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Attorney Grievance Comm ission of Maryland v. Charles E. McClain, Sr. , AG No. 23, September Term, 2007 HEADNOTE: Disbarment is the appropriate sanction for an attorney who knowingly made false statements to the Circuit Court, and relied on those false and mislea ding statem ents in a brief submitted to the Court of Special Appeals.

In the Cir cuit C ourt for P rince Ge orge 's Co unty Case No.: CAE07-20768 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 23 September Term, 2007 ____________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. CHARLES E. MCCLAIN, SR. _______________________________________ Bell, C.J. Harrell Battaglia Greene Murphy Eldridge, Jo hn C. (Re tired, Specially Assigned) Raker, Irm a S. (Retired , Specially Assigned) JJ. ___________________________________ Opinion by Greene, J. __________________________________ Filed: September 8, 2008

The Attorney Grievance Commission of Maryland, acting through Bar Counsel and pursuant to Maryland Rule 1 6-751(a), 1 filed a Petition For Disciplinary or Remedial Action against Responden t Charles E. McC lain, Sr. on August 10, 2007. The Petition alleged that Respon dent, who w as admitted to the Bar of this Court on September 30, 1993, violated Maryland Rules of Professional Conduct ("MRPC ") 1.1 (Competen ce),2 1.7(b) (Conflict of

1

Maryland R ule 16-75 1(a) provid es in pertinen t part:

(a) Commencement of disciplinary or remedial action. (1) Upon approval of [the Attorney Grievance] Commission. U pon approval or direction of the [Attorney Grievance] Commission, Bar Cou nsel shall file a Petition for D iscip linar y or Reme dial Action in the Court of Appeals.
2

MRPC 1 .1 provides:

A lawyer shall pro vide com petent repre sentation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.

Interest),3 3.1 (Meritorious Claim s and Contentions), 4 3.2 (Expediting Litigation), 5 3.3(a) (Candor Toward the T ribunal), 6 4.4(a) (Respect for Righ ts of Third Persons), 7 8.2(a) (Judicial
3

MRPC 1 .7(b) provides:

(b) Notwithstanding the existence of a conflict of interest under paragraph (a), a lawyer may represent a c lient if: (1) the lawyer reasonably believes that the lawyer will be able to provide competent and diligent repre sentation to e ach affec ted client; (2) the repres entation is no t prohibited b y law; (3) the representation does not involve the assertion of a claim by one client against another client represented by the lawyer in the same litiga tion or other p roceeding before a trib unal; and (4) each affected client gives informed consent, confirmed in writing.
4

MRPC 3 .1 provides:

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defen d the proce eding as to require that every elem ent o f the mov ing p arty's case be established.
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MRPC 3 .2 provides:

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
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MRPC 3 .3(a) provides:

(a) A law yer shall not kno wingly: (1) make a f alse stateme nt of fact o r law to a tribu nal or fail to correct a false statement of material fac t or law prev iously made to the tribunal b y the lawyer; (continued...) -2-

and Legal Officials), 8 and 8.4(c) & (d) (Misco nduct) 9 in his representation of Gustav Hamilton. Pursuant to Maryland Rules 16-752(a)10 and 16-757(c), 11 we referred the matter (...continued) (2) fail to disclose a material fa ct to a tribunal when disclosu re is necessary to avoid assisting a criminal or fraudulen t act by the client; (3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or (4) offer evidence that the lawyer knows to be false. If a lawyer has offered materia l evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measu res.
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MRPC 4 .4(a) provides:

In representing a client, a lawyer shall not use means that have no substantial purpose other than to em barrass, d elay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person.
8

MRPC 8 .2(a) provides:

A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the qualifications or integrity of a judge, adjudicatory officer or public legal officer, or of a candidate for election or appoin tment to judicial or legal office.
9

MRPC 8.4(c) & (d) provide:

It is professional misconduct for a lawyer to: (c) engage in conduc t involving d ishonesty, fraud , deceit or mis representatio n; (d) engage in conduct that is prejudicial to the administration of justice;
10

Maryland Rule 16-752(a) states:

(a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of (continued...) -3-

to the Ho norabl e Cath y H. Serrette of the C ircuit Court f or Prince G eorge's C ounty to conduct an evidentiary hearing and to su bmit to this Court proposed findings of fact and conclu sions o f law. On March 10, 2008, Judge Serrette issued findings of fact and conclusions of law, in which she found that Respondent violated MRPC 1.1, 3.1, 3.2, 3.3(a), 4.4, 8.2(a) and 8.4(c) and (d), but not MRPC 1.7(b). Judge Serrette's findings of fact and conclusions of law read in pertinent p art: Background On July 13, 2003, Barbara Johnson, through her attorney, Todd Kelting, Esquire, filed a partition action against Gustav Hamilton in the C ircuit Court for Prince Geo rge's Co unty s eeki ng th e sale of j ointly owned real p rope rty. The court entered an Order of Default on November 18, 2003 and subseque ntly entered judgment against M r. Hamilton. On May 21, 2004, the court ordered that the real property be sold, that the first $25,580.62 of proceeds be distributed to Ms. Johnson, and that any remainin g proceeds be divided equally between the parties. In an Order dated June 7, 2004, the court appointed Ade Awojobi as Trustee to sell the prope rty pursuant to Maryland Rule 14-303. M r. Hamilton 's prior coun sel filed an u nsuccessf ul Motion to Vaca te.

(...continued) Appea ls may enter an order designating a judge of a ny 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 R ule 16-75 7(c) states in p ertinent part:

(c) Findings and conclusions. The judge shall prepare and file or dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. -4-

* * * Findings of Fact The facts unde rlying the alleged violations are , for the mo st part, undisputed. Respon dent adm itted all of the f acts set forth in Petitioner's Request for Adm ission of Fa cts and Genuineness o f Docume nts, and the Court of Special Appea ls issued an unreported d ecision following R espondent's appeal in the underlying case. Respondent was admitted to the Bar of Maryland on September 30, 1993 and m aintains a law o ffice in Prince Georg e's Co unty. Respondent was also admitted to the Bar of the District of Columbia. Additionally, he has been a licensed real estate broker and developer in Maryland since 1968, and the broker for his own company, Geoplex Realty, since 1999. On September 13, 2004, Respondent entered his appearance as Mr. Hamilton's counsel. Respondent thereafter entered into an agreement with his client to act as the broker for the purchase of the real property that was the subject of the partition action in which Respondent was counsel for Mr. Hamilton. The agreement provided that Respondent, through Geoplex Rea lty, would receive half of the commission resulting from the sale. The commission was to be paid in lieu of attorney's fees. Upon entering the case, Respondent filed a Motion to Set Aside and/or Vacate Default Judgment knowing that a previo us Motio n to Vaca te Defau lt Judgment had been denied. Opposing counsel, Todd Kelting, notified Respon dent, via letter, that he did not deem the Motion to Set Aside and/or Vacate Default Judgment to be legally justified. On September 20, 2004, Ms. Johnson filed her first Request for Sanctions pursuant to Maryland Rule 1-341. On September 24, 2004, the Trustee filed a Motion to Compel Sale of the Prop erty. These matters came before the trial court on Oct. 22, 2004. During the hearing, R esponde nt requested that his Motion to Set Asid e and/or V acate Default Judgme nt be cons idered a req uest for reco nsideration. He further asked that Judge Dawson recuse himself from the case if sanctions were to be imposed, insofar as Judge Dawson had sanctioned Respondent "in just the recent past." Judge Dawson denied the recusation request, the Motion to Set Aside Default Judgment, and the oral motion to consider the Motion to Set Aside as a motion for reconsideration. He deemed the Motion to Set Aside and/or Vacate Ju dgment to be withou t basis and found that Respondent had -5-

filed the motion as a tactic to stall the proceedings. Responde nt and Mr. Hamilton were jointly and severally sanctioned. On November 1, 2004, Respondent filed a Motion to Alter or Amend Judgment and aske d the court to compel th e Trustee to sell the prope rty in question to Mr. Hamilton. Respondent argued that the case law was unclear as to Mr. H amilton's righ ts as a joint tena nt, but proff ered that, "H amilton is entitled by right, as joint tenant, to settlement with Johnson if able to do so, prior to any third party purc hase." [12] On November 5, 2004, Respondent filed a Motion to Stay Proceedings Below in the Court of Special App eals. On November 8, 2004, Ms. Johnson filed a second Request for Sanctions Pursuant to Maryland Rule 1-341 asserting that R espo ndent's t actic s we re dilator y, meritless and designed to impede Ms. Johnson's statutory right to sell the prop erty. Ms. Johnson opposed the Motion to Alter and Amend Judgment and requested reasonab le attorneys ' fees. In response, Respondent filed a Request for Sanctions Pursuant to Maryland Rule 1-341, asserting that Mr. Hamilton could purchase the property at the appra ised value if given the o pportunity to refinance and that he sh ould not have to m atch a higher third party offer. In the meantime, Respondent continued to engage in negotiation s with the Trustee. He entered into a contract to close on the property by November 24, 2004. The Trustee granted two extensions, but ultimately cancelled the contract because Mr. Hamilton failed to obtain financing. Ms. Johnson filed an Emergency Motion for Appropriate and Expedited Relief asserting that Responden t's delay tactics had prevented the Trustee from closing with third party purchasers. On December 17, 2004, Respondent filed an Emergency Motion to Allow Respon dent Priority to Se ttle with Tru stee or to Stay Transfer Title to Third Party Pur chaser . The property had been appraised at $228,000.00, but the Trustee received offers as high as $2 59,000.00. Mr. Hamilton could not match the higher offers. On January 2, 2005, in response to charges that Respondent was preventing the sale of the property, Respondent filed a Motion for Trustee to Provide Appraisal. Respondent asserted that the delay in selling the p roperty was due to the Trustee's failure to post a bond and provide an appraisal per Maryland Rule 14-303. In a motion filed days earlier, Ms. Johnson had Respondent cited Dorsey v. Dorsey, 30 Md. 522 (1869) and Kelly v. Gilbert, 78 Md. 431 (1894) in support of his argument that a joint tenant should be given a prioritized opportunity to purchase the real property. The Court of Special Appeals ruled that the cases were not applicable. -612

requested that Mr. Hamilton be held in contempt for preventing an appraiser from a thir d-pa rty's p rosp ectiv e mo rtgagee f rom ente ring the p rope rty. On January 25, 2005, after the Trustee had canceled M r. Hamilton's contract, Respondent unilaterally scheduled a "sham" settlement on the property with a mortgage company. Respondent knew that the Trustee was out of the country on the date of "settlement" and that the Trustee had not approved the settlement. Respondent thereafter wrote to the Trustee and filed a Line with the court indicating that Mr. Hamilton had settled. Judge Dawson heard argument on all outstanding motions on March 17, 2005. The court determined that Respondent's motions had been pursued in bad faith and without substantial justification and suggested that Respondent had become "too close" to Mr. Hamilton's procee dings. Sanctions we re imposed against Respondent and Mr. Hamilton in the amount of $12,230.00 to cover Ms. Johnson's counsel fees. On March 25, 2007, Respondent sent a letter to Judge Missouri, Administrative Judge for the Circu it Court of Prince George's County, without notice to opposing counsel or the Trustee, asserting that Respondent was precluded from filing appropriate motions regarding the property out of fear of being san ctioned. He concluded: "Please lead me in the proper direction within the confines of your Court so that justice may be done considering the status of this case." On March 29, 2005, Respondent was notified that the Trustee had sold the property for $259,000.00 . On May 3, 200 5, the court ratified the sale. The Auditor's Report was entered on July 13, 2005. Respondent noted an appeal. On September 19, 2005, he filed a brief with the Court of Special Appeals in which he challenged the sale and the sanctions. Respondent's brief misrepresented remarks made by Judge Dawson during the March 17, 2005 hearing, claiming that Judge Dawson had said that the judge was too close to the matter, when to the contrary, Judge Dawson had told Respondent that Respondent might be too close to be objective. The Court of Special Appeals found that Respondent "misconstrued and twisted" Judge Dawso n's word s. It further held that the Tru stee acted in accordance with his statutory duties, and noted that Respondent's "legal arguments [were] not presented in the context of the facts of this case, nor [did] he make an effort to apply the law , or invoke p recedent to bolster his arg ument." The -7-

Court ruled that the Circuit Court had not erred in finding that Respondent violated Maryland Rule 1-341 and did not abuse its discretion in sanctioning Respon dent, noting that " the eviden ce and inf erences tha t can be reaso nably drawn from the filing of these motions demonstrate appellant's bad faith and lack of substantial justification." The Court declined to add ress Responden t's argument that Mr. Hamilton should not have had to pay more than fifty percent (50%) of the equ ity in the real property insofar as Respondent had relied upon inapplicab le law and had failed to present a lu cid and su bstantial argu ment. Respondent filed a M otion for Reconsideration on October 25, 2006 and a Petition for a Writ of C ertiorari on Decemb er 26, 2006. Both w ere denied. Conclusions of Law Maryland Rules of Professional Conduct 1.1

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