ATTORNEY GRIEVANCE COMMN. OF MD. v. HITSELBERGER, 3 (Md.App. 1998)

Misc. Docket AG. No. 3, September Term, 1998.Court of Special Appeals of Maryland.
Filed: December 2, 1998.

Bell, C.J., Eldridge, Rodowsky, Chasanow, Raker, Wilner, Cathell, JJ.

PER CURIAM

The Attorney Grievance Commission of Maryland, (the “Commission”), the petitioner, through Bar Counsel and pursuant to Maryland Rule 16-709,[1] filed a Petition for Disciplinary Action against Mykel Hitselberger, the respondent, for misconduct, alleged in two complaints that were filed with the Commission. The petitioner alleged that the respondent violated several of the Rules of Professional Conduct, Maryland Rule 16-812, namely, 1.4 (Communication);[2] 8.4. (Misconduct);[3]
and in each case, 1.1 (Competence);[4] 1.3 (Diligence);[5]
and 8.1 (Bar Admission and Disciplinary Matters).[6]

We referred the matter to the Honorable Herbert L. Rollins of the Circuit Court for Frederick County to make findings of fact and draw conclusions of law pursuant to Maryland Rule 16-711(a).[7] Although personally served with the Petition for Disciplinary Action, Interrogatories and Requests for Admissions of Fact and Genuineness of Documents, the respondent filed no answer or other response. Therefore, an Order of Default was entered against him. Following a hearing, at which the respondent did not appear, Judge Rollins filed Findings of Fact and Conclusions of Law as follows:

“FINDINGS OF FACT“I. BC Docket No. 97-67-11-8 (Complaint of James R. Pyles)
“1. Throughout the relevant period beginning in 1993 and continuing through 1996, the Respondent was on retainer by the Maryland Troopers Association to represent its members with respect to certain employment related administrative charges.

“2. In 1993, the Respondent began representing Trooper First Class (TFC) James R. Pyles in connection with an investigation of possible violations of Maryland State Police administrative policies allegedly committed by TFC Pyles.

“3. In October 1994, the Maryland State Police filed administrative charges against TFC Pyles.

“4. On May 16, 1995, the Respondent, as counsel for TFC Pyles, initiated an action seeking judicial relief from the administrative charges by filing a document entitled “Motion to Dismiss Administrative Charges or, In the Alternative, Petition for Order to Show Cause” in the Circuit Court for Allegany County.

“5. The motion/petition prepared and filed by the Respondent requested that the administrative charges against TFC Pyles be dismissed on the ground that such charges were time-barred under a one-year limitations period prescribed in the Law Enforcement Officers’ Bill of Rights, codified at Maryland Code, Article 27, § 727, et seq.

“6. On May 17, 1995, the Circuit Court for Allegany County issued an Order for the Maryland State Police to show cause why the relief prayed in TFC Pyles’ petition should not be granted.

“7. On June 20, 1995, the Maryland State Police, by its counsel, filed a timely response to the show cause order.

“8. On December 14, 1995, a hearing on the motion to dismiss administrative charges was held before the Honorable Gary G. Leasure of the Circuit for Allegany County. Judge Leasure reserved his ruling at the conclusion of the hearing.

“9. On January 3, 1996, Judge Leasure issued a written Opinion and Order denying TFC Pyles’ motion to dismiss the administrative charges. On the same date, copies of Judge Leasure’s Opinion and Order were mailed to counsel for the parties.

“10. The Respondent did not notify his client, TFC Pyles, of the court’s ruling.

“11. On January 17, 1996, TFC Pyles learned of the circuit court’s decision after receiving notice from a Maryland State Police representative about the scheduling of an administrative hearing.

“12. Upon learning of the circuit court’s decision, TFC Pyles contacted the Respondent for an explanation and to discuss possible further action. TFC Pyles arranged to meet with the Respondent on January 24, 1996.

“13. At their meeting on January 24, 1996, it was agreed that the Respondent would note an appeal of the circuit court’s decision to the Court of Special Appeals of Maryland.

“14. The Respondent failed to take steps to secure appellate review of the circuit court’s decision by the Court of Special Appeals.

“15. On March 18, 1996, TFC Pyles contacted the Respondent by telephone to inquire about the status of his appeal. The Respondent represented to TFC Pyles that the appeal had been filed.

“16. Following his conversation with the Respondent, TFC Pyles learned that the clerk’s offices at the Circuit Court for Allegany County and the Court of Special Appeals had no record of an appeal having been filed on his behalf.

“17. On March 19, 1996, TFC Pyles left a message on the Respondent’s answering machine requesting a copy or copies of any document(s) prepared and filed by the Respondent to note an appeal to the Court of Special Appeals. The Respondent did not respond to the TFC Pyles’ message.

“18. TFC Pyles subsequently requested the assistance of his union lodge president, TFC Bruce Whitaker, in seeking information from the Respondent. TFC Whitaker brought the matter to the attention of the Executive Board of the Maryland Troopers Association.

“19. As a result of TFC Whitaker’s action, inquiry was made of the Respondent at the April 1996 Executive Board meeting of the Maryland Troopers Association. In response, the Respondent stated that he had prepared and sent out a notice of appeal. He further represented that he had written a check on his office operating account to pay the filing fee and that he was waiting to receive the canceled check back from his bank.

“20. At a subsequent meeting of the Maryland Troopers Association’s Executive Board on May 21, 1996, the Respondent advised TFC Whitaker that he still had not received his canceled check.

“21. In August 1996, TFC Pyles forwarded a complaint against the Respondent to the Attorney Grievance Commission.

“22. In letters dated September 5, 1996 and September 25, 1996, Bar Counsel requested that the Respondent respond in writing to TFC Pyles’ complaint. The Respondent did not respond in a timely manner those letters.

“23. The Respondent responded to the complaint only after the Petitioner’s investigator visited the Respondent’s office on November 14, 1996.

“24. In a letter dated November 18, 1996, the Respondent wrote that his records indicated that a Notice of Appeal for TFC Pyles’ appeal of the circuit court’s decision `was prepared on January 29, 1996.’ The Respondent further stated that he had a `specific recollection of preparing the Notice and copy to Attorney Hoffman [counsel for the Maryland State Police] and placing them in the mailbox near my office on my way out of the office late that evening.

“25. The Clerk of the Circuit Court for Allegany County has no record of receiving a Notice of Appeal of the court’s decision in TFC Pyles’ case against the Maryland State Police.

“26. Donald E. Hoffman, Assistant Attorney General, who represented the Maryland State Police, never received a copy of a Notice of Appeal or any other correspondence from the Respondent relating to an appeal of the circuit court’s decision in the Pyles case.

“27. The Respondent did not attempt to verify that the Notice of Appeal, if mailed as claimed by the Respondent, was received in a timely manner by the Clerk of the Circuit Court for Allegany County.

“28. The Respondent has been unable to produce any evidence that he wrote a check that was enclosed with the Notice of Appeal allegedly sent to the clerk of the Circuit Court for Allegany County.

“29. The Respondent did not respond to specific requests for information and bank records made by Petitioner’s investigator during the course of Bar Counsel’s investigation.

“II. BC Docket No. 97-240-11-8 (Kenneth Wayne Lee Guardianship Matter)
“30. On March 23, 1990, pursuant to an Order signed by the Honorable Peter J. Messitte of the Circuit Court for Montgomery County, the Respondent was appointed Temporary Successor Guardian of the property of Kenneth Wayne Lee.

“31. The Order naming the Respondent guardian directed him to file with the court a preliminary report on the condition of the guardianship estate `no later than 45 days from the date’ of the Order.

“32. The Respondent did not file a preliminary report within 45 days as directed by Judge Messitte’s Order.

“33. In a letter dated June 19, 1990 addressed to Judge Messitte, the Respondent stated that he had not yet received requested bank records but had received assurances that such records would be forwarded. The Respondent wrote that upon receipt of the bank records, he would promptly prepare a final report on this matter.

“34. After sending the June 19, 1990 letter, the Respondent failed to take steps to obtain the bank records and other financial records needed to prepare an accounting of the guardianship estate.

“35. For a period of more than six years, the Respondent performed no work to fulfill his responsibilities as guardian of the property of Kenneth Wayne Lee.

“36. During that period, the Respondent ignored periodic inquiries by the Trust Clerk of the Circuit Court for Montgomery County concerning the status of the Lee guardianship estate.

“37. On November 14, 1996, the Circuit Court for Montgomery County issued an Order to show cause, signed by the Honorable Michael D. Mason, ordering the Respondent to appear in court on December 6, 1996 to show cause why he should not be found in contempt and removed as guardian for failure to file an accounting since the date of his appointment.

“38. The Respondent did not respond in writing to the Show Cause Order and initially failed to appear at the scheduled time of the hearing on December 6, 1996. When contacted by Judge Mason’s law clerk, the Respondent claimed not to have received notice of the hearing, even though a certified mail return receipt showed the notice had been deliver[ed] to the Respondent’s office. The Respondent appeared in court after receiving the phone call from Judge Mason’s law clerk.

“39. Judge Mason continued the show cause hearing to January 10, 1997 and ordered the Respondent to file an accounting by January 6, 1997.

“40. The Respondent did tile a Report of Temporary Guardian on January 6, 1997.

“41. On January 10, 1997, Judge Mason ordered the Respondent to file a supplemental report within 90 days.

“42. The Respondent did not file a supplemental report within 90 days but did file such a report on April 15, 1997.

“43. In December 1996, following the initial show cause hearing, Judge Mason reported the Respondent’s failure to carry out his obligations as guardian of Mr. Lee’s property to Bar Counsel.

“44. In letters dated January 9, 1997 and January 29, 1997, Bar Counsel requested that the Respondent respond in writing to the information reported by Judge Mason. The Respondent did not respond in a timely manner to those letters.

“45. The Respondent responded to Bar Counsel’s inquiries only after the Petitioner’s investigator contacted the respondent by phone on February 14, 1997.

“CONCLUSIONS OF LAW“I. BC Docket No. 97-67-11-8 (complaint of James R. Pyles)
“1. By his acts and omissions in the course of representing James R. Pyles, the Respondent engaged in misconduct as defined in Maryland Rule BV1k (subsequently renumbered as Rule 16-701k) and violated the following Maryland Rules of Professional Conduct:

“Rule 1.1 Competence

* * *

“Rule 1.3 Diligence

* * *

“Rule 1.4 Communication

* * *

“2. By failing to respond in a timely manner to lawful demands for information by Bar Counsel, the Respondent also violated the following Rule of Professional Conduct:

“Rule 8.1 Bar Admission and Disciplinary matters

* * *

“II. BC Docket No. 97-240-11-8 (Kenneth Wayne Lee Guardianship Matter)
“3. By his acts and omissions upon being appointed to serve as Temporary Successor Guardian of the property of Kenneth Wayne Lee, the Respondent engaged in misconduct as defined in Maryland Rule BV1k (subsequently renumbered as Rule 16-701k) and violated the following Maryland Rules of Professional Conduct:

“Rule 1.1 Competence

* * *

“Rule 1.3 Diligence

* * *

“Rule 8.4 Misconduct

* * *

“4. By failing to respond in a timely manner to lawful demands for information by Bar Counsel, the Respondent also violated the following Rule of Professional Conduct:

“Rule 8.1 Bar Admission and Disciplinary Matters. . . .”

Taking no exceptions to the hearing court’s findings of fact and conclusions of law, the petitioner recommends, as a sanction, that the respondent be suspended indefinitely from the practice of law.[8] In support of that recommendation, it submits:

“Standing alone, Respondent’s neglect in failing to file the appeal in the Pyles case and in performing his duties as a guardian warrants a suspension American Bar Association Standards for imposing Lawyer Sanctions (ABA Standards), § 4.42 (b) (1986 1992 Amendments) (Suspension generally appropriate when “a lawyer engages in a pattern of neglect and causes injury or potential injury to a client”). Factoring in Respondent’s initial failure to respond to Bar Counsel’s inquiries, the questionable nature of his response to the Pyles complaint, and his total disregard of the disciplinary charges against him, [justifies the recommendation]. See Attorney Grievance Commission v. David, 331 Md. 317, 628 A.2d 178 (1993) (indefinite suspension imposed where attorney neglected multiple cases, failed to communicate with clients and failed to respond to Bar Counsel’s requests for information).”

The petitioner asks that termination of the indefinite suspension be conditioned upon the respondent having: completed a course on professional responsibility; agreed to participate in, and certify completion of, twelve hours of continuing legal education courses in each of the first two years following his reinstatement; engaged, at his expense, an attorney monitor, acceptable to Bar Counsel, to oversee the respondent’s practice of law for two years and provide Bar Counsel with monthly reports or six months and quarterly reports thereafter; and paid to the petitioner the costs of the proceedings as assessed.

We agree with, and therefore adopt, the petitioner’s recommendation. Accordingly, the respondent is ordered indefinitely suspended from the practice of law, effective thirty days from the date of this opinion.[9]

IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715 (C), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST MYKEL HITSELBERGER.