Friday, August 24, 2012
The Maryland Court of Appeals has imposed a suspension of 60 days in a matter where the atorney failed to appear for trial. The circumstances were hotly disputed and warrant close examination.
The attorney was retained to defend a business and its owner in a civil matter. Trial was scheduled on January 26, 2007 at 8:45 am.
The attorney and opposing counsel reached an "agreement in principle" for settlement the day before the scheduled trial. The settlement called for a series of two payments and a default for the full amount alleged if the payments were not made by the agreed dates. Opposing counsel faxed the agreement to the attorney for signature.
The attorney's client agreed to come to his office to sign off on the agreement the next morning. He was late. The attorney left for court and went to the courtroom, but did not check in with the court clerk (the fatal error). He then left the courtroom and got ahold of the client via cell phone. The client told him that he had signed the agreement and left a check for the first installment. at the attorney's office.
The attorney had missed the call of the case. Opposing counsel had sought and obtained a default judgment when he was in the hall on his cell phone.
The attorney bumped into opposing counsel, who told him the case had been called and concluded. The attorney told opposing counsel that the settlement agreement was executed and asked whether "everything is still in place?" Opposing counsel replied "Yes, just get me the documents."
The attorney did not learn (and opposing counsel did not volunteer) that a default judgment for the full amount had been entered. The attorney did not check on the disposition (another error).
The default came to light when opposing counsel noted an oral examination to collect on the judgment. The parties agreed to vacate the default. The judge (for reasons that are not set forth) denied the motion to vacate. The settlement was nonetheless consummated and the case brought to conclusion.
The judgment did have a negative impact on the client's credit.
As you might expect, the attorney defended bar charges by asserting that opposing counsel had misled him. The trial court essentially credited the accused attorney's version of his interaction with opposing counsel.
The court rejected defenses to the ethics charges based on the conduct of opposing counsel. The court concluded that the attorney violated ethical rules by failing to appear for the trial and learn of the entry of judgment against his client judgment in a timely manner. (Mike Frisch)