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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 59 September Term, 2005

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. KENNETH STANFORD WARD

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

Opinion by Bell, C.J.

File: December 18, 2006

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 Action against Kenne th S. Ward, the respondent. The petition charged that the respondent violated Rules 1.1, Competence,2 1.3, Diligence,3 1.4, Communication,4 1.5, Fees,5 1.16, Declining or

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Maryland Rule 16-751, as relevant, provides: "(a) Co mmen cemen t of disc iplinary or remed ial action . (1) Upon approval of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals."
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Rule 1.1 provides: "A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and prepar ation rea sonab ly necessa ry for the r eprese ntation."
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Pursuant to that Rule, "[a] lawyer shall act with reasonable diligence and promp tness in r eprese 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 serv ice p rope rly; "(2) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment 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;

Terminating Representation,6 and 8.4, M isconduc t,7 of the Maryland Rules of Professional Cond uct, as ad opted b y Marylan d Rule 16-81 2. We referred the case, pursuan t to Rules 16-752 (a), 8 to the Honorable Wanda Keye s

"(6) the natu re and leng th of the pro fessional rela tionship w ith the client; "(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, as relevant, provides: * * * * "(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, surrendering papers and property to which the client is entitled and refunding any advance payment of fee that has not been earned. The lawyer may retain papers relating to the client to the extent permitted by other law ."
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Rule 8.4, as relevant, provides: "It is professional misconduct for a lawyer to: "(a) violate o r attempt to v iolate the rules o f professio nal condu ct, knowingly assist or induce another to do so, or do so through the acts of another; "(b) com mit a crim inal a ct tha t refl ects afve rsely o n the lawyer's h onesty, trustworthiness or fitness as a lawyer in other respects; "(c) engage in conduct involving dishonesty, fraud deceit or misrepresentation; "(d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice ." * * * *
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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 2

Heard, of the Circuit Court for Baltimore City, for hearing pursuant to Rule 16-757 (c). 9 After a hearing, at which the respondent appeared and participated, Judge Heard found the following facts by clear and convincing evidence. The respondent was retained, on October 31, 2002, by the complainant, Soraya Thompson-Brashears, whom he agreed to represent, in connection with the estate of her great aunt, the decedent. The complainant had consulted other attorneys, but chose the respondent because "he represented that he was able to proceed without assistance in Maryland and the District of Columbia." In return for opening an estate, the value of which was $ 210,000.00, $ 200,000.00 representing the approximate value of real estate titled in the decedent's name, and filing an action against the decedent's neighbor for fraudulently pledging the dece dent's property as security for lines of credit, in the amount of $ 50,000.00 , he established for his own, and not her, benefit, the complainant agreed to pay, and did pay, the responden t a $3,000.00 retainer, which was to cover the first twenty (20) hours of work at the rate of $ 150.00 per hou r. The resp ondent inte nded, as he informed the comp lainant, to ope n the estate

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

first and then proceed im mediately against the deceden t's neighbor. The complainant initially tried contacting the respond ent for updated information concerning his progress with the legal matters in December and had trouble doing so. When she did reach him, he advised h er that he ha d filed in co urt and "w as waiting to get a date." On December 26, 2002, the respondent received a letter from the Register of Wills of Anne Arundel County informing him of that Office's receipt of the decedent's Last Will and Testament and a petition to open an estate in her name under a Will of No Estate and asking for additional information, i.e. a Waiver of Bond, a Death Certificate, clarification of the unsecured debts sc hedule and a c omple te list of in terested person s. The respondent did not respond to the letter or tak e any action w ith regard to it or the estate. Nor did he inform his client, who had hear d nothing of the m atter s dur ing J anuary an d Fe brua ry, 2003, except from the mortgage lender, who was inquiring about the status of the estate. The mortgage lender filed, in the Circuit Court of Anne Arundel County, a Petition for Judicial Probate on March 31, 200 3, to pro tect its inte rest. The responden t filed a civil actio n in the Su perior Co urt of the D istrict of Colu mbia against the decedent's neighbor. The complaint, which was signed by the respondent and Will Purcell, a law yer admitted to p ractice in the District of Columb ia, but not by the c lient, alleged fraud and conversion. The complainant also was unaware that Purcell had been

"directe d" to file the actio n on he r behalf . Because he was not admitted to practice in the District of Columbia, prior to filing the

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complain t, the respondent moved, through Mr. Purcell, to appear Pro Hac Vice in the Superior Court. In tha t motion, he represented that he wa s in good s tanding in , and that

"there [were] no disciplinary complaints pending against [him] for a violation of the rules" of, the Courts, the Suprem e Court of New Je rsey and the C ourt of A ppeals of M aryland, to which he wa s admitt ed to pr actice. T he mo tion wa s filed A pril 4, 20 03. On February 21,

2003, Bar Co unsel had notified the resp ondent of a disciplinary complaint against him then pendin g in M aryland. The District of C olumbia a ction was dismissed w ithout preju dice on two occasions, each time for failure to effect service on the defendant, as required by D.C. Rule 4 (m). The first occasion was on June 18, 2003. Shortly after that dismissal, the complainant, who had been notified of a scheduling conference in the case, went to the Superior Court on the designated date, Aug ust 1, 2003 , only to discover that the respondent did not appear. When contacted by the complainant as to why he failed to respond, the respondent advised her that the case had b een contin ued; he did not inform her that the case had been dismissed. The

fraud case was refiled by the respondent, with the assistance of Mr. Purcell, on May 5, 2004 and it was once again dismissed for failure of service on the defendant, on July 14, 2004. The probate ca se was file d in the wrong court, the Orphans' Court for Anne Arundel County conclu ded. The decedent was domiciled in Montgomery County. Accordingly, the court ordered, on July 15, 2003, the case transferred to the Montgomery County Orphans' Court "for administration and further action." That was accomplished on July 28, 2003,

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when the Montgomery County Register of Wills docketed the Anne Arundel County Orphans' Court's order. representative. The probate matter did not proceed smoothly. The inventory for the estate was not timely filed, even after a delinquency notice advised the complainant and the respondent of that fact and of the due date to avoid referral for hearing. The inventory was filed by the respondent more th an ten d ays after th e desig nated " due" d ate. Subsequently, on October 12, 2004, the failure to f ile a final inve ntory resulted in a show ca use referral to the Orphans' Court. Another show cause was issued six days later, this one to the complainant and the responde nt, asking why the complainant, as personal representative, should not be removed "for failure to perfect an inventory." Still later, on December 7, 2004, "another delinquent Sub sequently, after a hearing, the compla inant was appointed personal

notice was posted to the Respondent notifying him that the Interim Account of the Estate of Catherine Parker was past due on November 29, 2004 and that failure to file the account within twenty (20) da ys may result in the personal re presentative 's remova l." This app arently prompted the complainant to get new counsel, who effected the transfer of the probate matter to the Dis trict of C olumb ia, the situs of the decedent's property and her domicile and residence for more than a year prior to her death. While the respondent was representing the complainant, the indebtedness charged against the decedent's estate by her neighbor increased from a principal amount of $50,000.00 to "an a ggrega te amo unt of $ 57,000 .00 and increas ing due to unpa id intere st."

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Having found these facts, the hearing court concluded, as follows:

"Competency * * * *

"This Court finds by clear and convincing evidence that the Respondent acted incompe tently when he accep ted a case th at required f iling in a jurisdiction where he was not admitted to practice and when he failed to serve notice to Mr. Green. In Att 'y Grievance Comm 'n v. Thompson, 376 Md. 500 , 512 (2002) the M aryland Court of Appeals found that an attorney's failure to file timely reports and a pattern of mistakes that delay the closure of an estate are considered incompetent representation. The Respondent similarly delayed the closure of the estate for his client. Ms. B rashears needed an attorney familiar with the laws of the Dis trict of C olumb ia, and hired the Resp ondent ba sed on his a ssertion that h e could practice in the District. (P lain. Ex. 1,

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