employmen t by the lawyer; "(3) the fee customarily charged in the locality for similar legal services; "(4) the amount involved and the results obtained; "(5) the time limitations imposed by the client or by the circumstances; "(6) the natu re and leng th of the pro fessional rela tionship w ith the client;

Terminating Representation,5 3.4, Fairness to Oppo sing Party and Counse l,6 8.1, Bar Admission and Disciplinary Matters,7 and 8.4, M isconduc t,8 of the M aryland Rules of "(7) the experience, reputation, and ability of the lawyer or lawyers performing the services; and "(8) w hether th e fee is f ixed or conting ent."
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Rule 1.16 provides, as relevant: * * * * "(d) Upon termination of representation, a lawyer shall take steps to the extent reasonab ly practicable to protect a client's interests, such as giving reasonab le notice to the client, allowing time for employmen t of other co unsel, surrendering papers and property to which the client is entitled and refunding any advanc e payment o f fee that ha s not been earned. T he lawyer m ay retain papers relating to the clie nt to the e xtent pe rmitted b y other law ."

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Pursua nt to Ru le 3.4, "A law yer shall not: * * * * "(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists."

Rule 8.1 p rovides, as re levant: "An ap plicant for ad mission or re instatemen t to the bar or a lawyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: * * * * "(b) fail to disc lose a fact n ecessary to corr ect a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for info rmation from an ad miss ions or disciplinar y auth ority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6."
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Rule 8.4, as relevant, provides: "It is professio nal miscon duct for a la wyer to: * * * * "(c) engage in conduct involving dishonesty, fraud, deceit or 2

Professional Conduct, as adopted by Maryland Rule 16-812.9 We referred the case, pursu ant to Rule s 16-752 (a),10 to the Honorable Thomas J. Bollinger, Sr., of the Circ uit C ourt for B altim ore C ounty, for hearing pursuant to Rule 16-757 (c).11 Following a hearing, at which the respondent appeared and participated, the hearing court found, on " the evidence presented at that time, as well as the admissions made by the Respondent in his response to the Petition for Disciplinary Action," facts by the clear and convincing standard and drew conclusions of law, as follows.

misrepresentation; "(d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice ." * * * * The petition er also charg ed that the res ponden t "assist[ed] a p erson wh o is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law ," in viola tion of R ule 5.5 ( b), but w ithdrew it during the evid entiary he aring.
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Rule 16-752 (a) provides: "(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing."
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Maryland Rule 16-757 (c) provides: "(c) Findin gs and co nclusions. T he judge s hall prepare and file or d ictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party." 3

The respondent, a sole practitioner, was, pursuant to wills he drafted for T heodore and Naomi Egorin, one of three co-personal representatives of their estates, the other two being the surviving child and heir of the decedents, Samuel Mervis Egorin, and Donn Weinberg, Esquire. He was also attorney for each estate, having been retained as such by the personal representatives. Each will, after making specific bequests of personal property to Samuel Egorin and, in the case of Mrs. Egorin, a small cash bequest to her housekeep er, bequeathed the residue of the estate to a testamentary trust. The co-personal representatives of the estates were appointed co-trustees of those tru sts. The wills, the estates for which had an estimated net value of $ 150, 000, were admitted to probate in 1999. The respondent's services for the first two years or so after the estates were opened were generally acceptable to the co-pers onal representatives. They apparently communicated with responde nt on a fairly freq uent basis, "to review the estate matters , authorize p ayments of estate debts, re view the e state security portfolio and co-sign those estate ch ecks necessary for the payment of debts." Although, during that period, "[i]t was not uncommon ... for [the responde nt] not to answe r his p hone," h e gen erall y returned calls with in tw enty-four (24) hours and he was prompt in cooperating to arrange meetings of the co-personal representatives, usually held at co-personal representative Weinberg's office. The respondent was paid, with the approval of the Orphans' Court, counsel fees of $ 10,000, $7500 from the Naomi Egorin estate and $2500 from the Theodore Egorin estate.

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These fees were in lieu of commissions payable to him as a co-personal representative.12 "The parties agree that the Respon dent com ported him self prope rly insofar as his taking of a fee fo r his serv ices wa s done with th e appro val of th e Orph ans' C ourt." Beginning in the secon d half of 2 002, the resp ondent ce ased return ing calls from his co-personal representatives in a timely manner and his relationship with them "changed signific antly." Indeed, as his response to the Petition fo r Disciplinary A ction and h is testimony at the hearing admit, "[h]e failed to return calls from either or both of the copersonal representatives and failed to answe r questions re lating to his serv ices to the esta te and his actions as re quired as a c o-persona l representativ e." Samu el Egorin te stified consiste ntly, that the respondent had not communicated with him directly since July 2002, when he delivered to him an insurance policy on which a claim had to be made. While the respondent prepared formal accountings with respect to the estates and filed them with the Register, "he failed to give any informal accountin g as to the as sets of the es tates subject to distribu tion." Moreover, the efforts of the co-personal representatives to meet with the Another example of the non-communication between the

respondent were frustrated.

respondent and his co-personal representatives w as his failure to explain h is decision n ot to distribute trust funds to Samuel Egorin to defray expenses incurred by his youngest daughter for hospitalization and treatment. Although aware of the request for distribution for that

The respondent filed, in February 2001, Petitions for Counsel Fee and Counsel Fee in Lieu of C ommissions in both estates. These petitions were a pproved by orders issued b y the Orp hans' C ourt. 5

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purpose, the respon dent did no t inform the beneficiary or the other co -personal representative of his decision to refuse the distribution in favor of retaining the money in anticipation of the need to pay future educational expenses, much less explain it to them. The resp ondent w as inform ed on tw o occasio ns by Bar Counsel, by letters dated December 10, 2002 and January 7, 2003, respectively, that a complaint had been filed against him and, on each occasion, Bar Counsel asked that the respondent respond. In the January letter, which enclosed the December letter, the respondent was adv ised that failure to respond may be a separate and d istinct violation of the Rules of P rofessional Conduct for violatio n of R ule 8.1. Although the resp ondent responde d to Bar Coun sel's letters, he did not timely respond to either letter, w ithin the fifteen days allowed in the December letter or within the ten days prescribed by the January letter. In his response, by letter dated

February 13, 2003, the respondent acknowledged receipt of Bar Counsel's correspondence and, without offering any explanation or excuse, conceded his unresponsiveness. With

regard to the allegation that insurance proceeds owed to the Estate of Theodore Egorin had been abandoned to the State, the respondent, while admitting that the application for proceeds had not be en filed afte r death, ma intained that the proceeds had not been abandoned, claim for them having been made to Prudential Financial, where the funds had been maintained in the Aba ndoned Property Office of Prudential Insurance Company, and that the proceeds were expected within two to three weeks. The respondent met with Bar Counsel's investig ator. Although admitting to heart problems throughout his life, after

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reviewing his medical history, the respondent acknowledged that his 1996 heart operation was successful and that he sees his cardiologist only once every three years and has no other health prob lems . The resp ondent a lso d oes n ot su ffer from alco hol, p sychological or physiolo gical pro blems. The respondent informed the petitioner's investigator that he had been requ ested, in writing, by both regular and certified m ail, through his co-personal repres entatives, to turn over all documents relating to the estates to a substitute attorney and that he had refused to do so. The res ponden t indicated tha t he wou ld resign as c ounsel on ly after the estates were closed. He maintained that he had a right to so proceed, because the decision of the copersonal representatives with regard to the firing of counsel must be unanimous and that, as a personal representative, he was not prepared to vote with the other two. Although it was an option, as the respondent pointed ou t, no attempt h ad been m ade to that point to obtain the respondent's removal through court action. At the time of the hearing, the respondent was not a trustee under the trusts set up under the Egorin wills and the Fourth and Final Accountings in the Estates of N aomi Eg orin and Theodore Egorin had been filed. The hearing court concluded that the respon dent violated four of the seven rule violations charged: Rule 1.3, Rule 1.4 (b), 13 Rule 8.1 (b) and 8.4 (d ). The hearing court

The petitioner charged the respondent with a violation of Rule 1.4 (a), as well as Rule 1.4 (b). The he aring court made n o finding as to the form er. 7

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characterized the violations it found as "technical," noting that it "finds that the Respondent has not exhibited any dishonest conduct or any interference with the administration of justice." On the other hand, the alleged violation of Rule 3.4, it found, had been abandoned during the disciplinary proceedings and the alleged violations of Rules 1.5 and 1.16 had not been p roven b y clear and convin cing ev idence . As to Rule 1.5, the hearing court explained: "The amount of the fee that was requested and received by the Respondent was approved by the Orphans' C ourt of Baltimore County after proper application to that court. This court finds that any inappropriateness of that fee should rest with the O rpha ns' c ourt of B altim ore C ounty. The Court further finds that the fee approved and received is less than the maximum statutory amount that could have been received by the Respondent had he completed the finalization of the e state[s]." The chancellor's reasoning as to the asserted violation of Rule 1.16 is related: "any fee to be retained w as under th e supervision and jurisdiction of the Orphans' C ourt of Baltimore Cou nty. In addition, the court finds that the Respondent complied with the Order of the

Orph ans' C ourt an d surren dered th e files in this mat ter whe n so ord ered." As indicate d, the resp onden t does n ot dispu te that he violated Rules 8 .1 (b) an d 8.4 (d), and, in fact, admits that he did. A s to Rule 1.3, the hearing co urt concluded that "there was a techn ical viola tion," the respondent having failed diligently to pursue the legal matters with w hich he was en trusted. Rule 1.4 was violated, the hearing court determined, by the respondent's "failure to adequately communicate to his co-trustees regarding the represe ntation o f the est ate."

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The petitioner excepts to the hearing court's failure to find violations of Rules 1.4 (a), 1.5 (a) and 1.16 (d). It maintains, as to the Rule 1.4 (a) charge, that the same evidence that justified the finding of a subsection (b) violation also supported violation of subsection (a). We agree. The hearing court found not only that the respondent had failed to return calls from his co-personal representatives and answer questions relating to his services to the estates, but that the res ponden t admitted th ose failures. The petitioner's exception to the failure to find a violation of Rule 1.4 (a) is sustained. We reach a different conclusion with respect to the Rule 1.5 (a) and 1.16 (d) findings. Maryland Cod e (1974, 2001 Replacement Volume)

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