Opinions: January 3, 2011

Listen to this article

MARYLAND COURT OF APPEALS

Consumer Law

Telephone Consumer Protection Act

BOTTOM LINE: The Maryland Telephone Consumer Protection Act is not a statutory “specialty” law under the CJP and, therefore, the statute of limitations for actions brought pursuant to it is three years.

CASE: AGV Sports Group, Inc., et al. v. Protus IP Solutions, Inc. et al., Misc. No. 2, Sept. Term, 2010 (filed Dec. 20, 2010) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 10-1220-22, 16 pages.

FACTS: Seven Plaintiffs, individuals and corporations, filed an action in the federal district court alleging violation of the federal Telephone Consumer Protection Act and the Maryland Telephone Consumer Protection Act (MTCPA). Plaintiffs alleged they received hundreds of unsolicited fax advertisements from Protus. The advertisements promoted travel packages, health care discounts, toner, office equipment, life insurance, mortgages and other products and services. None of the Plaintiffs had a business relationship with Protus or the vendors whose advertisements appeared in the faxes, or had given prior consent to receive the faxes.

 Plaintiffs alleged that the faxes were sent since the effective date of the MTCPA, some of which were sent over three years before the pending law suit was filed in December 2008. The general statute of limitations in Maryland is three years under CJP §5-101, which is the default period that applies unless another limitations period is applicable. Section 5-102 creates a 12-year statute of limitations for a cause of action brought under a “specialty” statute.

 Plaintiffs contended that the MTCPA is a specialty statute, and therefore that the appropriate limitations period in this case should be 12 years. Defendants maintained that the MTCPA is not a specialty and is therefore subject to the general three-year limitations period, such that any faxes Protus sent over three years prior to Plaintiffs filing this cause of action are not properly at issue in this case.

 The district court determined that the limitations issue involved a question of unresolved Maryland law and, thus, should be decided by the Court of Appeals. The district court therefore certified the following question: Whether the MTCPA is a statutory “specialty” law with a statute of limitations of 12 years pursuant to §5-102(a)(6).

LAW: The MTCPA, Maryland Code (1975, 2005 Repl.Vol.), CL §§14-3201 to 14-3202, declares in pertinent part: “A person may not violate … [t]he Telephone Consumer Protection Act.” The history of the MTCPA reflects that it was enacted “merely to enable a private right of action under the TCPA.” Worhsam v. Ehrlich, 181 Md.App. 711, 730 (2008).

 The federal TCPA, 47 U.S.C. §227, and by implication, the MTCPA, seek to discourage and prevent unsolicited advertisements over the telephone lines. See, e.g., Portuguese American Leadership Council of the United States, Inc. v. Investors’ Alert, Inc., 956 A.2d 671, 674 (D.C. 2008). The unsolicited sending of faxes is among the conduct prohibited by the federal TCPA. See 47 U.S.C. §227(b)(1)(C), (b)(3) (2005) (making it unlawful, with limited exceptions, “to use any telephone facsimile machine … to send, to a telephone facsimile machine, an unsolicited advertisement”).

 Since, unlike other Maryland statutes, the MTCPA does not declare a period within which an action brought under it must be filed, the limitations period for actions brought under the MTCPA are governed by the relevant statute of limitations of the CJP. In Maryland, the default rule, for limitations purposes is that a “civil action at law shall be filed within three years from the date it accrues.” CJP §5-101. This period reflects “a legislative judgment of what is deemed an adequate period of time in which a person of ordinary diligence should bring his action.” Philip Morris USA, Inc., v. Christensen, 394 Md. 227, 240 (2006).

 The exception at issue here, set forth in §5-102, entitled “Specialties,” provides that an action on one of certain specified “specialties shall be filed within 12 years after the cause of action accrues.” An action brought under the MTCPA is not included in §5-102(a)(1) through (5), leaving open the question of whether such action comes within the meaning of §5-102(a)(6), “[a]ny other specialty.”

 Absent from the §5-102 is a definition of “[a]ny other specialty.” To resolve whether an action under the MTCPA is a specialty, however, two recent decisions, Greene Tree Home Owners Ass’n v. Greene Tree Assocs., 358 Md. 453 (2000), and Master Fin., Inc., v. Crowder, 409 Md. 51 (2009), provided the analysis.

 Greene Tree involved the question of whether claims brought under Maryland’s Consumer Protection Act (CPA) are based on a statutory specialty. The Petitioners, who sought damages for alleged violations of the CPA that arose from the Respondents’ defective roof construction, challenged on appeal the ruling of the circuit court that the claims brought under the CPA did not constitute a specialty within the purview of §5-102(a)(6). The Court of Appeals observed that “attempts to identify a statutory specialty by defining the nexus between a claim and the statute at issue have led to complexities and, arguably, conflicting results.” Greene Tree, 358 Md. at 481-82. The Court refrained from announcing in that case a specific definition of “[a]ny other specialty” and satisfied itself with the explanation that statutory specialties “usually have involved an action of debt for a fixed or determinable sum.” Id. It was noted, too, that “the form of action of debt strongly indicates that a claim for unliquidated damages is not one based on a statutory specialty.” Id. at 476.

 It was recognized that it would be bad “public policy” to hold that the CPA is a statutory specialty. See id. It was concluded that it was unnecessary to “attempt to state an all-encompassing definition of a statutory specialty … [and] it was sufficient to hold that a statutory specialty does not lie for unliquidated damages.” Id. at 482.

 In Crowder, the issue was whether claims based on the State Secondary Mortgage Loan Law (SMLL) constituted a specialty, under §5-102(a)(6). It was determined that the “undisputed proposition[ ] that, although claims based on a statute may fall within the meaning of ‘other specialty’ under CJP §5-102(a)(6), not all claims based in some way on rights, duties, obligations, prohibitions or remedies mentioned or provided for in a statute do fall within that category.” Crowder, 409 Md. at 66.

 A “workable general principle” was applied for determining when a statutory action constitutes an “[a]ny other specialty.” That framework has the following criteria: (1) the duty, obligation, prohibition, or right sought to be enforced is created or imposed solely by the statute, or a related statute, and does not otherwise exist as a matter of common law; (2) the remedy pursued in the action is authorized solely by the statute, or a related statute, and does not otherwise exist under the common law; and (3) if the action is one for civil damages or recompense in the nature of civil damages, those damages are liquidated, fixed, or, by applying clear statutory criteria, are readily ascertainable. Id. at 70. When all three criteria are met, the statutory action constitutes a specialty.

 Here, examination of the remedies available under the MTCPA, even without further consideration of the statute, disclosed why it is not a specialty. The remedies subsection of §14-3202 provides expressly that, in addition to the remedies available under the Maryland Consumer Protection Act, a party affected by a violation of the MTCPA is entitled to recover reasonable attorney fees and, as is also provided by the federal TCPA, the greater amount of actual damages or $500 per violation. In other words, the available remedies under the MTCPA include not only non-liquidated damages available under the Maryland Consumer Protection Act, which remedies, it was held in Greene Tree, drove the holding that a claim brought under Maryland’s CPA is not an “[a]ny other specialty,” but also actual damages in lieu of the $500 statutory damages.

 Actual damages, by definition, are not liquidated or for a fixed sum. Rather, actual damages require proof of actual loss, the amount of which is determined by the fact-finder. Liquidated damages involve a fixed sum that is determined at the time of contract formation. In the context of MTCPA claims, actual damages could involve, for example, the costs of the paper and ink used in processing the unsolicited faxes, diminution in the value of the facsimile machine associated with the receipt of those unsolicited faxes, and the lost employee productivity associated with the receipt, review, and disposal of the unwanted faxes, none of which is a fixed or liquidated sum. Cf. Greene Tree, 358 Md. at 476. The MTCPA is akin to the CPA, is not an “other specialty” under §5-102(a)(6), because, at least insofar as a claim for actual damages is concerned, the damages involved are not fixed or readily ascertainable. The availability of actual damages distinguishes the MTCPA from the SMLL, which is a specialty under §5-102(a)(6) because, inter alia, “ascertainment of [the damages] is readily ascertainable.” Crowder, 409 Md. at 72.

 It was therefore concluded that a claim brought under the MTCPA is not a specialty within the meaning of CJP §5-102(a)(6) “[a]ny other statutory specialty.” Accordingly, the Court of Appeals answered “no” to the question certified by the district court.

COMMENTARY: Protus explained the common law actions of trespass to chattel and conversion are oftentimes pursued in conjunction with TCPA-based claims.

Though the decision in this case was based on the non-liquidated damages authorized by the MTCPA, the facts that the same remedies available under the MTCPA (option of actual damages) and conduct prohibited by the MTCPA are addressed by the common law actions of trespass to chattel and conversion — in light of the Crowder criteria — further supported the conclusion.

AGV, seeking to avoid this conclusion, contended that, because virtually all claims brought under the MTCPA plead the statutory damages of $500, those claims should be afforded “[a]ny other specialty” treatment.

Greene Tree, however, rejected the argument that, based on public policy grounds, certain CPA-based actions should be afforded statutory specialty treatment while others not. “Were we to hold, however, that an action based upon the CPA is one based on a statutory specialty, the holding would apply to any action that might be brought under the CPA.” Greene Tree, 358 Md. at 480.

PRACTICE TIPS: The federal Telephone Consumer Protection Act targets the “increased use of automated telephone equipment to make telephone calls in bulk and fax unsolicited advertisements that cross state lines and fall outside the regulatory jurisdiction of individual states.” See, e.g., Portuguese American Leadership Council of the United States, Inc. v. Investors’ Alert, Inc., 956 A.2d 671, 674 (D.C. 2008).

Criminal Procedure

Jury instruction on missing evidence

BOTTOM LINE: Where the State destroyed highly relevant evidence in its custody, the defendant was entitled to a jury instruction on that missing evidence that would have permitted the jury to draw an inference that the evidence would have been unfavorable to the State.

CASE: Cost v. State, No. 116, Sept. Term 2009 (filed Dec. 17, 2010) (Judges Bell, Harrell, Battaglia, Greene, Murphy, ADKINS & Barbera). RecordFax No. 10-1217-21, 25 pages.

FACTS: Ashanti Cost, an inmate at the Maryland Correctional Adjustment Center (MCAC) in Baltimore, attacked another inmate, Michael Brown, who was being detained as a material witness for the federal government in a separate case. Cost was charged with assault, weapons offenses, and reckless endangerment. At the time of the attack, both Cost and Brown were locked down in their 23 hours/day.

At Cost’s trial, Brown testified that he had been a federal informant for approximately six years, and that Cost had previously threatened to kill Brown because he was an informant. According to Brown, Cost threw feces into Brown’s cell through cracks in the cell door, and issued a vulgar threat against Brown. Brown further testified that Cost grabbed Brown’s clothing through a food slot in the cell door, pulled him close to the door, and stabbed him in the abdomen with an approximately six-inch long metal weapon “like an ice pick.” Brown testified that he was admitted to Johns Hopkins Hospital.

At trial, Cost pointed out that he had been searched before being allowed to leave his cell, and no weapons or other contraband were found on his person. After the attack, the entire unit area was searched for weapons, and none were recovered.

Cost also challenged the alleged severity of Brown’s injury, drawing support from Brown’s hospital discharge forms. In particular, Cost relied on medical records stating that Brown’s alleged ice pick wound was “approximately 1 inch long [and] only penetrated the skin” and was “approximately 3 millimeters in length.” Brown’s recommended course of treatment was Tylenol or ibuprofen.

At trial, the State introduced as evidence photographs of Brown’s cell taken the evening following the alleged attack. The photographs show significant red staining on the floor of the cell, which Brown identified as his blood. Brown also testified that the photographs showed a towel which he had used to try to stop his abdominal bleeding.

Major Donna Hansen, who was MCAC’s investigative officer at the time of the attack and who took the photographs, testified that when she entered Brown’s cell she observed “a large amount of what appeared to be blood and smelled like blood on the floor and on the mattress[,]” as well what she believed to be several towels lying on the floor. She further testified that she did not collect any towels or bedding as evidence, as that would be the responsibility of the Department of Public Safety and Correctional Services’s Internal Investigative Unit (IIU). Hansen testified that on the night of the attack, she placed a call to Detective Bob Fagen, the IIU duty officer on the day in question.

According to Detective Karen Griffiths, a detective with the IIU, she first became aware of the attack when she received a call from Hansen five days after it occurred.  Having been assigned to the case, Griffiths went to MCAC to investigate. She did not, however, examine Brown’s cell, because it had been cleaned. In addition, no physical evidence had been preserved from the cell-neither towels nor bedding had been stored for Griffiths’ review. Brown’s clothing from the night of the attack, which Hansen had collected, was not accepted by IIU’s crime lab because of the age and the lack of chain of custody.

At trial, Cost requested a jury instruction regarding the destruction of evidence by the State. The trial court denied the request.

The jury acquitted Cost of the assault and weapons charges, but convicted him of reckless endangerment. Cost was sentenced to five years incarceration, to be served consecutive to his existing prison term. The Court of Special Appeals affirmed.

Cost appealed to the Court of Appeals, which reversed.

LAW: A trial court must give a requested jury instruction where “(1) the instruction is a correct statement of law; (2) the instruction is applicable to the facts of the case; and (3) the content of the instruction was not fairly covered elsewhere in instructions actually given.” Dickey v. State, 404 Md. 187, 197-98 (2008); see also Rule 4-325(c).

On review, jury instructions “[M]ust be read together, and if, taken as a whole, they correctly state the law, are not misleading, and cover adequately the issues raised by the evidence, the defendant has not been prejudiced and reversal is inappropriate. Reversal is not required where the jury instructions, taken as a whole, sufficiently protect[ed] the defendant’s rights and adequately covered the theory of the defense.” Fleming v. State, 373 Md. 426, 433 (2003).

Cost’s proposed instruction is most accurately labeled as a “missing evidence” instruction, which can include situations where the State intentionally or negligently destroyed-or merely failed to produce-relevant evidence. A “missing evidence” instruction in a criminal proceeding is recognized only against the defendant. See MPJI-CR 3:26.

The distinct question here, however, was when is a “missing evidence” instruction required against the State in a criminal proceeding.

In Patterson v. State, 356 Md. 677, 682 (1999), the defendant was convicted of drug possession after police discovered a jacket in the trunk of his car with crack cocaine in its pockets. See id. at 680-81. The jacket was not itself introduced into evidence; instead, prosecutors offered into evidence a photograph of the jacket in the trunk of the defendant’s car. See id. The defendant unsuccessfully requested a “missing evidence” jury instruction. Id. at 682.

The Court analyzed the trial court’s refusal to instruct the jury under substantive Maryland evidence law and on due process grounds. First, it held that, as a matter of Maryland law, the trial court did not err in rejecting the missing evidence instruction. Id. at 694. The Court then considered the defendant’s claim that the defendant’s due process rights were violated by the state’s failure to produce the jacket. While noting that other states had found additional protections for defendants in their state constitutions, it found that Maryland’s Constitution guaranteed no additional protections. See id. at 694-96.

“Petitioner contends that the trial court’s refusal to give the missing evidence instruction denied him due process of law. The Supreme Court made clear in Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), that when a defendant alleges a denial of due process he or she must prove that the government acted in bad faith[.] The Youngblood standard logically must extend to the refusal to instruct on the government’s failure to preserve evidence.” Patterson, 356 Md. at 694-96. The Court of Appeals thus held that neither Maryland law nor due process required a jury instruction for the State’s failure to produce evidence.

In Arizona v. Youngblood, 488 U.S. 51 (1988), a man was convicted for the rape of a young boy despite inconclusive scientific evidence. One sample of the assailant’s semen had not been refrigerated by the State, and expert testimony given at trial demonstrated that the defendant could have been exonerated if the evidence had been preserved. After conviction, the Arizona Court of Appeals reversed, holding that the State had denied the defendant due process by failing to preserve the evidence. Id. at 54. The Supreme Court disagreed, holding that the Due Process clause is not violated, and thus the charges should not be dismissed, where the defendant has failed to show bad faith by the State in failing to preserve evidence that could be subject to further tests. Id.

Since Youngblood, states have struggled to determine the scope of the “bad faith” requirement. A few states have adopted the Youngblood standard and refused to provide extra protections for a defendant in a criminal case. See, e.g., Walker v. State, 264 Ga. 676 (Ga.1994); State v. Lewis, 70 Ohio App.3d 624 (Ohio Ct.App.1990); State v. Drdak, 330 N.C. 587 (N.C.1992); State v. Ortiz, 119 Wash.2d 294 (Wash.1992).

Other states have maintained a focus on due process, but sidestepped Youngblood by finding additional protections for criminal defendants in their state constitutions. See,  e.g., Thorne v. Dep’t. of Pub. Safety, 774 P.2d 1326, 1330 (Alas.1989); State v. Morales, 232 Conn. 707 (Conn.1995); State v. Matafeo, 71 Haw. 183 (Haw.1990); Commonwealth v. Henderson, 411 Mass. 309 (Mass.1991).

The state due process protections for destroyed evidence are often applied in the form of a balancing test to determine whether some remedy-be it dismissal or a “missing evidence” instruction-is warranted. See Deberry v. State, 457 A.2d 744 (Del.1983); State v. Chouinard, 96 N.M. 658 (N.M.1981).

Courts have been even more willing to depart from the bad faith requirement when the eventual remedy is a missing evidence instruction, not the dismissal of charges. See Hammond v. State, 569 A.2d 81 (Del.1989); Fletcher v. Anchorage, 650 P.2d 417 (Alaska Ct.App.1982).

In Patterson, the Court of Appeals affirmed that Maryland’s constitutional protections do not extend beyond Youngblood, nor apply in cases where the defendant cannot show bad faith by the police. See Patterson, 356 Md. at 694-96. Thus, Cost could not find direct assistance in the approaches of states whose constitutions provide the defendant additional due process protections.

Yet the holding in Patterson did not definitively establish the limits of substantive Maryland evidence law, the other theory which may support a missing evidence instruction. See id. at 694.

Patterson presented the “general” or “typical” case, likely to be repeated, in which some piece of crime scene evidence, not of major import, was not retained or analyzed.

Here, by contrast, the crime scene, allegedly containing blood-stained linens and clothing, and dried blood on the floor, certainly would contain highly relevant evidence with respect to the crime for which Cost was charged, which normally would be collected and analyzed. Indeed, Brown’s cell was sealed off from use, with the alleged crime scene left intact, pending IIU’s investigation. Moreover, the missing items were actually held as evidence, completely within State custody. It appeared that at least some of these items were eventually submitted for laboratory examination, but were rejected because they were not submitted quickly enough, and because chain of custody was not properly preserved.

A factual issue at trial was whether Brown was, indeed, stabbed, and whether the alleged stabbing caused significant bleeding, as Brown insisted. While Cost was able to shed doubt on Brown’s claim through Brown’s medical records, he was prevented from supporting his case with laboratory analysis of Brown’s clothing, towel, sheets, and the red substance on the floor of Brown’s cell. Such evidence might well have created reasonable doubt as to Cost’s guilt. This missing evidence goes to the heart of the case.

The application of the missing evidence inference against the State in a criminal case does not by itself amount to “substantive proof that the evidence was unfavorable.” Bereano v. State Ethics Comm’n, 403 Md. 716, 747 (2008). The instruction on missing evidence merely permits an evidentiary inference, and neither establishes a legal presumption nor furnishes substantive proof.

Under these circumstances a “missing evidence” instruction, which would permit but not demand that the jury draw an inference that the missing evidence would be unfavorable to the State, should have been given.

Accordingly, the judgment of the Court of Special Appeals was reversed.

COMMENTARY: After his conviction, Cost received records indicating that Brown had a history of inflicting stab wounds upon himself. At trial, Cost unsuccessfully argued that this information should have been disclosed as material under Brady v. Maryland, 373 U.S. 83 (1963).

Because Cost was entitled to the requested jury instruction, the question of whether the failure to disclose Brown’s medical history constituted a Brady violation was not addressed. On retrial, however, Cost will have the benefit of Brown’s medical history.

Professional Responsibility

Disbarment

BOTTOM LINE: Disbarment was the appropriate sanction for attorney who failed to properly monitor his clients’ cases, repeatedly avoided communicating with them, and failed to cooperate with Bar Counsel during a subsequent investigation into his professional conduct.

CASE: Attorney Grievance Commission v. Fox, No. 6, Sept. Term, 2009 (filed Dec. 20, 2010) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 10-1220-20, 36 pages.

FACTS: In 2002, Ronnie Miller and David Pearson retained David Fox to represent them in connection with an automobile accident. In March 2004, Fox filed a complaint against the other driver in the circuit court for Prince George’s County. Accordingly, a Writ of Summons was issued, but it listed the wrong address for the defendant.

On October 18, 2004, Fox was sent a Notification of Contemplated Dismissal for lack of service, and on December 30, 2004, an Order of Dismissal was entered. At no point did Fox file a motion showing cause to defer the entry of the Order because, according to Fox, he never received the Order. For this reason, Fox believed that the dismissal was faulty, and that the case was capable of being revived.

Fourteen months later, Fox requested a reissue of the summons for the defendant. Although the case had been dismissed, the summons was reissued on March 2, 2006. Ten months later, Fox again requested and was reissued a summons.

Pearson testified that he received a copy of the Complaint in 2004 or 2005. At that time, he noticed that Fox had confused Miller and Pearson, incorrectly listing Miller as the driver and Pearson as the passenger. Again, the defendant’s address was incorrect as well. Both Pearson and Miller advised Fox of these factual mistakes.

On January 5, 2007, Miller and Pearson received a “Plaintiff’s First Amended Complaint.” However, no such document was ever filed with the circuit court. Additionally, the document again contained the same factual mistakes. Pearson also noticed that this document was not stamped like the original complaint. Pearson made numerous calls to Fox’s office in an attempt to notify Fox about his concerns with the document. However, these calls were never returned.

In late 2007, Pearson, who had by this time retained new counsel, learned that his case had been dismissed. His new counsel attempted to contact Fox, but Fox’s only reply was that he had been trying to locate the defendant. Miller stated that Fox had told him that he was waiting for the Judge to give him a court date and that he had to be patient.

Miller learned that the case had been dismissed after he hired a new attorney to look into the matter. Fox became evasive once Miller learned that the case had been dismissed. On February 21, 2009, Miller requested by letter that Fox attempt to have the dismissal set aside. On April 17, 2009, Fox wrote to Miller advising him that he could take no action to reverse the dismissal because Miller had hired a new lawyer.

In May 2001, Abdul Barrie retained Fox to represent him in connection with an automobile accident involving an uninsured motorist. Fox initially pursued an uninsured motorist claim against Barrie’s insurance carrier, GEICO, by filing for Medical Payments coverage benefits and seeking a settlement.

In January 2002, GEICO sent 5 checks to Fox’s office. On February 5, 2002, GEICO advised Fox that Barrie had exhausted his payments. Fox replied asking to whom the payments were made. Thereafter, no other documents appeared in Fox’s file concerning Barrie’s payments. The checks were never negotiated, and GEICO reissued them in August 2002, and then again several more times. On May 9, 2003, GEICO issued an uninsured motorist claim final settlement check to Fox in the amount of $5,825. This check was also never negotiated. During a period of over six 6 years, a total of 50 checks were sent to Fox’s office, none of which were ever negotiated.

At trial, Fox testified about his system for tracking the status of cases; specifically insurance settlement PIP cases. Fox testified that when a case was awaiting payment from an insurance company, it was placed in a “hot box” in Fox’s office, which Fox frequently checked. However, by Fox’s own admission this system broke down, and the file was misplaced. Fox was unable to explain what happened to the 50 checks that had been sent to his office, but testified that he suspected that his mail was being stolen. However, at no point did Fox get a P.O. Box or instruct GEICO to mail the checks elsewhere.

Throughout the representation Barrie had great difficulty communicating with Fox. Barrie testified that he went to Fox’s office many times, but was consistently told that Fox was unavailable to meet with him. Barrie also testified that he called Fox many times throughout the representation, and on the few occasions Barrie was able to speak with Fox, he was told that he had to wait because cases such as his “take time.” However, many of Barrie’s calls to Fox simply went unreturned. Barrie was also never informed that his case had been settled, and never agreed to a final settlement amount.

Barrie hired new counsel after being sued by his medical provider, Medical Support Services, Incorporated, for non-payment of the medical bills incurred as a result of the accident. On May 22, 2008, McGuire attempted to contact Fox about Barrie’s case. However, McGuire’s phone call to Fox went unreturned. On June 26, 2008, McGuire wrote to Fox, notifying him that he was now representing Barrie, and requesting a copy of Fox’s case file. McGuire never received a response from Fox. McGuire wrote to the Fox a second time on July 8, 2008, again requesting a copy of Barrie’s file, to which he again received no response. In 2008, GEICO reissued the checks and the final settlement check to McGuire, who distributed the proceeds to Barrie.

As a result of his conduct in the Miller/Pearson and Barrie cases, the circuit court issued a report concluding that Fox violated Maryland Lawyers’ Rules of Professional Conduct, including, inter alia,  Rule 1.1, (Competence), 1.2 (Scope of Representation), 1.3 (Diligence), and 1.4 (Communication). Additionally, the court found Fox uncooperative with Bar Counsel during the course of its investigation of these cases. Thus, Fox was also found to have violated Rule 8.1(b) (bar admission and disciplinary matters) because he failed to respond to Bar Counsel’s requests for information.

LAW: As to the Miller/Pearson case, Fox took exception to court’s conclusion that he violated Rule 1.1 (competence). The court based that conclusion on the finding that Fox demonstrated incompetence by neglecting the case after filing the complaint, and showing a lack of thoroughness and preparation that ultimately led to the case being dismissed. In excepting to that conclusion, Fox cited his inability to effect service of process because of his receiving an incorrect address for the defendant, and the repeated reissuing of summonses by the trial court, then concluded that while he, Fox, “may have been careless or even neglectful, that does not rise to the level of incompetence.”

The facts did not show that, after filing the initial complaint in March 2004, Fox made any effort, short of requesting the summons be reissued, to perfect service in order to preserve the case. Such apathy towards the need for service to preserve the case did not begin to approach the “thoroughness … reasonably necessary for the representation.” MRPC 1.1. Accordingly, Fox’s exception was overruled.

Fox’s second exception was to the conclusion that he violated Rule 1.2(a) (scope of representation and allocation of authority between client and lawyer) by his “ignorance of the case’s status, combined with his refusal to provide Miller and Pearson with accurate information about their case,” following their requests for such information. Fox argued that he did not stray from the scope of the representation — trying to recover damages for the auto accident claim — and cited Attorney Grievance Comm’n v. Briscoe, 357 Md. 554 (2000), for the proposition that Miller and Pearson’s dissatisfaction with his representation, in and of itself, was insufficient to find a violation of the Rule.

Contrary to Fox’s assertion, Briscoe provided little assistance here. There, it was concluded that there were insufficient facts to support finding a violation of Rule 1.2, where the hearing judge stated only that the client, after having paid his lawyer for representation in a criminal case, was “dissatisfied” with the representation. Briscoe, 357 Md. at 564. No further detail was given regarding the basis for the client’s dissatisfaction. In the instant matter, by contrast, there was extensive detail concerning the shortcomings of Fox’s representation of Miller and Pearson. Therefore, this exception was overruled.

Next, Fox took exception to the conclusion that he violated Rule 1.3 by failing to diligently pursue, or even monitor, Miller and Pearson’s case. Fox stressed that Rule 1.3 requires only that an attorney act with “reasonable diligence and promptness in representing a client.” MRPC 1.3. He argued that his conduct was reasonable because he filed the complaint, attempted service, and was unaware of the dismissal of the case.

In Attorney Grievance Comm’n v. Zdravkovich, 362 Md. 1 (2000), it was held that a lawyer violated Rule 1.3 by failing to respond to phone calls and letters from his client, and failing to provide an accounting for earned fees. Here, not only did Fox repeatedly fail to respond to inquiries from his clients, he also declined to take any significant steps to prosecute their case for several years after filing the complaint. Under no fair interpretation of Rule 1.3 could such inattentiveness be considered “reasonable” in this case. This exception, therefore, was overruled.

Fox’s fourth exception was to the conclusion that he violated Rule 1.4 (communication) by not keeping Miller and Pearson reasonably informed about the status of their case, and not promptly complying with their reasonable requests for information. Fox pointed to no actual evidence that suggested that the court clearly erred in finding that he became evasive when contacted by Miller or Pearson, and that, when he did reply, he provided them with inadequate or dismissive responses. Thus, the factual findings showing that Fox violated Rule 1.4 by not keeping Miller and Pearson reasonably informed, and by ignoring reasonable requests for information regarding their case, were sustained. See Attorney Grievance Comm’n v. Lee, 393 Md. 385, 408 (2006). Therefore, this exception was overruled.

In the Barrie case, Fox took exception to, inter alia, the conclusion that he violated Rule 1.16 (declining or terminating representation) by effectively terminating his representation when he abandoned the case, then not protecting Barrie’s interests when he failed to respond to requests by Barrie’s new counsel for information about the case. Fox argues that he cooperated with McGuire. The facts suggested otherwise, however, because Fox failed to return McGuire’s phone calls and completely ignored McGuire’s inquiries. Accordingly, this exception was overruled.

Fox, arguing that his conduct was “neither egregious not intentional,” recommended a reprimand, or, in the alternative, “a short term suspension.” Bar Counsel, recommended disbarment, pointing to Fox’s abandonment of his clients and his refusal to cooperate with Bar Counsel.

In Attorney Grievance Comm’n v. Kwarteng, 411 Md. 652, 660-61 (2009), a factually similar case, the appropriate sanction was disbarment. There, an attorney, while representing a client in both an unemployment discrimination case and a fire tort case, neglected his client’s cases to the point of abandonment. Id. at 658. He also failed to communicate with his client and keep him informed about the status of the cases. Additionally, the attorney did not respond at all to inquiries from Bar Counsel. Id. at 657-58.

To be sure, unlike in Kwarteng, Fox eventually — albeit belatedly — provided Bar Counsel with the requested information. Yet, Fox violated all of the same rules as in Kwarteng, plus he violated Rule 8.4(c) by misrepresenting to Miller that “we’ve already been to court,” when in fact Fox had never been to court in that case. Moreover, his excuses for failing to respond to Bar Counsel’s inquiries — health problems, technical problems, the possibility that someone was stealing his mail — were unavailing.

The combination of Fox’s violations — in particular, abandonment of his clients, misrepresentation, and failure to cooperate with Bar Counsel’s investigation — supported the conclusion that Fox is unfit to practice law in Maryland and disbarment was the appropriate sanction to protect the public.

Accordingly, Fox was disbarred.

COMMENTARY: Although Fox expressed remorse for his conduct, Judge Bernard, of the circuit court, found “Fox’s so-called remorse to be merely an attempt to excuse his failure to adequately represent his clients.” Fox countered that it was “quite difficult to be remorseful about anything until the conduct is called to your attention.”

Fox’s point may have been true in and of itself. Nonetheless, Miller, Pearson, and Barrie repeatedly attempted to contact Fox to learn the status of their cases — thereby calling attention to his lack of communication — and he repeatedly refused to respond. Accordingly, Fox’s argument was unpersuasive given his willful and blissful ignorance of his misconduct. In addition, Fox’s purported remorse carried little mitigative weight when contrasted with his repeated assertions that he acted reasonably in both the Miller/Pearson and the Barrie cases. Fox’s remorse, it appeared, was “more in the nature of damage control than of sincere remorse.” Attorney Grievance Comm’n v. Pennington, 387 Md. 565, 597 (2005).

PRACTICE TIPS: In the context of disciplinary proceedings, some mitigating factors include: “absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.” Attorney Grievance Comm’n v. Sweitzer, 395 Md. 586, 599 (2006).