Attorney Grievance Commission v. Elmendorf

946 A.2d 542, 404 Md. 353, 2008 Md. LEXIS 191
CourtCourt of Appeals of Maryland
DecidedApril 17, 2008
DocketMisc. Docket AG No. 57, Sept. Term, 2006
StatusPublished
Cited by19 cases

This text of 946 A.2d 542 (Attorney Grievance Commission v. Elmendorf) 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. Elmendorf, 946 A.2d 542, 404 Md. 353, 2008 Md. LEXIS 191 (Md. 2008).

Opinion

BELL, Chief Judge.

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751, 1 filed a Petition For Disciplinary or Remedial Action against John A. Elmendorf, the respondent. The petition charged that the respondent violated Rules 1.2, Scope of Representation, 2 Rule 4.1, Truthfulness in Statements to Others, 3 and 8.4, Misconduct, 4 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.

*355 We referred the ease, pursuant to Rule 16-752(a), 5 to the Honorable S. Michael Pincus, of the Circuit Court for Montgomery County, for hearing and to make findings of fact and draw conclusions of law. The respondent filed an answer to the Petition and both parties appeared at and presented testimony, documentary evidence and argument at the hearing held on the Petition. Following the hearing, the hearing court, pursuant to Rule 16-757(c), 6 found facts by the clear and convincing standard and drew conclusions of law, as follows:

“Findings of Fact and Conclusions of Law

“1.) Suggesting to a Person That it is Acceptable to Misrepresent Information to the Court

“a.) Findings of Fact

“In July 2003, Respondent became acquainted with a woman named Laura McCarthy through an internet dating site. Respondent’s communications and interactions with Ms. McCarthy were principally of a social nature. On the afternoon of *356 July 28, 2003, Ms. McCarthy and the Respondent exchanged a series of electronic mail messages in which Ms. McCarthy sought information about grounds for divorce. Specifically, Ms. McCarthy inquired as to whether there was any way to get around the requirement that the parties be separated one year in order to obtain a no-fault divorce. Respondent sent a brief, off-the-cuff response via e-mail, to wit:

“You can file whatever you want so long as the parties say that it has been a year, the court won’t question it so long as the parties agree to that.”

Although this statement does not expressly state that it is acceptable to lie to the Court in order to obtain certain relief, Ms. McCarthy could have reasonably construed it to suggest that the parties could agree to present false testimony to obtain a divorce earlier than permitted by law.

“Respondent had dinner with Ms. McCarthy two days later. At dinner, Ms. McCarthy told Respondent that she did not recall seeing his e-mail. She clarified that she was looking to find out whether she would have to be separated for a year if she alleged abuse by her husband. There is no indication that Ms. McCarthy did not seek any further information or direction from the Respondent on this subject. Ms. McCarthy never retained the Respondent to represent her and there is no evidence that she ever intended to do so.

“b.) Conclusions of Law

“The Commission contends that by engaging in this behavior, Respondent violated sections 1.2(d) and 8.4(d) of the Maryland Rules of Professional Conduct.... This Court concludes that although Ms. McCarthy knew that the Respondent was an attorney, and although the subject matter of the conversation concerned legal issues, the overall nature of their relationship and the content of the communication in question were such that no attorney-client relationship was established. Consequently, Respondent can not be, and is not, in violation of Rule 1.2(d). However, this Court reaches a different result by applying Rule 8.4(d) to Respondent’s conduct----As stat *357 ed above, this Court is of the opinion that Respondent’s e-mail of July 28, 2003 was such that it could have given Ms. McCarthy the impression that intentionally misrepresenting information to the Court is acceptable so long as all parties involved set forth the same information. Because the administration of justice is premised on the notion that the parties and witnesses should tell the truth to the Court, the Court finds by clear and convincing evidence that Respondent’s actions in this matter are prejudicial to the administration of justice. Accordingly, this Court finds that Respondent stands in violation of Rule 8.4(d) on this issue.

“2.) Miscommunications About Whether a Lien was Recorded

“Respondent represented Huntley Square Condominium Association in various matters including the collection of delinquent accounts. Respondent was required to collect fees owed to the Condominium by Amelia C. Dodson, who owned a residential unit therein. As a result, on November 1, 2003, Respondent prepared and sent to Ms. Dodson a ‘Notice of Intention to File Lien.’ This Notice informed Ms. Dodson of her current indebtedness and further informed her that, if she did not pay the debt within 30 days, a lien may be recorded against the property. Ms. Dodson subsequently signed a Confessed Judgment Promissory Note, agreeing to make payments on the debt from January 2004 to June 2004. In December 2003, Respondent prepared a Statement of Lien, but did not record this lien. No further action was taken on this case between December 2003 and April 2004. Further, and of significant importance, Ms. Dodson allegedly did not make her promised payments during this period.

“Respondent, on April 12, 2004, issued a standard ‘Final Notice of Foreclosure’ to Ms. Dodson. Among other things, this letter mistakenly stated that a lien had been recorded against the property and that foreclosure would be the next step, in the event the debt was not paid by Dodson within 30 days. Although Respondent could have seen from a review of *358 the file that the lien had not actually been recorded, Respondent was operating under the mistaken assumption that the subject lien had in fact been recorded by his paralegal back in December, 2003.

“On May 12, 2004, Respondent had a conversation with the law offices of James Almand, Esquire. Mr. Almand was now representing Ms. Dodson in connection with her divorce. During this exchange, Respondent realized that the lien in question had in fact not been recorded, and Respondent subsequently informed Mr. Almand that he would ‘immediately’ remedy this error by filing the lien. Unfortunately, the lien could not be filed immediately because the Huntley Square Condominium Association, Respondent’s client, had not deposited the requisite funds needed for this transaction into the escrow account. Despite the fact that Respondent had told Mr. Almand that he would ‘immediately’ file the lien, Respondent failed to promptly notify Mr. Almand that, in fact, the lien still could not be recorded. However, Respondent and Mr. Almand began another series of communications beginning on or about May 18, 2004, in which the two attorneys agreed to suspend any collection activities regarding Ms.

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946 A.2d 542, 404 Md. 353, 2008 Md. LEXIS 191, Counsel Stack Legal Research, https://law.counselstack.com/opinion/attorney-grievance-commission-v-elmendorf-md-2008.