Monday, May 21, 2018

Typos And Due Process

We recently reported on a matter in which the District of Columbia Board on Professional Responsibility made a federal case out of a typo.

The Maryland Court of Appeals found a hearing judge's typo of no moment

Respondent failed to adequately represent Ms. Yu in both of her personal injury cases. He failed to do the bare minimum in locating and properly serving the defendants in the cases. Respondent failed to inform Ms. Yu that he was having difficulty in locating the defendants, that her cases had been dismissed due to his failure to properly serve the defendants, and that the statute of limitations had run on both of her cases. Respondent’s decision to “duck and cover,” or in other words, ignore, Bar Counsel’s repeated requests for information adversely “impact[s] the image of the legal profession.” See id. We, therefore, sustain Petitioner’s exception and hold that Respondent violated MARPC 19- 308.4(d) by clear and convincing evidence.

Petitioner excepted to the hearing judge’s conclusion that Respondent violated 19- 308.4(b) because Petitioner did not charge Respondent with this violation. It is apparent that the hearing judge’s conclusion that Respondent violated Rule 19-308.4(b) was merely a typographical error. We surmise from the language she used that she intended to conclude that Respondent violated Rule 19-308.4(c), having found that Respondent “intentionally made false statements in his April 7, 2016 letter to Assistant Bar Counsel.”

It is a violation of Rule 19-308.4(c) to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” Respondent attempted to excuse his failure to communicate with Ms. Yu by misrepresenting to Bar Counsel that Ms. Yu was out of the country for extended periods of time and that she could not receive mail during that time. Ms. Yu, whom the hearing judge found to be credible, testified that she was gone no more than four weeks in any given year and that there was always someone at her home to receive her mail. Respondent also intentionally misrepresented that he and Ms. Yu agreed to only communicate in person due to Ms. Yu’s alleged poor command of the English language.

The hearing judge found, however, that Ms. Yu had an adequate command of the English language and that Respondent and Ms. Yu’s conduct did not demonstrate such an agreement to communicate only in person. For example, Ms. Yu called and mailed Respondent letters requesting updates on her cases and Respondent did not respond to her requests either in writing, by phone, or in person. Furthermore, Respondent’s only excuse for his failure to communicate was a claim that he did not have a return address for Ms. Yu, despite the fact that he “he routinely ask[ed] for an update on [Ms. Yu’s] address.” All of Respondent’s intentional misrepresentations clearly demonstrate a violation of Rule 19- 308.4(c). That finding was established by clear and convincing evidence. Therefore, given the charges and the findings of fact it is obvious that the hearing judge intended to conclude that Respondent violated Rule 19-308.4(c).

The court imposed disbarment. 

Too bad that common sense does not travel south. ( Mike Frisch)

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