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Attorney Grievance Commission v. Tinsky, Misc. No. 7 & 20, September Term, 2002. [Violations of the Following Maryland Rules of Professional Conduct: 1.1 (Co mpetence), 1.3 (Diligence), 1.4(a) and (b) (Communication), 1.16(d) (Declining or Terminating Representation), and 8.4(d) (Misco nduct); held: Respondent violated the named Maryland Rules of Professional Conduct by accepting fees and expenses for several matters but failing to take any eff ective action on behalf of his clients and by closing his law practice without notifying his clien ts. For th ese vio lations, R espon dent sh all be dis barred .]

IN THE COURT OF APPEALS OF MARYLAND

Misc. Docket AG No. 7 & 20 September Term, 2002

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. CRAIG ROBERT TINSKY

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

Opinion by Battaglia, J.

Filed: November 10, 2003

The Respondent, Craig Robert Tinsky, was admitted to the Bar of this Court on December 15, 1994. He presently does not maintain a law office in Maryland. On March 19, 2002 and April 17, 2002, the Attorney Grievance Commission, acting through Bar Counsel, and pursuant to Maryland Rule 16-712(b)(5), 1 filed two p etitions with this Court for disciplinary action against Tinsky, Respondent, alleging violations of the Maryland Rules of Professional Conduct (hereinafter "MRPC"). In its petition filed on March 19, 2002, the Commission charged Respondent w ith violations of MRPC 1.1 (Competence ),2 1.3 (Diligence), 3 1.4(a) and (b) (Communication)4 , 1.16(d) (Declining or

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Rule 16-712. Bar Counsel. (b) Powers and Duties . Subject to the supe rvision and approva l, if required, of the Commission, Bar Counsel has the powers and duties to: *** (5) file and prosecute petitions for disciplinary and remedial actions in the na me of the Co mmiss ion . . . . Rule 1.1. Competence. A lawyer shall provide competent representation to a client. Competent representation requires the legal kn owledg e, skill, thoroughness and preparation reasonably necessary for the representation. Rule 1.3. Diligence. A lawyer shall ac t with reaso nable diligence and promptn ess in representing a client. Rule 1.4. Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly com ply with reaso nable requests for information. (b) A lawyer sh all explain a m atter to the extent reaso nably (contin ued...) 2

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Terminating Representation), 5 and 8.4(d) (Misconduct) 6 in Tinsky's representation of Behrooz Irani in connection with his bankruptcy case. In its petition filed on April 17, 2002, the Com mission charge d Resp onden t with v iolation s of M RPC 1.1 (Co mpete nce), 1.3 (Diligence), 1.16(d) (Declining or Termin ating Rep resentation), a nd 8.4(d) (M isconduc t) in Tinsky's representation of Robert Alonzo Taylor in connection with two criminal matters. Pursuant to Rule 16-757,7 this Court referred the two petitions to Judge Richard H. Sothoron

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(...continued) necessary to permit the client to make informed decisions regarding the representation. Rule 1.16. Declining or Terminating Representation. (d) Upon termination of representation, a lawyer shall take steps to the extent reasonably practicable to protect a client's interests, such as giving reasonable notice to the client, allowing time for employment of other counsel, surrenderin g papers a nd prope rty to which the client is entitled and refunding any advance payment of fee tha t has not be e arned. Th e lawyer ma y retain papers relating to the client to the extent permitted by other law. Rule 8.4. M isconduct. It is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice. Rule 16-757. Judicial hearing. (a) Gener ally . The hearing of a disciplinary or remedial action is governed by the rules of evidence and procedure applicable to a court trial in a civil action tried in a circuit court. Unless extended by the Court of Appeals, the hearing shall be co mpleted with in 12 0 days after service on the respondent of the order designating a judge. Before the conclusion of the hearing, the judge may permit any complainant to testify, subject to cross-examination, regarding the effect of the alleged misconduct. A respondent attorney may offer, or the judge may inquire regarding, evidence otherwise admissible of any remedial action (contin ued...) 3

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of the Circuit Court for Prince George's County to conduct an evidentiary hearing and make finding s of fac t and co nclusio ns of la w. On July 16, 2002, Petitioner served Respondent with process on both petitions through the Client Protection Fund, after attempts to serve Tinsky personally were unsuccessful. On March 7, 2003, an Order of Default was entered as to both petitions and notice of that Order was sent to Respondent at his last known address. The order allow ed R espo ndent 30 days within which to move to vacate the order. No motion to vacate was filed. Judge Sothoron held a hearing on the Irani a nd Taylor m atters on A pril 25, 2003 but Respondent neither attended nor participated. Respondent did not appear for oral argument before this C ourt. I. Findings of Fact and Conclusions of Law In a memorandum opinion addressing both matters, dated May 1, 2003, the hearing judge entered the following Findings of Fact and Conclusions of Law: "The Petitioner, the Attorney Grievance Commission of Maryland, filed a Petition for Disciplinary or Remedial Action in the Court of Appeals of Maryland in Misc. Docket AG No. 7, September Term 2002, on March 19, 2002. On March 26, 2002, the C ourt of A ppeals assig ned the ca se to this Court for a hearing in accordance with Maryland Rule 16-757. After attem pts

(...continued) undertaken relevant to the allegations. Bar Counsel may respond to any evidence of remedial action. 4

to serve the Respondent personally were unsuccessful, Petitioner served Respondent with process through the Client Protection Fund on July 16, 2002. This Court entered an Order of Default on March 7, 2003, and the Clerk of the Circuit Court sent notice of that Order to Respondent's last known address. A hearing on this matter was held on April 25, 2003. Respondent did not appear at the hearing. "Petitioner alleges that Respondent violated Rules 1.1, 1.3, 1.4, 1.16(d) and 8.4(d) in his representatio n of Beh rooz Irani in c onnection with his bankruptcy case. Petitioner produced a t the hearing an affidavit of the

Comp lainant, Shernaz Irani, and the pertinent documents from the bankruptcy case. "The Court finds by clear and convincing evidence that Behrooz Irani retained Respondent in September 1997 and was paid a total of $9 25.00 for his fee and expenses. A lthough Mr. Irani cooperated with Respondent and

provided him all the information and documentation he requested, Respondent did not file his Chapter 7 petition fo r discharge until February 10, 2000. Respondent failed to attach to the petition the required schedules and statement of financial affairs. The Bankruptcy Court notified Respondent of the

deficiencies, but Respondent failed to amend the petition. The Bankruptcy Court dismissed Mr. Irani's bankruptcy petition on February 29, 2000.

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Respondent filed a Motion to Strike the dismissal order on March 14, 2000. The Bankruptcy Court subsequently denied the Motion to Strike on June 13, 2000. Responden t's Motion to Strike was not timely filed, contained no legal basis, and failed to include the additional financial information required by the Court. Throug hout the co urse of the representatio n, Respo ndent failed to return telephone calls from his client and he did not keep him informed of developm ents in the case. Respondent never refunded his fee, although the services rendered to Mr. Irani w ere of no v alue to him . Respon dent closed his office in Upp er Ma rlboro, M aryland. "The Court finds that by his conduct, Respondent violated Rules 1.1, 1.3, 1.4, 1.16(d) and 8.4(d) of the Maryland Rules of Pro fessional C onduct. Respondent acted incompetently in violation of Rule 1.1 of the Maryland Rules of Professional Conduct by failing to submit the required schedules and statement of financial affairs along with Mr. Irani's bankruptcy petition, by failing to provide these materials when requested by the Court, and by failing to file a timely and a ppropriate o pposition to the dismissal of M r. Irani's petition. "Respondent did not act with rea sonable diligence in his representation of Mr. Irani, in violation of Rule 1.3 of the Maryland Rules of Professional Condu ct, by delaying over two years after he was retained before filing the

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bankruptcy petition, then not filing additional materials requested by the Cou rt in a timely manner, and by failing to file the Motion to Strike the dismissal order within the time permitted. "Respondent failed to keep his client informed of the status of the case and did not respond to his inquires regarding the case in v iolation of Ru le 1.4 of the M aryland R ules of Profe ssional C onduc t. "Respondent violated R ule 1.16(d) o f the Ma ryland Rule s of Professional Conduct by not refunding his unearned fee and b y abandonin g his practice. "Responden t's lack of any effectiv e action on behalf of his client in connection with the b ankruptcy case, particularly in failing to s upply information requested by the Court and his untimely filing of the Motion to Strike, was conduct prejudicial to the administration of justice in violation of Rule 8.4(d ) of the M aryland Rule s of Profe ssional Co nduct. "Petitioner filed a Petition for Discip linary Action in the Court of Appeals on April 17, 2002 , in Misc. Docket A G No. 20, Se ptember Term 2002. That case was assigned to this Court on April 22, 2002. Respondent was served by service on the Client Protection Fund. He filed no answer to the Petition for Disciplinary Action. An Order of Default was entered on March 7, 2003, and the Clerk sent a notice to Resp onden t's last kn own a ddress . A

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hearing was held on March 25, 2003.8 Responden t did not appear. "Petitioner alleges that Respondent violated Rules 1.1, 1.3, 1.16(d) and 8.4(d) of the Maryland Rules of Professional Conduct in this matter. Petitioner introduced at the hearing an affidavit from the Honorable Steven I. Platt and a certified copy of the Circuit Court file for the case of State of Maryland v. Robert Alonzo Taylor, Case No. CA00-4636J. "The Court finds by clear and convincing evidence that Respondent was retained by Robert Alonzo Taylor to represent him in two criminal m atters pending in the Circuit Court for Prince George's County, Maryland. Respondent received a fee and entere d his appearance in those two cases. He failed to appear a t trials scheduled for February 5 and April 2, 2001. Without notice to the Court or his client, Respondent closed his law office in Upper Marlboro, Maryland. "Respondent's failure to appear at his client's criminal trial on two occasions was inco mpetent re presentation and show ed lack of diligence, in violation of Rules 1.1 and 1.3 of the Maryland R ules of Pro fessional C onduct. His failure to notify his client of his closing of his office, his taking a fee without appearing at trial, and his disappearance while his client's criminal cases were pending violated Rule 1.16 of the Maryland Rules of Professional

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The record indicates that the hearing in th e Taylor matte r occurred on April 25, 2003. 8

Condu ct, pertaining to termination of represe ntation. His failure to app ear in court and abandonment of his client, who was facing criminal charges in two cases, was conduct prejudicial to the administration of justice, in violation of Rule 1 .6 of the Marylan d Rule s of Pro fession al Con duct." II. Standard of Review This Court exercises "`original and com plete jurisdiction for attorney disciplinary proceedings in Maryland,' and conducts `an independent review of the record.'" Attorney Grievance Comm 'n v. Blum, 373 Md. 275, 293, 818 A.2d 219, 230 (2003) (quoting Attorney Grievance Comm'n v. McLa ughlin , 372 Md. 467, 492, 813 A.2d 1145, 1160 (2002)(citations omitted)). "In conducting that review, we accept the hearing judge's findings of fact as prima facie correct unless s hown to be `cle arly erron eous,' and we give due regard to the hearing judge's opportunity to assess the credibility of witnesses." Id. (citing Attorney Grievance Comm 'n v. Wallace, 368 M d. 277, 288, 793 A.2d 535, 542 (2002). "As to the hearing judg e's conclusions of law ," how ever , "`ou r con sideratio n is essen tially de novo .'" Id . (quoting Attorney G rievance C omm'n v. Dunietz , 368 Md. 419, 428, 795 A.2d 706, 710-11 (2002) (quoting Attorney Grievance Comm'n v. Thompson, 367 Md. 315, 322, 786 A.2d 763, 768 (2001) (quoting Attorney Grievance Comm'n v. Briscoe, 357 Md. 554, 562, 745 A.2d 1037, 1041 (2000)))). This is true even where default orders have been entere d by the hearing judge. Attorney Grievance Comm'n v. Harrington , 367 Md. 36, 49, 785 A.2d 1260, 1267-68 (200 1).

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III. Discussion Neither party has filed a ny exception s to the findin gs, and R esponde nt did not appear at the oral argument in this C ourt. On the record before us, we su stain Judge Sothoron 's findings and hold that his conclusions of law are supported by the facts. Bar Counse l has recom mended that Respo ndent be d isbarred fo r his violations of MRPC 1.1, 1.3, 1.4, 1.16(d) and 8.4(d). Specifically, Bar Counsel has identified

Responden t's "comple te and une xplained a bandon ment of h is law practic e and his fa ilure to return unea rned fees" as justification for his disba rment. In a case simila r to the present case, that of Attorney Grievance Comm'n v. Wallace, 368 M d. at 289-90 , 793 A.2d at 542-43 , in which w e disbarred Wallace, w e noted tha t: [i]t is well-settled th at the purpose of disciplinary proceedings is to protec t the p ublic rath er than to punish th e erring a ttorn ey. Attorney Grievance Comm'n of Maryland v. Myers , 333 Md. 440, 446-47, 635 A.2d 1315, 1318 (1994); Attorney Griev. Com m'n v. Goldsborough, 330 Md. 342, 364, 624 A.2d 503, 513 (1993); Attorney Griev. Comm'n v. Protokowicz, 329 Md. 252, 262-63, 619 A.2d 100, 105 (1993); Attorney Griev. Comm'n v. Myers , 302 M d. 571, 580 , 490 A.2d 231, 236 (1985); Attorney Griev. Comm'n v. Velasquez, 301 Md. 450, 459, 483 A.2d 354, 359 (1984); Attorn ey Grie v. Comm'n v. Montgom ery , 296 Md. 113, 119, 460 A.2d 59 7, 600 (19 83). The p ublic interest is served when th is Court imposes a sanction which demonstrates to members of the legal profession the type of condu ct that will not be tolera ted. Attorney Griev. Comm'n v. Kerpelman, 288 Md. 341, 382, 420 A.2d 940, 959 (1980 ), cert. denied, 450 U.S. 970, 101 S. Ct. 1492, 67 L. Ed. 2d 621 (1981). By imposing such a sanction, this Court fulfills its responsibility 'to insist upon the maintenance of the integ rity of the Bar and to prevent the transgre ssion of an in dividual law yer from bringing its image into disre pute .' Maryla nd St. Bar Ass'n v. Agnew, 271 Md. 10

543, 549, 318 A.2d 811, 814 (197 4). Theref ore, the pub lic interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules. See Protokowicz, 329 Md. at 262-63, 619 A.2d at 105; Attorney Griev. Com m'n v. Owrutsky, 322 Md. 334, 355, 587 A.2d 511, 521 (1991); Attorney Griev. Comm'n v. Alison, 317 Md. 523, 540-41, 565 A.2d 660, 668 (1989). Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case . Attorney Griev. Comm'n v. Babbitt , 300 Md. 637, 642, 479 A.2d 1372, 1375 (1984) (the facts and circumstances of a case will determine how severe the sanction should be); Montgomery , 296 Md. at 120, 460 A.2d at 600; Attorn ey Grie v. Com m'n v. Pollack, 289 Md. 603, 609, 425 A.2d 1352, 1355 (19 81). The attorney's prior grievance hi story, as well as fac ts in mitigation, constitutes part of those facts and circum stances . Maryland State Bar Ass'n v. Phoebus , 276 Md. 353, 362, 347 A .2d 556, 561 (197 5). Id. at 289-90, 793 A.2d at 542-43 (quoting Attorney Grievan ce Comm 'n v. Franz, 355 Md. 752, 760-61, 736 A.2d 339, 343 -44 (1999)). After exploring other cases involving client neglect and failure to return client funds, we directed that Wallace be disbarred in language equally applicable to the present case: The record in the case at bar does not indicate that respondent has received any previous reprimands or sanctions from this Court; nevertheless, the volume and severity of the complain ts against responde nt lead us to c onclude th at the appro priate sanction against respondent is disbarment. Respondent has engaged in a pattern of conduct that only the mo st severe sanction of disbarm ent will prov ide the prote ction to the p ublic that this procedure is supposed to provide. Respondent's lack of diligence, his lack of p reparation, h is failure to co mmun icate with his clients, his charging of unreasonable fees, his failure to account for and retu rn monies , his misrepre sentations, an d his failure to comply with Bar Counsel's requests all lead to the most seve re sanction o f disbarm ent. 11

Id . at 293, 793 A.2d at 545. In Attorney Grievance Comm'n v. Faber , 373 Md. 173, 817 A.2d 205 (2003 ), we also disbarred another attorney for violations of 1.1, 1.2, 1.3, 1.4 and 1.16, even without a finding of a violation of Ru le 8.4(d), in language relevant to the c ase at bar: This Court consistently has regarded neglect of client needs and failure to comm unicate with clients to be violations of the Rules of Professional Conduct warranting the imposition of some disciplinary sanctio n. See Attorney Grievance Comm'n v. Manning, 318 Md. 697, 703, 569 A.2d 1250, 1253 (1990) (citing Attorn ey Grie vance Com m'n v. Gallagher, 306 Md. 107, 115, 507 A.2d 625, 6 29 (1986)). We previously have found disbarment to be appropriate when a ttorneys repeate dly neglect client affairs . See Attorney Grievance Comm'n v. Wallace, 368 Md. 277, 290, 293, 793 A.2d 535, 543, 545 (200 2); Manning, 318 Md. at 705, 569 A.2d at 12 54; Attorn ey Grie vance Com m'n v. Montgomery , 318 Md. 154, 165-66, 567 A.2d 112, 117-18 (1989); Maryland State Bar Ass'n v. Phoebus, 276 Md. 353, 365-66, 347 A .2d 556, 562-63 (1 975). Id. at 181, 817 A.2d at 209. Tinsky betrayed the trust that his clients placed in him when they sought his assistance and the public tru st with wh ich he wa s endow ed whe n he wa s admitted to the Bar of this Court. He shall be disbarred. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSC RIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGM ENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMM ISSION AGAINST 12

CRAIG ROBERT TINSKY.

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