Friday, October 20, 2017

Duty To Advise Elderly Client At Issue In Maryland Bar Discipline Matter

The Maryland Court of Appeals has issued its reasons for an order of disbarment entered the day of the oral argument. 

 The attorney had defaulted below

McLaughlin did not appear at the Circuit Court hearing on March 20, 2017. The hearing judge concluded that because McLaughlin had defaulted, all requests for admissions in Bar Counsel’s discovery requests were deemed admitted pursuant to Maryland Rule 2-424(b). The hearing judge issued Findings of Fact and Conclusions of Law, based on the admitted facts, in which he found by clear and convincing evidence that McLaughlin violated MLRPC 1.3, 1.4(a) and (b), 1.5(a), 1.15(a) and (e), 8.1(a) and (b), 8.4(a), (c), and (d), and BP § 10-306. He found multiple aggravating factors and no mitigating factors.

But had appeared before the court

McLaughlin’s failure to participate in the attorney disciplinary proceeding, lack of remorse or awareness, and the nature of the underlying misconduct only underline the propriety of this sanction. See Attorney Grievance Comm’n v. Dunietz, 368 Md. 419, 431 (2002) (“Respondent’s continuing disregard for the Attorney Grievance Process, his apparent indifference to the tenets of his chosen profession, the dereliction of his duties to his client and his ostensible lack of remorse for his misconduct, warrant [disbarment].”). McLaughlin’s eleventh-hour appearance before this Court does not excuse her apathy towards attorney discipline proceedings or her dishonest conduct. We are convinced that disbarment is the appropriate sanction to protect the public and deter future violations of the Rules of Professional Conduct.

The case involves an elderly client and the attorney's role in granting power of attorney to her son. 

There were escrow violations and false responses to Bar Counsel. 

McLaughlin agreed to serve as an escrow agent and hold Ms. Leedom’s funds until Mr. Leedom and Mrs. McCabe could agree how to use them for Ms. Leedom’s benefit. The funds were not deposited as advance fees or a retainer. McLaughlin’s disbursement to Mr. Leedom was inconsistent with the purpose for which the money was entrusted to her. She misappropriated funds when she paid herself $5,175 from those funds without billing her client, or obtaining consent to use the funds for that purpose.

Among the violations are a failure of diligence and communication in excerpted language below that should command the attention of elder attorneys in Maryland 

Our review of the record reveals that McLaughlin was aware that [power of attorney holder] Mr. Leedom had a history of substance abuse before she began representing Ms. Leedom. McLaughlin was aware that Mr. Leedom entered a facility to treat his substance abuse in June of 2014, and interacted with him while he was intoxicated after he had been released from treatment. Mrs. McCabe had contacted McLaughlin in July 2014 regarding her brother’s past and current substance abuse problems, and alleged that he had poor financial management skills. McLaughlin’s September 18 letter lists a series of events between June and December 2014 that should have raised concerns for any reasonable attorney regarding Mr. Leedom’s fitness to serve as his mother’s power of attorney...

The record shows that Ms. Leedom engaged McLaughlin for estate planning, including establishing a power of attorney to manage her financial affairs. McLaughlin was required “when appropriate, to consult with the client about the means to be used to accomplish the client’s objectives.” MLRPC 1.4, cmt. [3]. McLaughlin knew that her 89-year-old client suffered from the early stages of dementia and did not wish to manage her own affairs. Moreover, she learned from a third party—after the instrument was signed—that Mr. Leedom entered a rehabilitation facility for his alcoholism. McLaughlin did not know whether her vulnerable client was aware of this change in circumstances...

When the representation began, both McLaughlin and Ms. Leedom knew of Mr. Leedom’s history of substance abuse problems. Surely, the reoccurrence of Mr. Leedom’s substance abuse problems could affect his ability to manage his mother’s financial affairs under the power of attorney, and could well increase the risk of mismanagement and loss. Under these circumstances, McLaughlin had a duty to communicate with Ms. Leedom about this information. Her failure to discuss this information with Ms. Leedom violated Rule 1.4(a) because she did not keep her client reasonably informed about the matter.

The oral argument video is linked here. 

Comment:

The continuing duties owed to a diminished-capacity client who already has granted power of attorney to a relative is a difficult and nuanced issue faced by Maryland attorneys on a daily basis.

It is unfortunate that the issues are considered here in the context of a default.  (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2017/10/the-maryland-court-of-appeals-has-issued-its-reasons-for-an-order-of-disbarment-entered-the-day-after-oral-argument.html

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