Attorney Grievance Commission v. Alston

53 A.3d 1142, 428 Md. 650, 2012 WL 4350914, 2012 Md. LEXIS 610
CourtCourt of Appeals of Maryland
DecidedSeptember 25, 2012
DocketMisc. Docket AG No. 13
StatusPublished
Cited by5 cases

This text of 53 A.3d 1142 (Attorney Grievance Commission v. Alston) is published on Counsel Stack Legal Research, covering Court of Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Attorney Grievance Commission v. Alston, 53 A.3d 1142, 428 Md. 650, 2012 WL 4350914, 2012 Md. LEXIS 610 (Md. 2012).

Opinion

BARBERA, J.

Petitioner, Attorney Grievance Commission (Commission), acting through Bar Counsel, has filed with this Court a Petition for Disciplinary or Remedial Action against Respondent, Tiffany T. Alston. The Commission alleges several violations of the Maryland Lawyers’ Rules of Professional Conduct (MLRPC) in connection with Respondent’s representation of a client and improper maintenance of Respondent’s attorney trust account. Respondent previously acknowledged these violations in a Conditional Diversion Agreement (CDA). The Commission further alleges that Respondent failed to comply with the conditions of the CDA, which led to revocation of the CDA.

Pursuant to Maryland Rules 16-752(a) and 16-757(c), we designated the Honorable Alfred W. Northrop to conduct an evidentiary hearing and file written findings of fact and conclusions of law in this matter. Respondent’s failure to respond timely to the Petition for Disciplinary Action prompted Bar Counsel to request, and Judge Northrop to grant, an Order of Default. The Order of Default set in the matter for an evidentiary hearing on November 17, 2011. Respondent was notified of the Order of Default, the scheduled hearing date, and her right to file a motion to vacate the default within 30 days of its entry.

Respondent did not file timely a motion to vacate the Order of Default. Instead, on the morning of the hearing, she apparently brought to the Circuit Court a Motion to Vacate the Order of Default Nunc Pro Tunc. An unsigned version of the motion was presented to Judge Northrop (whether by Respondent or someone else) and, evidently, the motion had not been filed formally with the Clerk’s Office. Presumably at Respondent’s request, Judge Northrop granted her on that morning leave to be held harmless from appearing in the [655]*655courtroom until 9:30 a.m. Respondent, however, did not appear in court until more than 40 minutes later, after the case had been called; the judge denied Respondent’s written motion to vacate; and the hearing, which proceeded ex parte with Bar Counsel, had concluded. Upon her tardy arrival in the courtroom, Respondent requested, and the court denied, a reopening of the hearing.

On December 17, 2011, Judge Northrop issued an Opinion and Order setting forth his findings of fact and conclusions of law. Respondent has filed several exceptions relating to process and procedure, rather than the substance of the hearing judge’s findings and conclusions. For the following reasons, we overrule the exceptions and direct that Respondent be suspended indefinitely from the practice of law.

I.

The procedural facts we summarize here are drawn from Petitioner’s Exhibit 1, admitted at the November 17, 2011 hearing before Judge Northrop. Attached to that exhibit are 19 documents, including the CDA and subsequent correspondence between Bar Counsel and Respondent concerning her failure to comply with the terms of the CDA. As we shall see, the CDA in this matter was revoked eventually by the Commission upon its determination that Respondent was in material default of it. In that situation, the terms of the CDA, once confidential, are no longer so, and the contents of the CDA “may be disclosed in a subsequent proceeding against the attorney when relevant to a subsequent complaint based on similar misconduct.” See Md. Rule 16-736(h)(4), (5). We include the facts pertaining to the CDA and revocation of it as necessary to an understanding of both the procedural posture of this matter and the basis for one of the formal exceptions Respondent places before us for decision.

The CDA and its Aftermath

Dr. Walesia Robinson, a client of Respondent, filed a complaint with the Commission, precipitating Bar Counsel’s investigation and the parties’ entry into a CDA, which the Commis[656]*656si'on approved on July 21, 2010. See Md. Rule 16-736(a), (d).1 The CDA stayed related disciplinary and remedial proceedings pending Respondent’s satisfactory fulfillment of its terms. See Md. Rule 16-736(e)(4).

Paragraph 5 of the CDA spelled out several conditions to which Respondent agreed she would comply. Among those conditions were the following, set forth in sub-paragraphs C, D, E, and F: (1) Respondent was to continue in the care of the mental health therapist treating her at that time “for at least one year following approval of this agreement” and, “[d]uring that time, Respondent shall be responsible for obtaining quarterly status reports from [the mental health therapist] and shall provide such quarterly reports to Bar Counsel” (sub-paragraph 5C); (2) “[w]ithin sixty (60) days from the date this [657]*657agreement is approved, Respondent shall issue a written apology to Dr. Walesia Robinson and shall refund the sum of $5,000.00 to Dr. Robinson, representing one-half of the total amount paid by Dr. Robinson” (sub-paragraph 5D); and (3) Respondent would attend two Continuing Legal Education (CLE) programs specified in the CDA and promptly thereafter submit to Bar Counsel certification of her attendance at each program (sub-paragraphs 5E and 5F).

Several months later, after repeated efforts to secure Respondent’s compliance with the terms of the CDA, Bar Counsel, pursuant to Maryland Rule 16-736(1),2 notified Respondent, by letter dated December 21, 2010, of Bar Counsel’s “intention to declare a proposed default on the [CDA].” Bar Counsel explained: “It is Bar Counsel’s position that you have failed in a material way to comply with the Agreement, including sub-paragraphs C, D (specifically, the $5,000.00 refund to Dr. Robinson), E and F.” In that same December 21 letter, as required by Rule 16-736(f)(1)(C), Bar Counsel informed Respondent that she had the opportunity to submit in writing, by January 5, 2011, a response “to refute Bar Counsel’s determination and/or to offer an explanation or proposed [658]*658remedy satisfactory to Bar Counsel.” Respondent did not respond in any fashion to the December 21 notice-of-intent letter.

On January 18, 2011, Bar Counsel filed with the Commission a Petition to Revoke Conditional Diversion Agreement, based on Respondent’s failure to comply with the above-listed conditions of the CDA as well as the condition set forth in sub-paragraph 5B of the CDA. That condition directed that Respondent, with a monitor’s assistance, “shall implement new accounting procedures for her law practice,” including “measures that bring Respondent into compliance with the attorney trust account record-keeping requirements set forth in Maryland Rule 16-606.1.”

Also on January 18, 2011, Bar Counsel mailed to Respondent a copy of the petition to revoke the CDA, accompanied by a certified letter informing Respondent that, “[p]ursuant to Maryland Rule 16—736(f)(2), you may file a written response with the Attorney Grievance Commission within fifteen (15) days after service of the enclosed petition.” The Commission also wrote to Respondent by letter dated January 20, 2011, advising Respondent of the filing of the petition to revoke the CDA and her right to file a written response within 15 days of service of the petition. Respondent was further informed in the January 20 letter that, “[i]f the Commission concludes that you are in material default of the Agreement, it shall revoke the Agreement, revoke the stay of the disciplinary or remedial proceeding, and direct Bar Counsel to proceed in accordance with Rule 16-751,3 or as otherwise authorized by the Rules.”

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Cite This Page — Counsel Stack

Bluebook (online)
53 A.3d 1142, 428 Md. 650, 2012 WL 4350914, 2012 Md. LEXIS 610, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-alston-md-2012.