RESPONDENT’S MOTION FOR RECONSIDERATION ON THE MERITS

IN THE COURT OF APPEALS

OF MARYLAND

ATTORNEY GRIEVANCE COMMISSION ) Misc. AG No. 58,

OF MARYLAND ) Sept. Term 2016

Petitioner )

v. )

) Cir. Ct. Prince George’s Co.

ANDREW NDUBISI UCHEOMUMU ) Case No.: CAE17-07944

Respondent )

RESPONDENT’S MOTION FOR RECONSIDERATION ON THE MERITS

E-FILEDCourt of Appeals

Suzanne Johnson,Acting Clerk of Court12/17/2018 11:53 PM

i

TABLE OF CONTENTS

I. INTRODUCTION ........................................................................................................ 1

II. THIS PROCEEDING MUST BE VACATED BECAUSE THE ENTIRE

PROCEEDING WAS TAINTED WITH BRIBERY OR THE APPEARANCE OF

BRIBERY .................................................................................................................... 3

III. RECONSIDERATION REGARDING CONSTITUTIONAL AND LEGAL

EXCEPTIONS ........................................................................................................... 7

IV. RECONSIDERATION REGARDING FACTUAL EXCEPTIONS AND LEGAL

CONCLUSIONS ....................................................................................................... 7

A. The Court Overlooked Martin’s Testimony Regarding December 8th Text

Message (Factual Exception #A.1) and the December 10th Payment (Factual

Exception #A.2), Thus, the Court’s Findings are Clearly Erroneous, Directly

CONTRADICTED By Martin’s Own Sworn Testimony, And Respondent Was

Not Even Charged With Defalcation; hence, any Conclusion that the Respondent

Violated the MLRPC Based upon these Findings Constitute a Violation of His

Due Process Rights. ............................................................................................... 7

1. The December 8th Text Message and Martin’s December 10th Payment: ......... 7

B. The Court Overlooked Martin’s Sworn Testimonies In Findings Regarding The

Respondent’s Made Knowing And Intentional Misrepresentations Regarding

Martin to Order Her Transcript is Contrary to Martin’s Own Sworn

Testimonies. ......................................................................................................... 16

C. The Court Overlooked Martin’s Sworn Testimonies That She Asked The

Respondent to Send Her An Accounting Invoice After Martin’s Termination of

His Services; Thus, Any Finding That The Respondent Billed or Intended to Bill

Martin Above and Beyond the Flat Fee for Additional Legal Services Is Clearly

Erroneous. ............................................................................................................ 18

D. Finding that the Respondent’s Use of the Accounting Statement in Support of

His Position that He Did Not Fail to Maintain Unearned Fees in Escrow Was

Clearly Erroneous. ............................................................................................... 21

1. Respondent’s Use of the Accounting Statement for the Purpose of Supporting

the Respondent’s Exception Was Proper and Supported by the Record, and in

any Event, the Petitioner Had the Burden of Proving the Respondent Had Not

Done the Work as Claimed ............................................................................... 21

2. The Court Overlooked that in any Event, the Fees Paid by Martin, Pursuant to

the AEA, Were Engagement Fees Not Advance Retainers, and therefore, they

Were Earned upon Receipt; as such, Irrespective of the Number of Hours the

Respondent Had Worked on Martin’s Behalf as of the Time the Payments

Were Made, the Respondent Did Not Fail to Place Unearned Fees in Escrow 25

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E. The Court Erred in its Analysis of the Docket Entries from the Martin Custody

Case, which Actually Establish That Martin’s Appeal Was A Nullity and Its

Dismissal Was Not Caused By the Respondent. ................................................. 27

V. CONCLUSSION ........................................................................................................ 32

1

I. INTRODUCTION

Respondent Andrew Ndubisi Ucheomumu (“Respondent”), pro se, pursuant to

Md. Rules 8-605 and/or any other appropriate and applicable rules, hereby files this

Motion for Reconsideration on the Merits,1 because this Honorable Court overlooked

Shannan Martin’s (Ms. Martin) repeated sworn trial testimonies that she DID NOT pay

for the transcripts of her case, that the Respondent NEVER asked her to deposit money

for the transcript, and that ALL her payments to the Respondent were for the legal fees.

Furthermore, this Court erred in its review of the trial Court’s docket entries from

Martin’s case. Finally, it appears that the Court overlooked the Reply Brief Respondent

filed through counsel in this case on October 2, 2018 (hereinafter the “Reply Brief”).2

The Court did not acknowledge in its opinion that the Reply Brief had been filed nor did

it address many of the points raised by Respondent in the Reply Brief. For example, on

pages 12-16 of the Reply Brief, the Respondent explained why due process

considerations would preclude the Court from Concluding the Respondent Committed

1 Citations to the Opinion of this Court, dated November 16, 2018, appear as “Slip Op. at

##” where “##” is the page number in this Court’s opinion. Citations to the trial court’s

Findings of Fact and Conclusions of Law (the “FFCL”) appear as “FFCL at ##” where

“##” is the page number of the cited page. Citations to the transcript of the trial court

proceeding appear as “T-####” where “####” is the Bates-number of the cited transcript

page in the Bates-numbered transcript volume filed by the Respondent in this Court on

July 16, 2018. Citations to the Petitioner’s trial exhibits appear as “Pet. Ex. ##” and

citations to the Respondent’s trial exhibits appear as “Resp. Ex.” where “##” is the

number of the referenced exhibit. Any capitalized terms not otherwise defined herein,

shall have the same meaning as in the Respondent’s previous filings.

2 A copy of the Reply Brief is hereto attached as EXHIBIT 1.

2

any Rule Violations on the Basis of the Findings surrounding the December 8th Text

Message and the December 10th Payment. The Court also appears to have overlooked

that on pages 51-52 of the Reply Brief, the Respondent explained specifically why it was

important to ascertain the precise date on which Martin told the Respondent on the

telephone that she believed her former counsel had the transcripts. Among other things,

the Court also overlooked the arguments on pages 19-20 of the Reply Brief surrounding

this Court’s decision in Atty. Griev. Comm’n. v. Stinson, 428 Md. 147 (2012), and the fact

that the monies paid by Martin were actually engagement fees and not advance retainers,

and therefore, that they had been earned upon receipt.

Under similar circumstances, the District of Columbia Court of Appeals, in

granting a motion for reconsideration and reversing a disbarment order in an attorney

disciplinary proceeding recently said:

“We have not simply ‘changed our mind,’ as our dissenting colleague

suggests. Post at 25. Rather, we have acted upon a recognition that, as

respondent pointed out in her Petition for Panel Rehearing, the original

majority opinion and concurrence, like the Hearing Committee and the

Board on Professional Responsibility (the "Board"), ‘overlooked and

misquoted material [portions of] [r]espondent's testimony.’”

In re Nave, No. 16-BG-633, 2018 D.C. App. LEXIS 469, at *1 n.1 (Nov. 29, 2018)

(emphasis added).3 See also Matter of Luciano, 227 N.J. 157 (2016) (Reversing an order

of disbarment after concluding on reconsideration that there was not clear and convincing

evidence respondent misappropriated money).

3 A copy of the D.C. Court’s opinion in In re Nave is attached hereto as EXHIBIT 2.

3

Even more problematic is the fact that this proceeding was tainted with bribery

or appearance of bribery, and the proceeding must be vacated and to the extent that any

new trial could cure the taint of bribery, an order of a new trial must be issued.

II. THIS PROCEEDING MUST BE VACATED BECAUSE THE ENTIRE

PROCEEDING WAS TAINTED WITH BRIBERY OR THE

APPEARANCE OF BRIBERY

The Court found and the evidence support the fact that Ms. Martin paid

Respondent a total of $6,200. However, before the trial even began, the former Bar

Counsel, Glenn Grossman and the current Assistant Bar Counsel Jennifer Thompson

directed Ms. Martin to file claims with the Maryland Attorney Client Protection Fund

(CPF), and on November 13, 2017, six weeks before the trial, CPF paid Ms. Martin

$6,500, which is $300 more than Ms. Martin’s entire payment to the Respondent. There

is no statutory scheme why Martin should have been paid more than she paid an attorney,

and without the Court finding of defalcation.4 When Respondent requested for a copy

of the check the CPF used in paying Ms. Martin, CPF tried to cover it up by sending

the Respondent a redacted copy of the check and hid the amount actually paid to

Ms. Martin.

4 Respondent was NEVER charged with defalcation in the first place, and he had no

notice to defend. Due Process.

4

CPF’s Attempt to Hide How Much Martin Was Paid.

After a protracted battle, CPF produced the unredacted copy of the check in

exchange for not testifying under oath.5 As it turns out, six weeks before the trial, CPF

actually paid Ms. Martin $6,500 instead of a maximum of $6,200, and Martin signed a

secret agreement to cooperate and testify against the Respondent.

5 Petitioner also opposed the deposition of JaCina Stanton and Glenn Grossman, and the

Court quashed their deposition subpoena. The Petitioner withheld documents relating to

their Communications with CPF and also their Communications with Martin.

5

CPF Paid Martin More Than Martin’s Payment To Ucheomumu.

Ordinarily, CPF does not pay a claimant until after the trial and only if the trial

court found defalcation. As noted above, Respondent was not even charged with

defalcation. Furthermore, CPF NEVER paid anyone else an amount greater than the

amount the complainant claims the attorney stole from them. On its website dealing with

frequently asked questions, CPF categorically states:

https://www.courts.state.md.us/cpf/faq (emphasis added)

From the CPF’s website, it is clear that the maximum amount Martin should have

been paid was $6,200. Instead, and without any statutory authority, CPF

6

inexplicably paid off Martin $6,500 with public funds, six weeks prior to martin

testifying in the case. Furthermore, as a condition of receiving the payment, Martin

signed a cooperation agreement to testify in the case, effectively obligating her to testify

in this case after having been paid off.

The trial Court erred in limiting the Respondent’s inquiry into the circumstances

surrounding the windfall payment to Martin by a state agency with public funds.

Finally, Respondent was not even charged with defalcation, even after the

Petitioner amended its Petition for Disciplinary and/or Remedial Action (Amended

PDRA). This is pure bribery or has the appearance of bribery. CPF in cahoots with

Bar Counsel’s office bribed Ms. Martin before the trial. This case is badly tainted with

bribery or appearance of bribery.

7

III. RECONSIDERATION REGARDING CONSTITUTIONAL AND

LEGAL EXCEPTIONS

This Court erred in not addressing the constitutional and legal exceptions on the

purported notion that it was already dealt with. The Court never issued an opinion

addressing the Constitutional and Legal Exceptions which this Respondent is entitled to.

Thus, Respondent preserves ALL the issues raised in his Constitutional and Legal

issues set forth in his Exceptions and Reply the Petitioner’s Response as if they are fully

set forth herein.

Nevertheless, Respondent is not sure whether the Court lends support to

Petitioner’s withholding of documents, not signing interrogatories under oath as required

by Md. Rule 2-421(b), that the trial court was legally correct with respect to any of the

privilege rulings that the Respondent challenged, or that the trial court was legally correct

on the purported basis that AGC is not a party to this case.

IV. RECONSIDERATION REGARDING FACTUAL EXCEPTIONS

AND LEGAL CONCLUSIONS

A. The Court Overlooked Martin’s Testimony Regarding December 8th Text

Message (Factual Exception #A.1) and the December 10th Payment (Factual

Exception #A.2), Thus, the Court’s Findings are Clearly Erroneous, Directly

CONTRADICTED By Martin’s Own Sworn Testimony, And Respondent Was

Not Even Charged With Defalcation; hence, any Conclusion that the

Respondent Violated the MLRPC Based upon these Findings Constitute a

Violation of His Due Process Rights.

1. The December 8th Text Message and Martin’s December 10th Payment:

The Court was misled into adopting a manufactured contention that was

CLEARLY CONTRARY to Martin’s SWORN testimony. Furthermore, on paper, the

standard of proof in this proceeding is supposed to be “clear and convincing evidence.”

8

Md. Rule 19-727(c). “[T]he term 'clear and convincing' evidence means that the

witnesses to a fact must be found to be credible, and that the facts to which they have

testified are distinctly remembered and the details thereof narrated exactly and in

due order, so as to enable the trier of the facts to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue.” Atty. Griev. Comm'n. v. Harris,

366 Md. 376, 389 (2001) (emphasis added).

The trial court found Martin to be credible. (CITE). However, this Court erred

when it ignored Martin’s distinctively remembered, detailed and repeated testimonies

that she NEVER paid for the transcripts and that the Respondent NEVER EVEN

ASKED her to DEPOSIT any money to pay for the transcripts as follows:

MARTIN’S DIRECT EXAMINATION BY MS. THOMPSON.

[THOMPSON] Q. Did Mr. Ucheomumu ever ask you to, quote, deposit

money to order the transcripts?

[MARTIN] A. No, he did not. As a matter of fact, I asked him

on a couple of different occasions, "What's going on with the

transcript? What's going on with the transcript? What's

going on with the transcript? And what's going on with my

case? What's going on with my appeal?"

T-671:24 and T-672:1-5

January 10, 2018 Trial Transcript at 2-177:24 and 2-178:1-5 (Emphasis supplied).

[MS. THOMPSON] Q. When you paid Mr. Ucheomumu in

November and December of 2014,

did he explain to you for what

purpose he would use those funds?

9

[MS. MARTIN] A. To handle my appeal. That's what I

was informed. That was my

understanding.

[MS. THOMPSON] Q. So Mr. Ucheomumu's claim that

the funds you paid were specifically

for the legal services? Did he ever tell

you that?

[MS. MARTIN] A. His legal services that I hired him

for was to write the appeal, yes. I paid

him to get the appeal done, yes.

Whatever it took to get the appeal done,

that's what it was for.

[MS. THOMPSON] Q. Okay. Understood.

T-676:23-25 and T-677:1-5

January 10, 2018 Trial Transcript at 2-177:24 and 2-178:1-5 (Emphasis supplied).

MARTIN'S CROSS EXAMINATION BY MR. UCHEOMUMU:

[MR. UCHEOMUMU] Q. Can you read this text message?

[MS. MARTIN] A. December 8th?

[MR. UCHEOMUMU] Q. Yes.

T-862:23-25

January 16, 2018 Trial Transcript at II-136:4-23 (Emphasis supplied).

[MS. MARTIN] A. Yes. It says, Shannan, how is your

funding coming? I need to order the

transcript ASAP without any

further delay.

[MR. UCHEOMUMU] A. December 8th?

[MR. UCHEOMUMU] Q. Correct.

10

T-863:1-4


[MR. UCHEOMUMU] Q. Did you pay when I sent you this?

Did you write any check and say for

transcript deposit, ever?

[MS. MARTIN] A. Transcript deposit?

[MR. UCHEOMUMU] Q. Right.

[MS. MARTIN] A. No. I put for legal fees, that's what

it was for.

T-863:11-16


[MR. UCHEOMUMU] Q. Second paragraph, second sentence.

He never -- can you read it into the

record please.

[MS. MARTIN] A. He never even requested a transcript

from the court clerk. If he indicated

that it was my responsibility to

obtain the transcript and that there

was a cost, then I certainly would

have paid it and obtained it.

[MR. UCHEOMUMU] Q. Right. That's it. I asked you for

money on December 8th?

[MS. MARTIN] A. And I paid you on December 10th, I

cut you a check.

[MR. UCHEOMUMU]

[MS. MARTIN]

Q. To catch up on legal fees, that's what

you testified to?

11

A You asked me on the 8th to pay you.

I paid you $3,000 on the 10th. You

never sent me not one email, not

one invoice, not one document

request for, Shannan, this is what

you are supposed to pay for your

transcript. I received that from Ms.

Anukem. I didn't receive that from

you.

T-864:4-23


As Martin’s testimonial evidence under oath clearly show that the text message on

December 8, 2014 and her payment on December 10, 2014 are NOT for ANY

TRANSCRIPT. Hence, the opinion of the trial court as adopted by this Court was devoid

of any testimonial evidence; instead the Courts drew FAULTY inference on the

December 8, 2014 text message to erroneously conclude that Martin’s December 10,

2014 payment was for the transcript when in fact Martin’s own testimony is

CONTRARY to the Court’s findings regarding the December 8, 2014 text message and

Martin’s December 10, 2014 payment.

Furthermore, in her testimony, Martin acknowledged that all her payments were

towards her $10,500 engagement fee agreement as follows:

MARTIN'S CROSS EXAMINATION BY MR. UCHEOMUMU:

[MR. UCHEOMUMU] Q. What did this paragraph said right

here? I'm sorry. Right here. I agree to

pay Ocheomumu Law Group

what? Second paragraph.

[MS. MARTIN] A. The sum of $10,500 for this appeal

with $5,500 do upon signing and I

agree to pay –

12

T-855:23-25 and T-856:1-2.

Tr. Transcript 1/16/2018 at II-129:25 – II-130:1-2

[MR. UCHEOMUMU] Q. Did you pay the $5,500 upon

signing the agreement?

.

[MS. MARTIN] A. No, I was in your living room.

T-856:7-9

Tr. Transcript 1/16/2018 at II-130:7-9

[MR. UCHEOMUMU] Q. You signed the agreement on the

3rd, right?

[MS. MARTIN] A. I signed this on the 3rd.

[MR. UCHEOMUMU] Q. Did you pay $5,500 on the 3rd?

[MS. MARTIN] A. No.

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

.

.

.

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

Q. Okay. How much did you pay on the

3rd?

A. I can take a look. I paid $3,000.

Q. So you are $2,500 behind,

correct, already?

Yes, but remember I had –

And on November 19th you paid

another $200, next page.

Section four?

Yes.

13

It says November 3, $3,000, there

is another, on November 19th, for

$200.

T-857:4-11

Tr. Transcript 1/16/2018 at II-131:4-11, 15-18, & 21-22

[MR. UCHEOMUMU] Q. If you had $3,000 to $200 is how

much, $3,200, correct?

[MS. MARTIN] A. Yes, sir.

[MR. UCHEOMUMU] Q. And you haven't paid up to $5,500,

correct?

[MS. MARTIN] A. That's right.

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

Q. And then you were supposed to pay

$5,500 upon signing, correct?

That's what the retainer says.

A. And $1,000 every month until the

$10,000?

That's what the agreement on paper but

that not what we agreed to verbally.

T-857:24-25 and T-858:1-9.

Tr. Transcript 1/16/2018 at II-131:24-25 – II-132:1-9.

[MR. UCHEOMUMU] Q. Now, in December, did you pay

$1,000?

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

A. For the month of December I paid

you $6,500.

Q. $6,500?

A. $6,200 for the month of December.

A. How much did you pay in

December?

14

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[THE COURT]

I'm sorry, November, December I paid

you $3,000.

Three thousand, so it's $6,200, correct,

in December?

A. By December 10th I paid your

$6,200.

Q. If you pay $5,500 from November,

when you signed the agreement, and

$1,000 in December, wouldn't that be

$6,500?

A. Sir, you said $1,000. I don't see any

increments of $1,000.

Q. Want me to point it to you?

A Okay.

Q Did you sign this agreement that

caused for you to pay $1,000 every

month, starting from December 1; did

you sign that?

A Yes, I did.

Q And it says for you to pay $1,000 on

December 1,

right?

A It says that I'm supposed to pay --

Q -- You did pay --

-- Counsel, if you are going to ask her

the question, let her answer. You can't

start another

question id she hasn't answered yet.

A. It says pay $1,000 a month.

15

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

Q. Nope. It says starting from?

A. Starting from December 1st.

Q. Okay. Did you pay $1,000 on

December 1?

A. No.

Q. So by the time you paid another

money on December 10th, correct?

A. I paid $3,000.

Q. By the time you paid $3,000, you

were already the amount you should

have been paid is $6,500; isn't it

true?

A. According to the retainer agreement,

yes.

Q. So when you paid $6,200, on

December 10th, you are still $300

behind; isn't it true?

A. According to the retainer

agreement, yes.

T-859:11-22; T-860:2-9, 13, 15-25; T-861:1-3.

Tr. Transcript 1/16/2018 at II-133:11-22; II-134:2-9, 13, 15-25; II-135:1-3.

Martin’s testimony could not have been clearer that she NEVER paid for any

transcript at anytime during the time of her representation, and the Court’s inference that

Martin’s payment on December 10, 2014 was for the transcript is plainly CONTRARY to

Martin’s testimony under oath.

Furthermore, this Court’s finding that Respondent Requested for Martin to deposit

money for the transcript on December 8, 2014 and that Martin Paid the Respondent

16

$3,000 for the transcript is DIRECTLY CONTRADICTED by the Petitioner’s pleadings

and discovery answers. See Resp. Ex. 37 (Pet. Resp. to First Interrogs.) at 8 (Ans. to Int.

No. 15) (“Respondent never communicated with Ms. Martin about ordering the

transcripts or requested from her funds so that he could obtain the transcripts”)

(emphasis added); See Pet. Supp. Resp. to First Interrogs.) at 3 (Supp. Ans. to Int. No. 16)

(Admitting that all of the $6,200 paid by Martin to Respondent was for legal fees to

handle her case); Resp. Ex. 37 (Pet. Resp. to First Interrogs.) at 11 (Ans. to Int. No. 23)

(Admitting that Martin paid the Respondent $6,200 for the legal fees).

B. The Court Overlooked Martin’s Sworn Testimonies In Findings Regarding The

Respondent’s Made Knowing And Intentional Misrepresentations Regarding

Martin to Order Her Transcript is Contrary to Martin’s Own Sworn

Testimonies.

The following findings are based on the Court’s erroneous inference that Martin

paid for transcript on December 10, 2014:

• The Finding that the Respondent Made Knowing and Intentional

Misrepresentations to COSA in the Motion for Extension


Misrepresentations to Bar Counsel


Misrepresentations to Martin

These finding are clearly erroneous and CONTRARY to Martin’s own sworn

testimony that she was not asked, and that she did NOT pay for any transcript. See

section III(A) herein above. Martin further testified under oath that ALL her payments to

17

the Respondent were for legal services. Id. Therefore, these findings are in error and

must be vacated, as a matter of fact and law.

In Any Event, Due Process Considerations Preclude the Court from Concluding

the Respondent Committed Any Rule Violations on the Basis of the Findings at Issue

herein, because the Respondent Was Not Charged with Any Rule Violations on Such

Basis and the Petitioner Cannot Amend the Charges in a Manner that Alters the

“Character of the Offense” after the Trial is Over. See C.f., Sheppard v. Rees, 909 F.2d

1234, 1237 (9th Cir. 1990) (citing Strickland v. Washington, 466 U.S. 668) (1984)

(internal quotation marks omitted). (“Here, the [Petitioner] ambushed the [Respondent]

with a new theory of culpability after the evidence was already in…this new theory…was

neither subject to adversarial testing, nor defined in advance of the proceeding”).

Attorney disciplinary cases are “adversary proceedings of a quasi-criminal nature.”

In re Ruffalo, 390 U.S. 544, 550-51 (1968) (emphasis added). Defendants in grievance

proceedings are “entitled to the basic elements of due process – notice and the

opportunity to defend in a full and fair hearing.” Atty. Griev. Comm’n. v. Stewart, 285

Md. 251, 259 (1979). Hearings must be held “at a meaningful time and in a meaningful

manner.” Matthews v. Eldridge, 424 U.S. 319, 333 (1976). “A hearing is not meaningful

if a [defendant] is given inadequate information about the basis of the charges against

him." Taylor v. Rodriguez, 238 F.3d 188, 193 (2d. Cir. 2001). For a hearing to be

meaningful, “the charge must be known before the proceedings commence.” Ruffalo,

390 U.S. at 550-51 (emphasis added). “[A]bsence of fair notice as to the reach of the

grievance procedure and the precise nature of the charges deprive [the accused] of

18

procedural due process.” Atty. Griev. Comm’n. v. Costanzo, 432 Md. 233, 256 (2013)

(citing Ruffalo, 390 U.S. at 551).

C. The Court Overlooked Martin’s Sworn Testimonies That She Asked The

Respondent to Send Her An Accounting Invoice After Martin’s Termination of

His Services; Thus, Any Finding That The Respondent Billed or Intended to Bill

Martin Above and Beyond the Flat Fee for Additional Legal Services Was

Clearly Erroneous.6

Martin testified under oath that she requested the Respondent to provide

accounting statements that documented the time he had spent working on her behalf.

[MS. THOMPSON] Q. I direct your attention to -- well, let

me back up. Before Mr. Ucheomumu

had sent you the invoice attached to

Exhibit 19, had he ever sent you an

invoice before?

[MS. MARTIN] A. No. I requested an invoice from

him when I terminated his services,

and I had to ask him a couple of times

to produce it, and I finally received it.

See T-661:20-22.

Tr. Transcript 1/10/2018 at 2-167:20-22 (emphasis supplied).

6 This section is intended to cover each of the following findings by the trial court as

adopted by this Court and any variations or permutations thereof: (1) That Respondent

billed Martin $10,944.50 after termination of his services (FFCL at 19); (2) That

Respondent submitted an accounting to Ms. Martin which indicated she owed him over

$6,000.00 for his legal services (FFCL at 7); (3) That Respondent generated an invoice

based upon a fee formula not in the Attorney Engagement Agreement (FFCL at 31); (4)

That Respondent failed to inform Martin about additional hourly costs of legal services

outside of the $10,500 flat fee outlined in the Attorney Engagement Agreement (FFCL at

18); (5) That Respondent used retainer agreement payments for other additional legal

services he was rendering instead of for the appeal, as the retainer agreement stated

(FFCL at 5); and (6) That Respondent never explained to Ms. Martin that the fees she

paid were not being applied toward her transcript order, but were instead being used to

cover the cost of the other legal services he performed (FFCL at 9).

19

The accounting statements used a modest rate ($295/hr.) to assess the value of the

services the Respondent had rendered to Martin. Martin testified and it is undisputed that

the accounting statements were not bills that sought to collect money from her.

[MR. UCHEOMUMU]

[MS. MARTIN]

[THE COURT]

[MS. MARTIN]

Q. Do you have any document asking

you to pay for that invoice ever?

A. I asked for an invoice. This is what

you gave me.

His question is do you have

document asking to pay?

A. No.

T-937:1-8. 7


It is further undisputed that the Respondent never demanded nor sought any

payment from Martin in connection with the accounting statements. Id. Indeed, the

accounting statements were provided together with an offer for a refund of $1,200.00.

[MR. UCHEOMUMU]

[MS. MARTIN]

[MR. UCHEOMUMU]

[MS. MARTIN]

[MS. THOMPSON]

[MR. UCHEOMUMU]

[MR. UCHEOMUMU]

[MS. MARTIN]

Q. Exhibit 24, see that email right there.

A. Yes.

Q. Wasn't that email dates March 30th?

A. Yes.

Which exhibit, Mr. Ocheomumu?

Exhibit 24.

Q. Again, it asks you that the offered

you again $1,200, correct?

A. Yes.

7 Respondent further notes that there was no averment in the Amended PDRA that the

Respondent generated an invoice based upon a fee formula that was not in the AEA.

20

T-937:3-12.


In sum, the Respondent never provided Martin services separate and apart from

those that the parties believed were covered by the flat fee engagement agreement, and he

never intended to charge Martin fees, above and beyond the $10,500.00 for any of the

services provided. It was only because the representation was terminated early, and the

Respondent had to use a lodestar approach to prepare the requested accounting, that this

became an issue.8

Irrespective of whether or not Martin colloquially referred to the accounting

statement (which she had requested)9 as a “billing invoice,”10 given her own

uncontroverted testimony that the Respondent was not seeking to collect money by

sending her the accounting statement,11 and given the Court’s own finding in footnote 2

on page 20 of the Opinion that “there [is no] evidence of the Respondent attempting to

8 Note this case presents the converse of the situation that occurred in Atty. Griev.

Comm’n. v. Lang, 2018 Md. 446 at *66-67 (2018) in which two attorneys were faulted by

the Petitioner and this Court for failing to provide an accounting of hours spent on

services performed following the early termination of a flat-fee representation.

9 T-661:20-22.

10 See Heller v. National Marine Bank, 89 Md. 602, 611 (1899) (“To call a thing a

wrong name does not change its nature… Nothing is more common in the

construction of statutes and contracts than for the Court to correct such self-evident

misnomers by supplying the proper words”) (emphasis added). Here, the term “billing

invoice” is the wrong word. The document was merely an accounting statement that

informed Martin about the value of the work that had been performed on her behalf.

Recall also that the accounting statement was sent to Martin with an offer of a $1,200

refund of the monies she had paid the Respondent.

11 T-937:1-8.

21

collect any additional funds from Ms. Martin subsequent to receiving [the] payments

totaling $6,200.00,” then this Court’s finding is clearly erroneous, and CONTRARY to

Martin’s own testimonies under oath.

D. Finding that the Respondent’s Use of the Accounting Statement in Support of

His Position that He Did Not Fail to Maintain Unearned Fees in Escrow Was

Clearly Erroneous.

1. Respondent’s Use of the Accounting Statement for the Purpose of Supporting

the Respondent’s Exception Was Proper and Supported by the Record, and in

any Event, the Petitioner Had the Burden of Proving the Respondent Had Not

Done the Work as Claimed

The Petitioner introduced the accounting statement into evidence without

qualification or limitation. T-684:21-685:10. It is highly notable that at no time during the

proceeding did the Petitioner state that it was taking issue with any of the entries in the

accounting statement. In fact, Petitioner’s own investigator, Mr. Richard Lisko testified

as follows:

[MR. UCHEOMUMU]

[MR. LISKO]

[MR. UCHEOMUMU]

[MR. LISKO]

[MR. UCHEOMUMU]

[MR. LISKO]

[MR. UCHEOMUMU]

Q. When you prepared this memo, all

the conversations were fresh in your

mind?

A. Correct.

Q. Did you take notes when you were

interviewing Jennifer Anukem?

A. I did.

Q. Is there any statement in this memo

that you prepared that is false?

A. I'm sorry?

Q. Is there any statement in this memo

that you prepared that is false?

22

[MR. LISKO]

[MR. UCHEOMUMU]

[MR. LISKO]

A. No, sir.

Q. So all the statements are accurately

recorded? All the statements in this

memo are accurately recorded as

was conveyed to you by Ms. Anukem?

A. Correct.

T-0980:22 – T0981:12

Tr. Transcript 1/17/2018 at 3-6:22 – 3-7:12.

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

Q. I'm going to give you what has been

marked as Respondents Exhibit 34.

And please read that letter.

(Paused.)

A. Okay.

Q. Does that accurately reflect the

discussion you had with Mr. Lisko?

A. I haven't seen this document before.

Q. Did you speak to an investigator

called Mr. Lisko for the bar counsel?

A. I spoke with an investigator, but I

don't recall what his name is.

Q. But you spoke with an investigator,

correct?

A. I did.

Q. What was the subject of the

investigator that you spoke to?

A. What was the subject?

Q. Correct.

A. He called to inquire about I believe

it was a case that I had handled or may

have still been handling at that time.

23

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

Q. Would that case be about - do you

recall the case?

A. I do.

Q. What was that case?

A. The client was Ms. Shannon Martin.

T-0998:1-25

Tr. Transcript 1/17/2018 at 3-24:1-25.

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

[MS. ANUKEM]

[MR. UCHEOMUMU]

Q. But this statement accurately depicts

what yousaid to Mr. Lisko?

A. At the time, most likely, yes.

Q. What about the second statement in

the second paragraph?

(Paused.)

Q. Do you recall that statement?

A. Yes.

Q. Did you make that statement to Mr.

Lisko?

A. Yes. I believe I made that statement,

based on my review of this invoice. The

invoice looked like you were talking to

opposing counsel and to the client.

Q. Ms. Anukem, is there anything in

that document that you believe you did

not say to the investigator?

A. Nothing in here looks inaccurate.

I move to admit Exhibit 34, Your

Honor.

T-1026:13-25

Tr. Transcript 1/17/2018 at 3-52:13-25.

24

[COURT] It is relevant because she's saying

he took her money. That's in Exhibit

25. And here she's saying she got the

information from him. His invoice says

he did some work.

T-1028:1-4.

Tr. Transcript 1/17/2018 at 3-54:1-4.

The Court admitted Respondent’s Exhibit 34 which was the Bar Counsel’s Investigator

Report attached hereto as EXHIBIT 3. This document speaks for itself, and clearly

showed that even the Bar Counsel’s own investigator found that the Respondent did the

work and spent the hours that were accounted for in Martin’s Accounting Invoice. The

trial Court’s own findings was clearly overlooked by this Court that Respondent

DID NOT take Martin’s money and that Respondent DID the work. See T-1028:1-4;

Tr. Transcript 1/17/2018 at 3-54:1-4.

Furthermore, Petitioner did not prove, and the Court did not find, that any of the

entries in the accounting statement were inaccurate. As such, Respondent’s use of the

accounting statement in supporting his contention that, as of the time that Martin paid

him, he had all earned the fees, was proper.

In any event, the Petitioner’s contentions that there was no evidence in the record

to corroborate the entries in the accounting statement was not correct. Many of the

entries in the accounting statement could be corroborated by the email communications,

text messages and other documents in the record. Furthermore, Martin testified that she

had had some 50 conversations with the Respondent and she corroborated the fact that

the Respondent had negotiated with the opposing party on her behalf. Finally, Martin’s

25

successor counsel, Anukem, based upon her own independent assessment of the

accounting statement and the records in the case concluded that the Respondent’s

accounting statement was legitimate, something that was even documented by the

Petitioner’s own investigator, Richard Lisko. Id.

2. The Court Overlooked that in any Event, the Fees Paid by Martin, Pursuant to

the AEA, Were Engagement Fees Not Advance Retainers, and therefore, they

Were Earned upon Receipt; as such, Irrespective of the Number of Hours the

Respondent Had Worked on Martin’s Behalf as of the Time the Payments

Were Made, the Respondent Did Not Fail to Place Unearned Fees in Escrow

Notwithstanding the number of hours the Respondent spent working on behalf of

Martin and that the Petitioner alleges the Respondent did not prove that he actually spent

all of the time noted in the accounting statements (and thus should not rely on the

accounting statement to establish that he is not guilty of failing to deposit unearned fees

to an escrow account), any finding that the Respondent failed to deposit unearned fees to

escrow is clearly erroneous in any event because, under the terms of the AEA, all of the

fees paid to the Respondent were part of an engagement fee that were earned upon

receipt.

An engagement fee is a sum of money paid by a client to secure an attorney’s

availability over a period of time. Atty. Griev. Comm’n. v. Stinson, 428 Md. 147, 181

(2012). “[Such fee] is generally considered [to be] earned upon receipt or non-

refundable.” Id. (quoting Atty. Griev. Comm’n. v. Kreamer, 404 Md. 282 (2008)). “An

engagement fee could be utilized by an attorney if she or he performs a service or

provides a benefit to the client in exchange for the fee.” Stinson, 428 Md. at 181

(quoting In re Sather, 3 P.3d 403, 411 (Colo. 2000) (en banc). “[S]everal benefits the

26

attorney could provide for a client in exchange for the fee, including: agreeing to take

the client's case, making the client's case a priority over other work, or by agreeing

not to represent an opposing party.” Id. An engagement fee is considered reasonable “if

it bears a reasonable relationship to the income the lawyer sacrifices or expense the

lawyer incurs by accepting it, including such costs as turning away other clients.”

Stinson, 482 Md. at 182 (quoting Restatement (Third) of the Law Governing Lawyers

§34 cmt. e).

Here, the AEA clearly provided that the legal fees payable to the Respondent by

Martin were in consideration of his “reserving time for the appeal [noted therein], and

turning away other clients to devote time to [Martin’s] case.” Pet. Ex. 3. The AEA

further provided that because of this, such fee was non-refundable (except under certain

circumstances enumerated in the AEA) and that it could be deposited into a general

operating account rather than an attorney trust account. Id. Because it was understood

under the AEA that the fees that were paid by Martin were for the purpose of securing the

Respondent’s availability for her case, something that would require him to turn away

other clients in order to prioritize Martin’s work, and because it was understood that the

fees paid would generally be non-refundable (except under certain circumstances

enumerated in the AEA), such fees were clearly an engagement fee that were earned as of

the time they were received, irrespective of the number of hours the Respondent had

spent already working on Martin’s behalf prior to the time such fees were paid. As such,

any finding that the Respondent failed to place unearned fees in a trust account is clearly

27

erroneous, irrespective of whether the Respondent proved that he completed all the work

shown in the accounting statement or not.

E. The Court Erred in its Analysis of the Docket Entries from the Martin Custody

Case, which Actually Establish That Martin’s Appeal Was A Nullity and Its

Dismissal Was Not Caused By the Respondent.

This Court erred in its conclusion that the appellate court proceeding at issue was

not a nullity and that the Respondent caused its dismissal. Proper resolution of this issue

is not only necessary because it is relevant to issues such as mitigation and the

appropriate sanction in this case,12 but also because it would be highly-prejudicial to

Martin for this Court to improperly conclude that she no longer has a right of

appeal, when all the relevant legal authorities on the subject suggest otherwise. A

timeline of key events related to the entry of the custody order at issue appears in the

picture below.13

12 See Atty. Griev. Comm’n. v. Adams, 441 Md. 590, 613 (2015) (“This Court does not

have a bright line rule for determining the appropriate sanction when an attorney

fails to timely file papers for a client, or how long of a delay is required to warrant a

certain type of discipline. We instead continue to analyze an attorney's failure to file

paperwork on a case-by-case basis and, in determining the proper sanction, we

continue to weigh heavily the harm done to the client…”) (emphasis added). In this

case, the harm done to Martin by the Respondent’s failure to order and file transcripts

was relatively minimal because the appellate proceeding was a nullity.

13 A full-sized version of the diagram appears in EXHIBIT 4.

28

As the Court properly observed from Respondent’s Exhibit 2, which was a copy of

the docket entries from the Martin Custody Case, there is an entry dated July 24, 2014

reflecting the Court’s oral ruling to award custody to McBride (Docket No. 79). In its

oral ruling, the Court espoused an intention to issue a subsequent written order, and

therefore, the oral ruling itself could not constitute a final judgment. Davis v. Davis,

335 Md. 699, 712 (1994). On July 31, 2014, the Court signed a written order (the “July

31st Custody Order”), which, as the Court properly recognized, became a final

judgment on October 3, 2014, upon being docketed by the Clerk. Woodfield v. W.

River Improv. Ass’n., 395 Md. 377, 391 (2006) (“[A] judgment is not effective until

docketed by the clerk”) (Emphasis added); Davis v. Davis, 335 Md. 699, 710 (Two acts

are required for there to be a final judgment: rendition of the judgment by the Court and

entry of the judgment by the clerk); Rohrbeck v. Rohrbeck, 318 Md. 28, 41 (1989)

(Unless docketed by the Clerk, a judgment cannot become final).

29

THIS COURT ERRED IN OVERLOOKING the fact that the July 31st

Custody Order was IMMEDIATELY DIVESTED OF ITS FINALITY by the Md.

Rule 2-534 Motion to Alter or Amend, which had been filed on September 22, 2014,

and which by operation of Md. Rule 2-534, was deemed filed on the same day, but

immediately after the entry of the July 31st Custody Order on the docket. See Md. Rule

2-534 (“A motion to alter or amend a judgment filed after the announcement or

signing by the trial court of a judgment but before entry of the judgment on the

docket shall be treated as filed on the same day as, but after, the entry on the

docket”) (emphasis added); Unnamed Atty. v. Atty. Griev. Comm’n., 303 Md. 473, 486

(1985) (“[W]hen a motion to alter or amend an otherwise final judgment is filed

within ten days after the judgment's entry, the judgment loses its finality for

purposes of appeal”) (emphasis added).

Because the filing of the Md. Rule 2-534 motion divested the July 31st Custody

Order of its finality, the appellate courts could not have had jurisdiction over the case

until the Md. Rule 2-534 motion was finally resolved (either by being withdrawn or ruled

upon by the Clerk). Contrary to the Court’s conclusion in the opinion, a docket entry

resolving a Md. Rule 2-534 motion is required to effectuate a new final judgment and

make a case ripe for appeal. See Rohrbeck, 318 Md. at 41.14

14 The Court observed that there is a notation on the docket report of the Custody Case

that it was “closed” on October 3, 2014. See Slip Op. at 17. The entry is clearly the

product of the July 31st Custody Order having directed that “[the] case be closed

statistically…” The administrate closing of the case statistically is of no legal

significance and does not weigh into the equation as to whether the July 31st Custody

Order was a final judgment when entered on October 3, 2014 and/or whether it was

30

Pursuant to this Court’s decision in Edsall v. Anne Arundel County, 332 Md. 502,

506 (1993) and its progeny, processing of a notice of appeal is delayed until the trial

court finally resolves the Md. Rule 2-534 motion. Young v. Mayor & Balt. City, 2015

Md. App. LEXIS 408 at *14-15 (2015) (citing Edsall, 332 Md. at 506) (“[A]lthough

Young filed his notice of appeal before the court granted his request to withdraw his

motion to alter or amend, the Court of Appeals has held that a notice of appeal filed

"during the pendency" of a post-judgment motion under Rule 2-534 will not lose its

efficacy. Instead, the effect of that notice of appeal will be delayed until the trial

court rules on the pending motion.”) (emphasis added and internal citation omitted).

Waters v. Whiting, 113 Md. App. 464 (1997) (citing Edsall, 332 Md. at 508) (“Although

the notice of appeal was premature at the time of filing, a notice of appeal filed prior

to the withdrawal or disposition of a timely filed motion under Rule 2-532, 2-533, or

2-534, is effective. Processing of that appeal is delayed until the withdrawal or

disposition of the motion…”) (emphasis added). Pursuant to Md. Rule 8-202, a notice

of appeal filed prior to the resolution of a Md. Rule 2-534 motion is deemed filed on

divested of its finality by the Md. Rule 2-534 Motion to Alter or Amend. See e.g., Penn-

Am. Ins. Co. v. Mapp, 521 F.3d 290, 295 (4th Cir. 2008) (quoting Penn W. Assocs. Inc. v.

Cohen, 371 F.3d 118, 128 (3d Cir.2004)) (“[A]n order merely directing that a case be

marked closed constitutes an administrative closing that has no legal consequence

other than to remove that case from the district court's active docket”) (emphasis added);

Id. (“Put simply, an otherwise nonfinal order does not become final because the

district court administratively closed the case after issuing the order”) (emphasis

added).

31

the same day, but immediately after the entry of a notice withdrawing the motion or

an order disposing of it.

Here, the Md. Rule 2-534 motion has never been withdrawn or finally resolved by

the trial court. Rather, it remains pending to this day, and as such, no final judgment yet

exists with respect to the custody order. Appellate jurisdiction, as to the July 31st

Custody Order, could not lie until such time as the motion to alter or amend was resolved

and there was a new final judgment. See e.g., Sisk v. Friendship Packers, 326 Md. 152

(1992) (Where judgment was not final, there was no appellate jurisdiction).

Because appellate jurisdiction did not lie in the appellate court proceeding at

issue, the Order to Proceed, dated November 21, 2014, and all subsequent orders issued

by the appellate court thereafter in the proceeding at issue (including the order purporting

to dismiss the appeal) were, in fact, nullities. Lane v. State, 348 Md. 272, 278 (1997)

(“[A] judgment entered on a matter over which the court had no subject matter

jurisdiction is a nullity and, when the jurisdictional deficiency comes to light in

either an appeal or a collateral attack on the judgment, ought to be declared so”)

(emphasis added); Thomas v. Hardisty, 217 Md. 523, 536 (1958) (“[L]ack of jurisdiction

over either the parties to a suit or the subject matter thereof renders a judgment or decree

a nullity and that a judgment or decree rendered where jurisdiction is wanting is open to

collateral attack”); Cook v. Alexandria Nat’l. Bank, 263 Md. 147 (1971) (“All

proceedings founded on the void judgment are themselves regarded as invalid and

ineffective for any purpose”); In re T.R.P., 360 N.C. 588, 590 (2006) (“A universal

principle as old as the law is that the proceedings of a court without jurisdiction of

the subject matter are a nullity") (emphasis added) ; Virginian-Pilot Media Cos. , LLC v.

Dow Jones & Co., 280 Va. 464, 469 (20 I 0) ("A court's orders, entered in a case over

which it has no subject matter jurisdiction, are absolute nullities . ... ") (emphasis

added).

Because the appellate court proceeding at issue was a nullity, as a matter of law,

the Respondent could not have caused its dismissal. Indeed, Martin still retains her right

of appeal to this day. She need only seek to have the Court finally resolve her Motion to

Alter or Amend, and her Notice of Appeal may be properly reprocessed immediately

thereafter. For these reasons, the Respondent asks this Court to reconsider its ruling

regarding the Respondent's exception as to the Edsall issue.

V. CONCLUSSION

This order of this case must be vacated as the Court clearly overlooked and

misquoted Witnesses sworn testimonies that are CLEARLY contrary to the Court's

findings and conclusions of law.

DATED: DECEMBER 17, 2018

32

rew dub1si Ucheomumu 145 Fleet Street, # 133 Oxon Hill, Maryland 20745 (202) 351-1761 (t) [email protected] Respondent

CERTIFICATE OF SERVICE

1 HEREBY CERTIFY on this 17111 day of December, 2018, a copy of the foregoing was served, via MDEC, on all counsel of record.

And

CERTIFICATION PURSUANT TO RULE 20-201

I HEREBY CERTIFY on this 171h day of December, 2018, that the foregoing document does not contain any restricted information in ace rdance with Md. Rule 20-20 l

Font: Times New Roman 13 pt.

33

EXHIBIT 1



IN THE COURT OF APPEALS OF MARYLAND

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

) ) ) ) ) )

)

Misc. AG No. 58, Sept. Term 2016

Petitioner V.

ANDREW NDUBISI UCHEOMUMU Respondent

Cir. Ct. Prince George's Co. Case No.: CAE17-07944

RESPONDENT'S RESPONSE TO THE PETITIONER'S REPLY TO RESPONDENT'S EXCEPTIONS

TO THE HEARING JUDGE'S FINDINGS OF FACT AND CONCLUSIONS OF LAW AND

RECOMMENDATION FOR DISPOSITION*

*Note: On September 28, 2018, the Petitioner filed a document styled as a "Reply" in response to the Respondent's Exceptions to the Hearing Judge Findings of Fact and Conclusions of Law (the "Exceptions") filed by on September 6, 2018. Technically speaking, Petitioner's filing should have been labeled as a "Response" because it was intended as an immediate response and/or opposition to Exceptions. Likewise, this document, which addresses Petitioner's September 28th filing should be styled as a "Reply" because it is being filed in further support of the Exceptions. In order to avoid any confusion, due to the Petitioner's choice of labeling, the Respondent has styled this filing as a "Response" to the "Petitioner's Reply." Herein, the term "fumly" refers to the document filed by the Petitioner on September 28, 2018.


Bessie Decker10/2/2018 8:09 AM

TABLE OF CONTENTS

I. RESPONSE REGARDING CONSTITUTIONAL AND LEGAL EXCEPTIONS ............... .3

II. RESPONSE REGARDING FACTUAL EXCEPTIONS ... ..... ............................................... .4

A. Unchallenged and Indirectly-Challenged Factual Exceptions ... ........... ............ ................ 4

B. The Petitioner's Reply Confirms that the Findings Regarding the December 8th Text Message (Factual Exception #A. l) and the December 10th Payment (Factual Exception #A.2) are Clearly Erroneous, and In any Event, any Conclusion that the Respondent Violated the MLRPC Based upon these Findings Would Constitute a Violation of His Due Process Rights ........................................... ........................ ............................. ...... ..... 5

1. The December 8th Text Message .......................................... ................. ................. ...... 5

2. The December 10th Payment .............. ............................. ................ ....... ....................... 8

3. In Any Event, Due Process Considerations Preclude the Court from Concluding the Respondent Committed Any Rule Violations on the Basis of the Findings at Issue in Factual Exception #A. I and #A.2 Because the Respondent Was Not Charged with Any Rule Violations on Such Basis and the Petitioner Cannot Amend the Charges in a Manner that Alters the "Character of the Offense" after the Trial is Over .......... 12

C. Petitioner's Attempted Mischaracterization of the Respondent's Accounting Statement as a "Billing Invoice" Provides No Basis for Overruling the Respondent's Exception #A.3 ........ ........................................................................... ................... ........... ................ 16

D. Petitioner's Argument Regarding the Respondent's Use of the Accounting Statement in Support of His Position that He Did Not Fail to Maintain Unearned Fees in Escrow Provides No Basis for Overruling the Respondent's Exception #A.4 ........... ....... .......... 18

1. Respondent's Use of the Accounting Statement for the Purpose of Supporting the Respondent's Exception Was Proper and Supported by the Record, and in any Event, the Petitioner Had the Burden of Proving the Respondent Had Not Done the Work as Claimed ............................................ .............. .. ...... ..... ...... .. ............ ............................ 18

2. In any Event, the Fees Paid by Martin, Pursuant to the AEA, Were Engagement Fees Not Advance Retainers, and therefore, they Were Earned upon Receipt; as such, Irrespective of the Number of Hours the Respondent Had Worked on Martin's Behalf as of the Time the Payments Were Made, the Respondent Did Not Fail to Place Unearned Fees in Escrow ..... ..................... ............................................ ........... ........... 19

E. The Respondent's Factual Exception #A.7 Regarding the Finding that Respondent Caused the Dismissal of Martin's Appeal Should be Sustained .............. ..... ...... ............ 21

F. The Respondent's Exception #B. l Should Be Sustained .... ............... ... ...... ............ ........... 23

III. RESPONSE REGARDING EXCEPTIONS to CONCLUSIONS OF LAW AS TO ALLEGED MLRPC VIOLATIONS ................................. ... ................ .. ......... .. ..... ...... ...... 24

A. Rule l.l ............................ ....... .. ........................... ....... ..... ...... .................. ........... ............ 25

B. Rule l.2(a) ...... .............. ............................. ........... .......... .............. ............ ................. ..... . 27

C. Rule 1.3 ........................ ............. ........ ............ ....... ............ .... ........ ............ ..................... .. 30

1

D. Rule 1 .4. r••··· ..... . . . ..... .. .... ......... .......... ~ ......... ... ... ......... . ........ ...... .... ..... .................. .. . ....... ....... .... ........ . 32

E. Rule 1.5 ................................ ............................................................................ ...................... ., ........ .......... 34•

F. Rule J .8(h) ............................. ............ ... ......... ... .. .......... ............ ........................ ..... ......... . 38

G. Rule 1.1 5 .......................... ................................... ..................................... ....................... ......... .... ......... .. .... ....... .. 39

H. Rule l . l 6( d) .. .......... ........................ ................... ............................................................. 41

I. Rule 3.3{a) ...... ................... .......... .............. ...................... ............ ....................................... 43

J. Rule 8.1 (a) ......................... ............................ ...... .... ..... .. ... ... ............. ..................... ........... .. .. .............. .... ... -44 K. Rule 8.4 ............................... ...................... .. ............ ............ .................................... ........ 45

1. Rule 8.4( d) .... ........................... ............. ............. .... .... ........ .... ...... .......................... .. .......................... ..... .... ...... 45

2. Rule .8 .. 4(-c) . .... .... ..... .. ...... ........ ..... ~ ........ ............. ....... .. .... ...... ... ...... ............................ .. ............... ............ 4,7

3. Rule 8.4(a) ....................................................................... ............................................ 48

L. Aggravating Factors ............................................................ ............ ................................ 49

M. Mitigating Factors ...... ......... ....... ..... .......... .. ............ ........................................................ 49

IV. RESPONSE REGARDING RECOMMENDATION FOR DISPOSITION AND REQUEST FOR REMAND ............................................................................................... 50

2

Respondent Andrew Ndubisi Ucheomumu ("Respondent"), prose, pursuant to Md.

Rules 19-728 and/or any other appropriate and applicable rules, hereby files this Response to

Petitioner's Reply to Respondent's Exceptions to the Hearing Judge's Findings of Fact and

Conclusions of Law and Recommendation for Disposition. 1

I. RESPONSE REGARDING CONSTITUTIONAL AND LEGAL EXCEPTIONS

In the Response, Petitioner offers no argument or opposition to the Respondent's

Constitutional and Legal Exceptions, but instead, incorrectly states that "those challenges have

been considered and denied by this Court on several occasions." See Response at 1, n. 1.

Contrary to Petitioner's assertion, the challenges raised by the Respondent's Constitutional and

Legal Exceptions have not yet been denied or even addressed on their merits by this Court on a

single occasion. Rather, Petitioner misreads this Court's August 23, 2018 denial of the Motion

to Compel and Motion to Unseal as resolving the issues raised by Respondent.2 In denying those

motions, the Court did not resolve or overrule the Respondent's exceptions, which served as the

basis for the motions.3 The Court merely decided that (1) it was not going to compel the

1 As in the Exceptions, citations to the Findings of Fact and Conclusions of Law (the "Opinion") appear as "Op. at ##" where "##" is the page number of the cited page. Citations to the transcript of the trial court proceeding appear as "T-####" where "####" is the Bates-number of the cited transcript page in the Bates-numbered transcript volume filed by the Respondent in this Court on July 16, 2018. Citations to the Petitioner's trial exhibits appear as "Pet. Ex.##" and citations to the Respondent's exhibits appear "Resp. Ex." where"##" is the number of the referenced exhibit. Any capitalized terms not otherwise defined herein, shall have the same meaning as defined in the Exceptions.

2 The Motion to Compel and Motion to Unseal were relatively narrow and did not raise all the issues presented by the Respondent's Constitutional and Legal Exceptions.

3 The denial of the Motion to Compel and Motion to Unseal did not equate to a determination by this Court that the Respondent was legally incorrect with respect to the privilege and constitutional issues that served as the basis for the motions.

3

Petitioner to produce any documents at this juncture of the proceeding; and (2) that it was not

going to unseal any documents ordered seal by the trial court at the present time.

Next, Petitioner asserts that, to the extent that any response to the Respondent's

Constitutional and Legal Exceptions is required that it incorporates and adopts its Opposition to

the Motion to Compel and the Motion to Seal (hereinafter the "August 2l51 Opposition"). Not

only did the August 21 st Opposition fail to address all of the issues presented by the Motion to

Compel and Motion to Unseal (e.g., Petitioner does not contend or attempt to argue that the trial

court was legally correct with respect to any of the privilege rulings that the Respondent

challenges), but the August 2l51 Opposition does not address any of the additional issues

presented by the Respondent in the Constitutional and Legal Exceptions (e.g., Petitioner does not

contend that the trial court was correct in concluding that Petitioner did not have to sign

interrogatory responses under oath, as required by Md. Rule 2-421 (b ), on the purported basis that

it is not a party to this case). Because the Petitioner does not challenge any of the Respondent's

exceptions on these points, the Court should consider them uncontested.

II. RESPONSE REGARDING FACTUAL EXCEPTIONS

A. Unchallenged and Indirectly-Challenged Factual Exceptions

Notwithstanding footnote number 1 of the Reply, the Petitioner does not appear to offer

any rebuttal or argument in opposition to the following Factual Exceptions, and as such, they

should be considered to undisputed:

• Factual Exception #A.6 (Except. at 24-25): The Finding that the Respondent Failed to Promptly Order the Transcript

• Factual Exception #A.8 (Except. at 26-27): The Finding that the Respondent Failed to Undertake any Actions that Advanced the Interests of Ms. Martin's Appeal

4

• Factual Exception #A.9 (Except. at 27): The Finding that the Respondent Failed to Advise Martin to Seek the Advice of Independent Counsel Regarding the Proposed Release

• Factual Exception #A. IO (Except. at 28-29) - The Finding that Continued Email and Text Messages as Late as March 20, 2015 Demonstrate that No Documents Were Ever Provided, in Response to Martin's Requests

The following factual exceptions do not appear to be directly challenged by the

Petitioner, but they rely upon Factual Exception #A.1 and Factual Exception #A.2, which

Petitioner does directly challenge, and as such, these exceptions may be considered to be

challenged indirectly:

• Factual Exception #A.11 (Except. at 29-30): The Finding that the Respondent Made Knowing and Intentional Misrepresentations to COSA in the Motion for Extension

• Factual Exception #A.12 (Except. at 30-31): The Finding that the Respondent Made Knowing and Intentional Misrepresentations to Bar Counsel

• Factual Exception #A.13 (Except. at 31 ): The Finding that the Respondent Made Knowing and Intentional Misrepresentations to Martin

Respondent addresses the Petitioner's challenges to the controverted factual exceptions in

the section below.

B. The Petitioner's Reply Confirms that the Findings Regarding the December 8111 Text Message (Factual Exception #A.I) and the December J(Yh Payment (Factual Exception #A.2) are Clearly Erroneous, and In any Event, any Conclusion that the Respondent Violated the MLRPC Based upon these Findings Would Constitute a Violation of His Due Process Rights

l. The December 8th Text Message

Petitioner's response to the Exceptions confirms the Court's finding that the Respondent

specifically requested $3,000 from Martin on December 8, 2014 to pay for the transcripts, and all

variations permutations thereof, is clearly erroneous. "[T]o be sustained, the findings of fact of

[the hearing judge] must be supported by clear and convincing evidence." Atty. Griev. Comm 'n.

5

v. Kemp, 335 Md. 1, 9 (1994 ). "[T]he term 'clear and convincing' evidence means that the

witnesses to a fact must be found to be credible, and that the facts to which they have

testified are distinctly remembered and the details thereof narrated exactly and in due

order, so as to enable the trier of the facts to come to a clear conviction, without hesitancy,

of the truth of the precise facts in issue." Atty. Griev. Comm'n. v. Harris, 366 Md. 376, 389

(2001) (emphasis added).

It is undisputed that the only witness who provided any testimony on the subject of

whether the Respondent ever asked Martin for money for the transcript was Martin herself.

Here, Petitioner concedes that Martin testified numerous times on direct examination that

Respondent never asked her for money for the transcript,4 but then purports to rely on an

exchange during cross-examination,5 where Martin attempted to read in language to the

December 8th Text Message and purported to testify that the Respondent specifically asked her to

pay him money for the transcript on that day.6 In addition to ignoring the plain language of the

text message itself, the Petitioner ignores additional contradictory testimony from Martin that

immediately followed the quoted exchange,7 and wholly overlooks the well-settled rule divesting

4 T-596: 18-20 (Martin direct examination testimony that the Respondent never requested money from her to pay for the transcripts); T-671 :24-672:7 (Martin direct examination testimony that the Respondent never asked her for money to order the transcript).

5 T-853:5-16; T-854: 10-14 (Martin cross-examination testimony cited by Petitioner).

6 Recall the December 8th Text message read, "Shannan, how is your funding coming? I need to order the transcript ASAP without any further delay." The December 8th Text Message did not ask Martin to send money directly to the Respondent for the transcript nor did it reference or seek any specific amount of money.

7 See e.g., T-853:24-854:2 (Martin testified, "If you had asked me to pay for it I would have paid for it. Jennifer Anukem, she, asked me and I directly paid for it") (emphasis added); T-864: 16-22 (Martin testimony that Respondent never specifically requested money from her to pay for the transcripts and never provided her an estimate of how much she should pay for the transcripts).

6

inconsistent testimony of any probative weight, which dictates that the exchange cited by

Petitioner is not competent evidence supporting the finding that Respondent specifically

requested $3,000 from Martin on December 8, 2014 to pay for the transcripts. "[IJf a witness

says in one breath a thing is so and in another breath that it is not so, then his [or herJ

testimony is too contradictory to have any probative value and [the fact finder] will not be

allowed to speculate as to which version of the witness' testimony to select as being true."

Brooks v. Daley, 242 Md. 185, 191 (1966). Put another way, there is no way that uncorroborated

and wholly-contradictory testimony, such as that in this case, could constitute clear and

convincing evidence because when a witness provides inconsistent testimony, the facts to which

he or she has testified are not "distinctly remembered" and the details thereof are not "narrated

exactly and in due order," as "to enable the trier of facts to come to a clear conviction, without

hesitancy, of the truth of the precise facts in issue." See Harris, supra, 366 Md. at 389.

Next, Petitioner misstates that there is no evidence that the transcripts at issue were with

Martin's former counsel or that the Respondent had knowledge that Martin believed the

transcripts were with her former counsel. See Resp. at 3 ("There is no evidence that.. .[the

Respondent] had any knowledge that Ms. Martin believed that the transcripts were with

her former counsel'') (emphasis added). Au contraire, Martin specifically testified that she told

the Respondent on the telephone that the transcripts were with her former counsel. T-627:5-11

("Yes. Mr. Ucheomumu communicated with me, I believe, it was in a phone conversation .. . I

do recall mentioning to him that I believed that the transcript was ordered already by my

prior attorney") (emphasis added). See also T-627:21-25 (Martin testimony that she was under

the impression that the Respondent would work with Stevens to get what he had and then order

7

anything else); T-866: 11-25 (Martin testimony that she believed the Respondent would obtain all

records related to her case, including transcripts, from Stevens). 8

Very simply, because the finding that the Respondent specifically requested $3,000 from

Martin on December 8, 2014 to pay for the transcripts is not supported by competent evidence, it

is clearly erroneous, and the Respondent's factual exception #A.1 should be sustained.

2. The December 10th Payment

In the Reply, Petitioner further confirms the trial court's finding that, on December 10,

2014, Martin specifically paid $3,000 to the Respondent for the purpose of ordering the

transcript, and all variations or permutations thereof, is clearly erroneous. In purported support

of its argument against the Respondent's exception, the Petitioner cites, on page 5 of the Reply,

testimony from Martin suggesting that her employment of the term "legal fees" on the memo line

of the December 101h check did not foreclose the possibility that she intended the money to be

earmarked specifically for the transcript on the purported basis that "[her) transcript, in [her]

8 Note Petitioner also states on page 3 of the Response that there was no evidence the transcripts at issue were in Stevens' file. This is somewhat misleading. The Respondent attempted to introduce evidence on this point in the form of the transcripts themselves showing that at a July 22, 2014 hearing in the Martin Custody Case, the transcripts from the two prior hearings on February 12, 2014 and March 20, 2014 were utilized in the proceedings and that at least one of them was made part of the record in the form of an exhibit. See T-1053: 13- 1056:7. Unfortunately, the Respondent was disallowed from introducing the transcript or even having it marked as an exhibit. Id. Respondent maintains, as part of his evidentiary exceptions, that this was an error because they were an official record and the information therein was relevant. See Except. at 12. Petitioner further states that there is no evidence that the Respondent made a determination he would not be able to obtain the file from Stevens. See Response at 3. Au contraire, Martin testified the Respondent told her he was not successful at obtaining the file from Stevens. T-685:25-686:5. Furthermore, the Court found the Respondent did not obtain Martin's client file from Stevens even though he had specifically and promptly requested it. Op. at 4, 12. Respondent maintains that the Court erred in refusing to allow him to introduce evidence as to why he was not able to obtain the file. See T-867: 1-6.

8

mind, [was] part of [her} legal fee." T-863: 17-19.9 Irrespective of what Martin's subjective

belief may have been that transcripts, in her mind, were part of her "legal fees," the cited

exchange is not competent evidence as to whether Martin intended the December 101h Payment

be allocated specifically for the transcripts or not and given the overwhelming amount of other

evidence in the record to the contrary, the finding that the December 101h Payment was intended

to be specifically earmarked for the transcripts remains clearly erroneous as unsupported by

competent evidence.

First, it is critically important to remember that Martin was the only witness who

testified with respect to the subject of the December 10th Payment. It is further critically

important to recall she never explicitly testified that she paid the Respondent $3,000

specifically for the transcript on December 10, 2014. Notwithstanding her testimony that the

Respondent had never asked her to pay (and thus that she had never paid for) the transcript

several times throughout the trial court proceedings, 10 the closest thing that Martin testified to on

cross-examination in the excerpt cited by the Petitioner is that two days after the December 8th

Text Message, on December 10, 2014, she paid the Respondent $3,000. T-853:5-16. She did

not testify that the $3,000 was specifically for the transcript. Indeed, in an exchange following

the testimony cited on page 5 of the Petitioner's Reply, Martin provided additional testimony

suggesting that she had never paid for the transcripts specifically because the Respondent, unlike

9 Note that there is no evidence in the record that Martin ever communicated her subjective belief to the Respondent that she considered the transcript to be part of her "legal fees." If Martin intended the payment to be earmarked specifically to the transcript rather than the Respondent's legal fees, she should have communicated that to him, as any reasonable and objective person who read the AEA would have distinguished in his or her mind between the legal fees and other costs, which the AEA stated would be payable separately.

IO See e.g., T-596: 18-20; T-671:24•672:7.

9

her successor counsel, Anukem, had never specifically asked her to pay for the transcripts. T-

853:24-854:2 ("If you [the Respondent] had asked me to pay for it I would have paid for it.

Jennifer Anukem, she asked me and I directly paid for it") (emphasis added). 11 Thereafter,

Martin confirmed again that the Respondent, unlike Anukem, had never asked her to pay any

specific amount of money for the transcript (and thus, that she had not paid any specific amount

of money for the transcript). T-864: 16-12. Other than her testimony where she confirmed that,

as of December IO, 2014, she had owed the Respondent $3,300 for legal fees under the terms of

the AEA, she provided no other testimony or insight into how or why she selected $3,000 as the

amount of money to pay the Respondent on December 10, 2014. 12 In sum, the only competent

evidence in the record as to the basis for Martin's having selected $3,000 as the amount of the

December 10th Payment was that it was the approximate amount she owed to the Respondent for

his legal fees as of that date, and that following the December 10th Payment, Martin remained

only $300 behind on the legal fees.

The finding that the December l01h Payment was specifically for the transcript is also

wholly incongruous with Martin's testimony, as cited on page 18 of the Exceptions, that the

Respondent specifically told her that all the money she paid him (including the $3,000 on

December 10, 2014) was for his legal services and not for anything else (such as the transcript).

See Except. at 18 (citing T-676: 18-677:5). As the Respondent also noted in his Exceptions, it

would not have made sense for Martin, given her limited resources, to pay the Respondent any

11 To the extent that Martin could be considered to have provided conflicting testimony as to whether the December 10th Payment was to be specifically allocated to the transcripts, such testimony is not competent evidence and cannot meet the clear and convincing standard of proof for the same reason noted supra with respect to the conflicting testimony about the December 8th

Text Message.

12 See T-860:22-861 :3.

10

amount of money for the transcripts prior to the time the Respondent obtained the file from

Stevens. This is because Martin adamantly believed that Stevens had one or more of the

transcripts already and that the Respondent would obtain them from Stevens and then order

anything else that was necessary. Recall that Martin specifically testified that she told the

Respondent in a telephone call that Stevens had the transcripts and that she was under the

impression he would work with Stevens in getting them. T-627:5-11; T-627:21-25. 13 Finally, the

Court's finding regarding the December 10th Payment does not account for this December 10th

Telephone Call.

Last, and perhaps most importantly, repeatedly throughout the Opinion, the trial court

itself found that the entire $6,200 paid by Martin to the Respondent was for his legal services and

not the transcripts. Op. at 13-14 ("For those services, Ms. Martin paid the Respondent a total

of $6,200.00 of the agreed upon flat fee of $10,500.00") (emphasis added); Op. at 20 n. 2

("[A]s of the March 18, 2015 termination of services date, Ms. Martin had only paid $6,200.00

for the Respondent's legal services, and not the $10,500.00 as stated within the Attorney

Engagement Agreement"); Op. at 31 ("Ms. Martin paid the Respondent a total of $6,200 to

provide that service") (emphasis added). The Petitioner did not take exception to these

findings. They are therefore undisputed and wholly contradict the finding that the $3,000 paid

by Martin to the Respondent on December 10, 2014 was specifically for the transcripts.

13 While Martin did not specify (and has not yet been questioned) regarding the precise date of the call in which she told the Respondent that the transcripts were in Stevens' file, the Respondent proffers that, based on the phone records, on December 10, 2014 at 7: 12pm ET, Martin telephoned him and a call ensued (hereinafter "the December 10th Telephone Call").

11

In sum, because the finding that the December 10th Payment was specifically intended to

be earmarked for the transcripts is not supported by competent evidence, it is clearly erroneous,

and the Respondent's factual exception #A.2 should be sustained.14

3. In Any Event. Due Process Considerations Preclude the Court from Concluding the Respondent Committed Any Rule Violations on the Basis of the Findings at Issue in Factual Exception #A.I and #A.2 Because the Respondent Was Not Charged with Any Rule Violations on Such Basis and the Petitioner Cannot Amend the Charges in a Manner that Alters the "Character of the Offense" after the Trial is Over

The two findings at issue in factual exception numbers l and 2 are effectively the

lynchpin findings upon which the Petitioner underpins its entire case. Essentially, Petitioner

contends at this point that (i) the Respondent specifically requested $3,000 from Martin on

December 8, 2014 to order the transcripts; (ii) on December 10, 2014, Martin specifically paid

$3,000 to the Respondent for the transcript order; and (iii) the Respondent never ordered the

transcripts, but used Martin's money for something else instead, and therefore, insinuates

violated various MLRPC. Effectively, this is a misappropriation theory of misconduct. Indeed,

the Court used the purported findings at issue in Factual Exception #A. I and #A.2 to fully or

partially support its conclusions that the Respondent violated MLRPC l .4 ( Op. at 17), 1.5 ( Op. at

19), 1.15 (Op. at 24), 3.3 (Op. at 27), 8.1 (Op. at 30), and 8.4 (Op. at 31-32).15 The problem with

this theory and the findings that purport to underpin it is that it was never actually charged.16

14 This is especially true in light of the Court's undisputed findings on pages 13 and 31 of the Opinion that all of the $6,200 paid by Martin to the Respondent for his legal services.

15 While the Court did not elaborate on the basis for its findings concerning aggravating factors, the Court clearly also relied on the findings for the conclusions that the Respondent acted with a dishonest or selfish motive and that he submitted false statements during the disciplinary process.

16 "Here, the [Petitioner] ambushed the [Respondent] with a new theory of culpability after the evidence was already in ... this new theory ... was neither subject to adversarial testing, nor defined in advance of the proceeding." Cf, Sheppard v. Rees, 909 F.2d 1234, 1237 (9th Cir. 1990) (citing Strickland v. Washington, 466 U.S. 668) (1984) (internal quotation marks omitted).

12

Rather, in this case, the Petitioner charged the Respondent on the purported basis that he had

never advised Martin about the need to order the transcript nor requested any money from her to

do so. Everyone (including Martin) always agreed that she had never specifically paid the

Respondent for the purpose of ordering the transcript and, at all times up through the second day

of trial, 17 there was no contention by either Martin or the Petitioner that the Respondent had

effectively misappropriated money that was supposed to be used to order the transcript for some

other purpose. Indeed, the Respondent was charged with wrongdoing in this case on the alleged

basis that he had never communicated with Martin regarding the ordering of the transcript and

that he had never requested from her funds so that he could obtain the transcripts. See e.g.,

Amnd. PDRA at <JI<J[9-10, 22-23, 27; See Resp. Ex. 37 (Pet. Resp. to First lnterrogs.) at 8 (Ans. to

Int. No. 15) ("Respondent never communicated with Ms. Martin about ordering the transcripts

or requested from her funds so that he could obtain the transcripts") (emphasis added); See

Pet. Supp. Resp. to First Interrogs.) at 3 (Supp. Ans. to Int. No. 16) (Admitting that all of the

$6,200 paid by Martin to Respondent was for legal fees to handle her case); Resp. Ex. 37 (Pet.

Resp. to First lnterrogs.) at 11 (Ans. to Int. No. 23) (Admitting that Martin paid the Respondent

$6,200 for the legal fees).

Given the Petitioner's ambush of the Respondent and that the Petitioner neither requested

consent of the Respondent to amend the charges against him nor that the trial be continued for

the purpose of amending the charges and affording the Respondent an opportunity to prepare any

17 Petitioner contends that Respondent intentionally concealed the December 8th Text Message during discovery. The contention is entirely unfounded and the trial court made no such ruling. Furthermore, the December 8th Text Message was exculpatory with respect to the Respondent's notifying Martin about the urgency of ordering the transcripts. The message was not incriminating, as there was never any assertion by Martin (or Petitioner) that the she had paid the Respondent for the specific purpose of ordering transcripts.

13

defense on the basis of Petitioner's new theory of culpability, it would be a violation of the

Respondent's due process rights to conclude that the Respondent committed misconduct on the

basis of the findings at issue in Factual Exception #A. l and #A.2.

Attorney disciplinary cases are "adversary proceedings of a quasi-criminal nature."

In re Ruffalo, 390 U.S. 544, 550-51 (1968) (emphasis added). Defendants in grievance

proceedings are "entitled to the basic elements of due process - notice and the opportunity to

defend in a full and fair hearing." Atty. Griev. Comm'n. v. Stewart, 285 Md. 251,259 (1979).

Hearings must be held "at a meaningful time and in a meaningful manner." Matthews v.

Eldridge, 424 U.S. 319,333 (1976). "A hearing is not meaningful if a [defendant] is given

inadequate information about the basis of the charges against him: ' Taylor v. Rodriguez, 238

F.3d 188, 193 (2d. Cir. 2001). For a hearing to be meaningful, "the charge must be known

before the proceedings commence." Ruffalo, 390 U.S. at 550-51 (emphasis added). "[A]bsence

of fair notice as to the reach of the grievance procedure and the precise nature of the charges

deprive [the accused] of procedural due process." Atty. Griev. Comm'n. v. Costanzo, 432 Md.

233,256 (2013) (citing Ruffalo, 390 U.S. at 551).

a. Due Process Requires the Initial Charging Document Contain Factual Allegations, which if proven, Would Render the Conduct Complained of an Offense

To satisfy the requirements of procedural due process, the charging document

commencing the disciplinary proceeding must specify (a) the RPC alleged to have been

violated;18 and (b) "the factual allegations against which the attorney must defend." Atty.

Griev. Comm 'n. v. Myers, 333 Md. 440, 444-45 ( 1994) ( citing Atty. Griev. Comm 'n. v.

McBurney, 282 Md. 116, 123-24 (1978)). The factual allegations against which the attorney

18 Costanzo, 432 Md. at 256.

14

must defend are those "which must be proved [by clear and convincing evidence] to make the

act[s] complained of [an offense]." See Thanos v. State, 282 Md. 709, 714-16 (1978)~ see also

Atty. Griev. Comm'n. v. Walman, 280 Md. 453, 463-64 (1977); Md. Rule 16-757(b) (Implying

the charging document contains factual allegations which if proved, by clear and convincing

evidence, would render the conduct complained of a violation of the charged RPC). The "facts

which must be proved to make the act complained of [an offense]" comprise what is known

as the "character of the offense." Thanos, 282 Md. at 714-16 (emphasis added); see also

Tapscott v. State, 106 Md. App. 109, 134 (1995).

b. An Amendment that Alters the Character of the Offense after the Trial Has Begun Violates the Respondent's Due Process Rights

It is well settled law that "a fair trial is one in which evidence subject to adversarial

testing is presented to an impartial tribunal for resolution of issues defined in advance of

the proceeding ... " Rees, 909 F.2d at 1237 (emphasis added). In sum, all facts comprising the

"character of the offense" are matters of substance in the charging document and they must be

known before the proceedings commence. Thanos, 282 Md. at 714. The proceedings "become

a trap when, after they are underway, the charges are amended" in a manner that has the

effect of substantively altering the charging document as to change the "character of the

offense;" such amendment, if performed without the defendant's consent, would violate his

"constitutional right to be informed of the accusation against him in time to prepare his defense."

Ruffalo, 390 U.S. at 551; Thanos 282 Md. at 716. This is equally true where, as here, the

proposed amendment is made constructively by attempting to rely upon facts not charged to

support a finding of culpability. Walman, 280 Md. at 463-64 (Holding proposed constructive

post-trial amendment altering character of offense would violate the defendant's procedural due

process rights); see also Atty. Griev. Comm 'n. v. Stanalonis, 445 Md. 129, 142 (2015)

15

(Recognizing attempt to constructively amend charges post-trial in a manner that altered the

character of the offense, by pivoting from a theory of culpability based upon an intentional

misrepresentation to a theory based upon reckless disregard, presented a notice problem).

Here, in light of among other things, its failure to obtain the Respondent's consent to

amend the charges after the trial proceedings began and its failure to request a continuance

during the trial court proceedings for the purpose of amending the charges and affording the

Respondent adequate notice and opportunity to prepare for amended charges against him, the

Petitioner's attempt to pivot from a theory of culpability on the basis that "Respondent never

communicated with Ms. Martin about ordering the transcripts or requested from her funds so

that he could obtain the transcripts" to a theory of culpability on a basis that he effectively

misappropriated money paid to him for ordering the transcripts represents a clear change in the

"character of the offense" after the trial proceedings had already commenced, and cannot, on this

record, constitutionally serve as the basis for findings any MLRPC violations on the part of the

Respondent.

C. Petitioner's Attempted Mischaracterization of the Respondent's Accounting Statement as a "Billing Invoice" Provides No Basis for Overruling the Respondent's Exception #A.3

Petitioner appears to address Respondent's Exceptions #A.3 and #A.4 under the single

heading entitled "Respondent's Billing Invoice" on pages 6-8 of the Reply. Respondent will

address Petitioner's arguments separately, as they relate to the two different exceptions. With

respect to Respondent's Exception #A.3, it is not entirely clear that Petitioner is directly

challenging Respondent's exception. Rather, it appears that Petitioner is attempting to address

that exception by perpetuating the mischaracterization that the Respondent's accounting

16

statement was a "billing invoice," in the sense that it was intended to either bill or seek money

from Martin for the services performed. Petitioner noted in relevant part:

At trial, Ms. Martin testified that following her termination of the Respondent's services, he sent her a billing invoice for over $6,000.00. At trial, Ms. Martin was presented with an invoice from the Respondent for $10,944.50. She testified that she recognized that billing invoice, and that she had received the invoice either through her successor counsel or through Bar Counsel during the disciplinary investigation

Reply at 6-7 (emphasis added). Irrespective of whether or not Martin colloquially referred to the

accounting statement (which she had requested)19 as a "billing invoice," 20 given her own

uncontroverted testimony that the Respondent was not seeking to collect money by sending her

the accounting statement,21 and given the Court's own finding in footnote 2 on page 20 of the

Opinion that "there [is no] evidence of the Respondent attempting to collect any additional funds

from Ms. Martin subsequent to receiving [the] payments totaling $6,200.00," the findings at

issue in Factual Exception #A.3 are clearly erroneous, and the exception should be sustained.

19 T-661:20-22.

20 See Heller v. National Marine Bank, 89 Md. 602, 611 (1899) ("To call a thing a wrong name does not change its nature ... Nothing is more common in the construction of statutes and contracts than for the Court to correct such self-evident misnomers by supplying the proper words") (emphasis added). Here, the term "billing invoice" is the wrong word. The document was mere ly an accounting statement that informed Martin about the value of the work that had been performed on her behalf. Recall also that the accounting statement was sent to Mart in with an offer of a $1,200 refund of the monies she had paid the Respondent.

21 T-937: 1-8.

17

D. Petiti.oner's Argument Regarding the Respondent's Use of the Accounting Statement in Support of His Position that He Did Not Fail to Maintain Unearned Fees in Escrow Provides No Basis for Overruling the Respondent's Exception #A.4

1. Respondent's Use of the Accounting Statement for the Purpose of Supporting the Respondent's Exception Was Proper and Supported by the Record, and in any Event. the Petitioner Had the Burden of Proving the Respondent Had Not Done the Work as Claimed

Petitioner challenges Respondent's exception #A.4 on the purported basis that he

attempts to rely upon the accounting statement (Petitioner's Exhibit #20), which Petitioner

contends is hearsay and was only admitted for some limited purpose. See Reply at 6.

Petitioner's gripe is without merit because the accounting statement was admitted into evidence

without qualification or limitation. T-684:21-685: 10. It is highly notable that at no time during

the proceeding did the Petitioner state that it was taking issue with any of the entries in the

accounting statement. Furthermore, Petitioner did not prove, and the Court did not find, that any

of the entries in the accounting statement were inaccurate.

Having introduced the accounting statement into evidence without qualification or

limitation, Petitioner cannot now come back and attempt to place a restriction on its use. As

such, Respondent's use of the accounting statement in supporting his contention that, as of the

time that Martin paid him, he had all earned the fees, was not improper. Additionally,

Petitioner's attempt now to place the onus on the Respondent to affirmatively prove the accuracy

of each of the entries is an attempt to shift the burden of proof in this case. It was the Petitioner's

job to establish that the Respondent had not earned the fees (i.e., the Petitioner had the burden of

proving the accounting statement false); it was not the Respondent's job to establish that he did

earn the fees.

In any event, the Petitioner's contentions that there was no evidence in the record to

corroborate the entries in the accounting statement was not correct. Many of the entries in the

18

accounting statement could be corroborated by the email communications, text messages and

other documents in the record. Furthermore, Martin testified that she had had some 50

conversations with the Respondent and she corroborated the fact that the Respondent had

negotiated with the opposing party on her behalf. Finally, Martin's successor counsel, Anukem,

based upon her own independent assessment of the accounting statement and the records in the

case concluded that the Respondent's accounting statement was legitimate, something that was

even documented by the Petitioner's own investigator, Richard Lisko. See Resp. Ex. 34; T-

1028: l-14.

2. In any Event. the Fees Paid by Martin, Pursuant to the AEA. Were Engagement Fees Not Advance Retainers. and therefore. they Were Earned upon Receipt; as such, Irrespective of the Number of Hours the Respondent Had Worked on Martin's Behalf as of the Time the Payments Were Made. the Respondent Did Not Fail to Place Unearned Fees in Escrow

Notwithstanding the number of hours the Respondent spent working on behalf of Martin

and that the Petitioner alleges the Respondent did not prove that he actually spent all of the time

noted in the accounting statements (and thus should not rely on the accounting statement to

establish that he is not guilty of failing to deposit unearned fees to an escrow account), any

finding the Respondent failed to deposit unearned fees to escrow is clearly erroneous in any

event because, under the terms of the AEA, all of the fees paid to the Respondent were part of an

engagement fee that were earned upon receipt.

An engagement fee is a sum of money paid by a client to secure an attorney's availability

over a period of time. Atty. Griev. Comm 'n. v. Stinson, 428 Md. 147, 181 (2012). "[Such fee] is

generally considered [to be] earned upon receipt or non-refundable." Id. (quoting Atty. Griev.

Comm 'n. v. Kreamer, 404 Md. 282 (2008)). "An engagement fee could be utilized by an

attorney if she or he performs a service or provides a benefit to the client in exchange for

19

the fee." Stinson, 428 Md. at 181 (quoting In re Sather, 3 P.3d 403,411 (Colo. 2000) (en bane).

"[S]everal benefits the attorney could provide for a client in exchange for the fee, including:

agreeing to take the client's case, making the client's case a priority over other work, or by

agreeing not to represent an opposing party." Id. An engagement fee is considered reasonable

"if it bears a reasonable relationship to the income the lawyer sacrifices or expense the lawyer

incurs by accepting it, including such costs as turning away other clients." Stinson, 482 Md. at

182 (quoting Restatement (Third) of the Law Governing Lawyers §34 cmt. e).

Here, the AEA clearly provided that the legal fees payable to the Respondent by Martin

were in consideration of his "reserving time for the appeal [noted therein], and turning away

other clients to devote time to [Martin's] case." Pet. Ex. 3. The AEA further provided that

because of this, such fee was non-refundable (except under certain circumstances enumerated in

the AEA) and that it could be deposited into a general operating account rather than an attorney

trust account. Id. Because it was understood under the AEA that the fees that were paid by

Martin were for the purpose of securing the Respondent's availability for her case, something

that would require him to turn away other clients in order to prioritize Martin's work, and

because it was understood that the fees paid would generally be non-refundable (except under

certain circumstances enumerated in the AEA), such fees were clearly an engagement fee that

were earned as of the time they were received, irrespective of the number of hours the

Respondent had spent already working on Martin's behalf prior to the time such fees were paid.

As such, any finding that the Respondent failed to place unearned fees in a trust account is

clearly erroneous, irrespective of whether the Respondent proved that he completed all the work

shown in the accounting statement or not.

20

E. The Respondent's Factual Exception #A.7 Regarding the Finding that Respondent Caused the Dismissal of Martin's Appeal Should be Sustained

Petitioner challenges Respondent's factual exception #A.7 on the basis that it purportedly

relies on evidence that was not admitted by the trial court. The Petitioner's challenge is

somewhat misleading because some of the facts upon which the exception relies are derived

from evidence admitted by the trial court, 22 and all the remaining facts upon which the exception

relies are irrefutable, undisputed and of the type subject to judicial notice pursuant to Md. Rule

5-201.!l

The doctrine of judicial notice substitutes for formal proof of a fact when formal proof is

unnecessary to enhance the accuracy of the fact-finding process. Lerner v. Lerner Corp., 132

Md. App. 32, 40 (2000) (quoting Smith v. Hearst Corp., 48 Md. App. 135, 1.36 (1981)).

Judicial notice may be taken of facts, from outside the record, at any stage of the

proceedings in accordance with Md. Rule 5-201, including while a case is pending on

appeal. Among the type of facts subject to judicial notice are those that are either matters of

common knowledge or capable of certain verification, such as by resorting to sources whose

accuracy is beyond dispute. Lerner, 132 Md. App. at 40. Among the sources from which courts

may take judicial notice are the records of other court proceedings. Meeks v. Dashiell, 166 Md.

22 For example, among the facts, admitted into evidence, upon which the exception relies are that Martin's former counsel, Stevens, filed a motion to alter or amend (the "Motion to Alter or Amend" or "MAA'') of the Custody Order prior to the Respondent's entry into the case. T-689: 14-19; see also T-563: 1-8; T-562: 12-16.

23 Respondent excepts to the trial court's refusal to take judicial notice of the facts at issue to resolve this Exception. See Except. at 11-12. In this case, the trial court erred in refusing to take judicial notice of the additional facts pertinent to this exception, notwithstanding that the Respondent presented all the proper information to the Court along with a request for judicial notice, and as such, the taking of judicial notice was mandatory under Md. Rule 5-201(d) . Very simply, the trial court did not have discretion to refuse the Respondent's request to take judicial notice of the facts at issue herein. Dashiell v. Meeks, 396 Md. 149, 176 (2006).

21

App. 415, 445-447 (2006). Judicial notice may also be taken of the law or the fact that some law

or legal authority exists. See e.g., Dean v. State, 205 Md. 274,279 (1954) ("The judge was

clearly entitled to take judicial notice not only of the law ... ") (emphasis added); Bost v. State,

406 Md. 341,359 (2008) ("We take judicial notice of the law ... ") (emphasis added).

Nonetheless, because judicial notice may be taken at any stage of the proceeding, the

Respondent asks this Court to take judicial notice now of the additional facts necessary to

resolve the exception. Respondent attaches as EXHIBIT 1 hereto a copy of the Edsall Issue

Memorandum. The facts about which the Respondent seeks to have judicial notice taken are

derived directly from the records of the Martin Custody Case and the law of this State. The

most critical fact for which the Court is asked to take judicial notice is that, as of the time

of the trial in this matter in January 2018, the MAA filed by Stevens in the Martin Custody

Case in September 2014 had not yet been ruled upon or withdrawn, and thus, it remained

pending and unresolved. See Resp. Ex. 2 (Official Docket Report fr. Martin Custody Case,

dated Jan. 3, 2018); see also Ex. 1 at 1-4. The Court is further requested to take judicial notice

of the law and legal authorities cited in the Edsall Issue Memorandum, which clearly establish

that because the MAA remains pending and unresolved as of the date of the trial in this matter,

the time for appealing the Custody Order at issue had not yet come, and in sum, from a legal

perspective, Martin was in no worse a position, vis a vis her custody case, when she terminated

the Respondent (and hired Anukem) in March 2015 than she was when she hired the Respondent

in November 2014. In other words, Martin still had the full ability to pursue her appeal. At the

time she terminated the Respondent, she could have simply sought final resolution of the still

pending MAA by the Circuit Court for Prince George's County and then, if she was still

22

unhappy with the Court's decision, she could have sought to have the Notice of Appeal she filed

on November 2, 2014 reprocessed by the Clerk correctly.24

Very simply, as set forth in the Edsall Issue Memorandum, under the well-settled law, the

appellate court proceeding at issue in this case was a nullity, and as such, the Respondent could

not have caused its dismissal or failure. 25 In sum, the finding that the Respondent caused

Martin's appeal to be dismissed is clearly erroneous and Respondent's exception should be

sustained.

F. The Respondent's Exception #B.1 Should Be Sustained

The gravamen of the Court's finding to which the Respondent has taken exception is that

the Respondent failed to advise Martin about the need for the transcripts in a timely manner (i.e.,

before November 30, 2014). Indeed, the erroneous finding was one of the three purported basses

on which the Court concluded the Respondent violated Rule 1.1. See Op. at 12 ("This Court

further finds the Respondent violated Rule 1.1 when he did not contact Ms. Martin regarding

the timely ordering of the transcript associated with her case") (emphasis added). The AEA

24 Recall that, based upon the well-settled law cited in the Edsall Issue Memorandum, processing of a notice of appeal is delayed until such time as a Md. Rule 2-534 motion is finally resolved. The Notice of Appeal is deemed filed on the same day, but immediately after, the Court dockets an Order resolving the Md. Rule 2-534 motion.

25 Petitioner erroneously states that the Respondent's exception is imprudent on the purported basis that Respondent is effectively admitting to additional professional misconduct by having taken money from Martin "to file an untimely appeal." Respondent's exception is not an admission of additional professional misconduct. Indeed, no one could seriously argue that the Respondent willfully or intentionally accepted money from Martin to pursue an appeal he knew to be premature. It is unfortunate and regrettable that the Respondent did not recognize the Edsall Issue at the time of the events at issue in this case, and indeed, his failure to do so may even constitute negligence, but not willful misconduct. Respondent raises the exception regarding the Edsall Issue because, as explained infra, the fact that Martin's rights to pursue her appeal were not legally prejudiced by any action of the Respondent is pertinent to the legal conclusions and mitigation in this case.

23

Cover Email that the Respondent has asked this Court to review clearly refutes the finding in

question because it establishes that the Respondent did inform her about the transcripts in a

timely manner. Under the section heading "November 30· 2014 Transcript Deadline," on page 9

of the Reply, the Petitioner attempts to marginalize the November 3rd Email and challenge the

Respondent's exception #B.1 by mischaracterizing both the exception and the essence of the

material finding surrounding the November 30th deadline.26 Specifically, the Petitioner attempts

to miscast the material finding as one of whether as one of whether the Respondent specifically

told Martin to order the transcript prior to November 30, 2014 rather than one of whether the

Respondent advised Martin about the transcript prior to November 30, 2014. The material

finding to which the Respondent has taken exception is was the notion that "he did not contact

Ms. Martin regarding the timely ordering of the transcript associated with her case"

(emphasis added). See Except. at 32-34. This finding is clearly erroneous given the November

3rd Email. As such, the Respondent's Exception #B.1 should be sustained.

III. RESPONSE REGARDING EXCEPTIONS TO CONCLUSIONS OF LAW AS TO ALLEGED MLRPC VIOLATIONS

The Petitioner erroneously states that the Respondent provided no factual basis for his

exceptions to the trial court's conclusions of law regarding the alleged MLRPC violations. For

the most part, in the Exceptions, the Respondent integrated his arguments pertinent to the

conclusions of law into the factual exceptions section and then, with respect to each of the rules

covered in the Conclusions of Law section referenced the specific subsection(s) that were

relevant to the rule. The Respondent did this because he was time-crunched in working against

26 See Reply at 9 ("The Respondent challenges the trial court's finding that he failed to instruct Ms. Martin to order the transcripts prior to the November 30, 2014 deadline set by the Court of Special Appeals") (emphasis added).

24

the September 6, 2018 deadline to complete the Exceptions. Contrary to the Petitioner's

contention, as the Respondent demonstrates below, not ALL the exceptions to the conclusions of

law are contingent on this Court sustaining the Respondent's factual exceptions.

A. Rule 1.1

There is not clear and convincing evidence in this case that the Respondent violated Rule

1.1. There were three principal reasons cited by the trial court in support of its conclusion that

the Respondent violated Rule 1. I. These are as follows:

• That the Respondent did not contact Martin regarding the timely ordering of the

transcript associated with her case (Op. at 12);

• That the Respondent failed to obtain his client's past case file or court file and any

of the trial transcripts or court files ( Op. at 12); and

• That the Respondent did not timely file a Motion for Extension of Time in the

Court of Special Appeals (Op. at 13).

With respect to the first of the three predicates listed above, it is not correct for the

reasons stated in Respondent's Factual Exception #B. I on pages 32-34 of the Exceptions.

Although it is true that the Respondent never obtained Martin's client file from Stevens

or the transcripts prior to the time he was terminated in March 2015, given the totality of the

circumstances in this case, these facts do not support a Rule 1.1 violation. In concluding that

Respondent violated Rule 1.1 on the purported basis that he never obtained Martin's client file

from Stevens the Court wholly overlooked and failed to consider the reasons why he was not

able to obtain Martin's client file, even though it recognized that he had attempted to do so.

Indeed, the Court entirely disallowed the Respondent from pursuing a line of questioning that

would have been loaned insight into why he was unable to obtain Martin's client file. T-867: 1-6.

25

The consideration as to whether or not a disciplinary rule was violated requires a totality of the

circumstances analysis. See e.g., Atty. Griev. Comm 'n. v. Dyer, 453 Md. 585, 676 (2017)

(Applying totality of the circumstances analysis to determine whether an attorney violated

specific rule). In this case, given (1) the undisputed evidence that the Respondent promptly

requested Martin's client file after he was retained; (2) the Court's refusal to allow the

Respondent an opportunity to introduce evidence as to why he was not able to obtain Martin's

client file;27 and (3) the Court's lack of findings on the subject of why the Respondent was not

able to obtain Martin's client file, one cannot reasonably conclude that the Respondent's failure

to obtain Martin's client file supports a violation of Rule 1. 1.

Likewise, in this case, one cannot reasonably co~clude that the Respondent's failure to

order the transcripts supports a violation of Rule 1.1. Recall that Martin testified she told the

Respondent on the phone that Stevens had the transcripts (T-627:5-11) and that she expected he

would work with Stevens to get them (T-866: 11 -25; T-627: 1-25). Given these facts, it was

reasonable for the Respondent not to order any transcripts prior to the time he obtained the file

from Stevens. This is especially true because Martin had very limited resources (T-672:11-15)

and, as the Court found on page 31 of the Opinion, never paid the Respondent any money for the

purpose of ordering the transcripts.28 As it turned out, the Respondent never obtained Stevens'

file prior to being terminated, and as such, he did not obtain the transcripts either. In sum, the

27 See T-867: 1-6 (Court sustaining relevance objection to a question from the Respondent to Martin as to whether or she owed Ayo Stevens money thereby causing him to withhold the file) . Respondent alleges that Stevens withheld the file because Martin owed him money. See e.g., Re!>p. Ex. 21 at 3; Resp. Ex. 16 at I.

28 The trial court found on page 31 of the Opinion that all the $6,200 that was paid by Martin to the Respondent was for his legal services. See Op. at 31 {"Ms. Martin paid the Respondent a total of $6,200.00 to provide that service") (emphasis added).

26

fact that the Respondent never obtained Martin's client file or the transcripts prior to the end of

his involvement in the case does not support a Rule 1.1 violation given the totality of the

circumstances in this case.

The fact that the Respondent did not timely file a Motion for Extension of Time at the

Court of Special Appeals also does not support a Rule 1.1 violation in this case. It is well

settled law that mere negligence on the part of an attorney does not by itself rise to the level of an

MLRPC violation, especially in circumstances where the negligence does not lead to prejudice of

a client. Atty. Griev. Comm'n. v. Kemp, 335 Md. 1 (1994). At most, the Respondent's failure to

file a timely Motion for Extension of Time in the Court of Special Appeals was merely

negligence of the type that does not rise to the level of a violation of Rule 1.1 . This is especially

true given the Edsall Issue, because the consequence of the Edsall Issue is that Martin was not

legally prejudiced by either the Respondent's failure to file a timely Motion for Extension of

Time or any of the other events that ultimately occurred at the Court of Special Appeals. Rather,

from a legal standpoint, Martin was in the exact same position, vis a vis her rights to pursue an

appeal of the Custody Order, when she terminated the Respondent in March 2015 as when she

hired him in November 2014.

For these reasons, there is not clear and convincing evidence that the Respondent violated

Rule 1.1.

B. Rule l.2(a)

The Court concluded the Respondent violated Rule l .2(a). There is not clear and

convincing evidence that the Respondent violated Rule l.2(a). The Court's findings regarding

Rule l .2(a) hinges upon the following predicate:

• That the Respondent caused Martin's appeal to be dismissed (Op. at 14).

27

Very simply, the predicate above was clearly erroneous because, as explained in the

Respondent's Factual Exception #A.7 and in section 11.E on pages 21-23, supra, as a matter of

law, he could not have been responsible for the failure of Martin's appeal since, among other

things, the appellate proceeding at-issue was a nullity resulting from the Clerk's premature

processing of the Notice of Appeal Martin filed prose, on November 2, 2014, while her timely

filed Md. Rule 2-534 motion remained pending. See generally Edsall Issue Memo. at 1-4. In

reality, as of the date of the trial in this case (January 2018), the time for Martin to pursue her

appeal had not yet come because the MAA still remained pending and unresolved as of that date.

See Edsall v. Anne Arundel County, 332 Md. 502,508 (1993) ("[A] notice of appeal filed prior to

the withdrawal or disposition of a timely filed motion under Rule 2-532, 2-533, or 2-534, is

effective. Processing of that appeal is delayed until the withdrawal or disposition of the

motion. The trial court retains jurisdiction to decide the motion notwithstanding the filing of the

notice of appeal") (emphasis added).

Legally, Martin was in no worse position, with respect to her ability to pursue the

appeal, when she terminated the Respondent than when she retained him. See id. Because, as a

matter of Jaw, Martin's rights were unaffected by anything the Respondent did during the

appellate court proceeding, the Court should not have concluded that the Respondent violated

Rule 1.2(a) due to his actions during that proceeding.

The Respondent further notes that, irrespective of the Court's resolution of his Factual

Exception #A.7, the Court's conclusion regarding Rule l.2(a) does not appear to account for the

totality of the circumstances. The Court's conclusion presumes that the Respondent was retained

solely for the purpose of pursuing Martin's appeal, and as such that he did not do the job that he

was retained to do. It is fair to say this, however, because, as the trial court found, the

28

relationship between Martin and the Respondent was "more broad" than that. See Op. at 14.

Respondent, at Martin's request, "the Respondent provided additional legal services that were

generally related to the underlying family matter from which Ms. Martin's appeal emerged ... "

Id. Thus, the Respondent did do the work he was retained to do and there was not clear and

convincing evidence the Respondent violated l .2(a).

Respondent further submits any charges pertaining to Rule l .2(a) should be dismissed in

any event because, as stated in the December 22nd Brief, they were unauthorized as having never

been presented to or approved by the Commission. As set forth on page 8 of the December 22nd

Brief, the Commission and not Bar Counsel, is empowered with the decision of what charges

should be filed against an attorney. Bar Counsel may only file those charges that are

approved by the Commission. Dec. 22"d Br. at 9 (citing Atty. Griev. Comm 'n. v. Kinnane, 390

Md. 324, 335 (2005) and Atty. Griev. Comm 'n. v. Keiner, 42 l Md. 492, 511-12 (2011 )). A

respondent may challenge and seek the dismissal of unapproved charges at any time, an issue

addressed by this Court in the context of the former rules in which a Review Board, rather than

the Commission, decided what charges to file?il Atty. Griev. Comm 'n. v. Keister, 327 Md. 56, 73

(1992) ("Bar Counsel may file only such charges ... as are "directed" by the Review Board.

Where, on the other hand ... the Review Board does not direct, either expressly or implicitly, its

filing, a respondent may challenge that charge at any time ... "). As set forth on page 10 of the

December 22nd Brief, in this case, Thompson made a unilateral and ultra vires decision to tack

on a host of extra charges that had never been presented to and approved by the Commission.

Among these was the charge pertaining to Rule l.2(a). As such, the unapproved charge

29 Under the Rules that have been in place since 2001, the Commission itself, rather than a Review Board, has been vested with the oversight functions, and it is responsible for deciding what charges are to be filed, but the consequences of an unapproved charge remains the same.

29

pertaining to Rule 1.2(a) must be dismissed in any event.

C. Rule 1.3

The Court concluded the Respondent violated Rule 1.3. There is not clear and

convincing evidence that the Respondent violated Rule 1.3. The Court's findings regarding Rule

1.3 hinges upon the following predicates:

• That the Respondent did not promptly order necessary transcripts (Op. at 15)

• That the Respondent did not timely file a Motion for Extension of Time in the

Court of Special Appeals (Op. at 15).

With respect to the first of the three predicates listed above, it is not correct for the

reasons stated in Respondent's Factual Exception #A.6 (Except. at 24) and it fails to account for

the totality of the circumstances in this case by ignoring the very important fact that Martin

believed the transcripts had already been ordered and were in Stevens' file, and thus, that the

Respondent would obtain them from Stevens. T-627:9-11 ("I do recall mentioning to (the

Respondent) that the transcript was ordered already by my prior attorney") (emphasis

added); T-866:17-19 ("[The Respondent] told me that [he was] going to get my documents

related to my case from Ayo Stevens ... Now my understanding that it was any and all case

documents, records related to my case you wouldn't just go there and get documents you

would get everything [including the transcript].") (emphasis added).

The undisputed evidence is that on November 4, 2014, the very next day after he was

hired, he wrote to Stevens and attempted to obtain Martin's client file, which Martin believed

included the transcript. Resp. Ex. 14. Thus, it is unfair to say that the Respondent did not

promptly attempt to obtain the transcript because he promptly attempted to obtain the file that the

client believed included the transcript.

30

Although it is true that the Respondent did not timely file a Motion for Extension of Time

at the Court of Special Appeals, the fact does not support a Rule 1.3 violation in this case for the

same reason it did not support a l. l violation. Namely, it is well-settled law that mere

negligence on the part of an attorney does not by itself rise to the level of an MLRPC violation,

especially in circumstances where the negligence does not lead to prejudice of a client. Atty.

Griev. Comm'n. v. Kemp, 335 Md. 1 (1994). At most, the Respondent's failure to file a timely

Motion for Extension of Time in the Court of Special Appeals was merely negligence of the type

that does not rise to the level of a violation of Rule 1.1. This is especially true given the Edsall

Issue, because the consequence of the Edsall Issue is that Martin was not legally prejudiced by

either the Respondent's failure to file a timely Motion for Extension of Time or any of the other

events that ultimately occurred at the Court of Special Appeals. Rather, from a legal standpoint,

Martin was in the exact same position, vis a vis her rights to pursue an appeal of the Custody

Order, when she terminated the Respondent in March 2015 as when she hired him in November

2014.

Finally, even if the Court were to overrule the Respondent's factual exception #A.6 and

conclude that the Respondent did not promptly order the transcript, such conclusion would,

under the facts of this case not support a violation of Rule 1.3 both because, as a matter of law,

Martin was not legally prejudiced by any actions the Respondent took or failed to take in

connection with the appellate court proceeding dur to the Edsall Issue, and also, because as the

Court found on numbers occasions, Martin never paid the Respondent for the purposes of

ordering the transcripts. Rather, all of the payments that Martin made ot the Respondent were

for his legal services. Op. at 13-14 ("For those services, Ms. Martin paid the Respondent a

total of $6,200.00 of the agreed upon flat fee of $10,500.00") (emphasis added); Op. at 20 n. 2

31




provide that service") (emphasis added). In sum, based upon the totality of the circumstances

in this case, there is not clear and convincing evidence that the Respondent violated Rule 1.3.

D. Rule 1.4

The Court concluded the Respondent violated Rule 1.4. There is not clear and


1.4 hinge upon the following predicates:

• That the Respondent failing to promptly comply with Martin's reasonable requests

for information by providing her a copy of the motion for extension when

requested (Op. at 18);

• That the Respondent did not inform Martin about additional hourly costs of legal

services outside of the $10,500 flat engagement fee outlined in the AEA (Op. at

18);

• That the Respondent failed to keep Martin reasonably informed about the status of

her case (Op. at 16).

With respect to the first of the predicates listed above, it is clearly erroneous for the

reasons stated in Respondent's Factual Exception #10 (Except. at 28-29).30 As explained in the

exception, the court conflated two distinct requests that Martin made for specific information

about her case: (1) a request for a copy of the Motion for Extension on March 10, 2015; and (2) a

30 It is notable that Petitioner does not challenge factual exception #A. I 0.

32

request for her client file on or about March 20, 2015 following her termination of the

Respondent. The Court made its finding based upon the erroneous notion that the Respondent

had not complied with the first request, as purportedly evidenced by the second request, when in

fact, the second request was not probative of whether or not the respondent complied with the

first request because they sought different information. In sum, the record was devoid of any

evidence to suggest that the Respondent failed to comply with Martin's request on March 10,

2015 for a copy of the Motion for Extension. Therefore, the first predicate does not support a

violation of Rule I .4.

With respect to the second predicate, it is clearly erroneous for the reasons outlined in

Factual Exception #A.3 (Except. at 19-21). As the Respondent clearly explained in the

exception, there were no additional hourly costs for legal services outside of the $10,500 flat

engagement fee, and as such, the Respondent did not fail to inform about any additional costs of

legal services. Recall that what happened is that the flat-fee representation terminated prior to

the time originally contemplated in the AEA (i.e., before the Martin Custody Appeal was

complete), at which point Martin requested an accounting. This required the Respondent to

employ a loadstar approach to assess the fair value of the services that he had already performed

in order to prepare the requested accounting. See Except. at 19-21.

It is further notable that the finding at issue in the second predicate is entirely

contradicted by the Court's own observation in footnote 2 on page 20 of the Opinion, which was

that "there is no evidence of any communication by either party of a change or deviation from

the original fee, nor is there any evidence of the Respondent attempting to collect any

additional funds from Ms. Martin subsequent to receiving those payments totaling $6,200.00."

(emphasis added).

33

With respect to the third and final predicate listed above, it was clearly erroneous and

based upon an incomplete record as outlined in the Respondent's Factual Exception #B.2

(Except. at 34-36), which is incorporated by reference as if fully set forth herein. As such, it

does not support a conclusion that the Respondent violated MLRPC 1.4.

Next, for the reasons stated in Section 11.B.3 on pages 10-14 supra, to the extent that any

of the Court's findings regarding MLRPC 1.4 purport to rely upon any variations or

permutations of the erroneous findings that the Respondent specifically requested $3,000 for the

transcript order from Martin on December 8, 2014 and that Martin specifically paid $3,000 to the

Respondent for the transcripts on December 10, 2014, such findings should be stricken and the

charges underpinned by them dismissed due to lack of notice.

Finally, even if the Court were to overrule any of the exceptions with respect to the

predicates listed above, these facts still would not support a conclusion that the Respondent

violated Rule 1.4 given the totality of the circumstances in this case. This is especially true

because, as a matter of law, Martin was not legally prejudiced by any actions the Respondent

took or failed to take in connection with the appellate court proceeding dur to the Edsall Issue.

E. Rule 1.5

The Court concluded the Respondent violated Rule 1.5.31 There is not clear and


1.5 hinge upon the following predicates:

31 Note the Respondent was charged in the PDRA commencing this case with violations of MLRPC l.5(a) and (b), and the Court did not specify in the Opinion which of the subsections it concluded had been violated. As such, the Respondent generally addresses them together with a single caveat. With respect to any conclusions pertaining to Rule l.5(b), the Respondent maintains the charge pertaining to that rule was unauthorized for the same reason that the charge pertaining to Rule l.2(a) was unauthorized, and as noted supra, and in the December 22nd Brief, any charges pertaining to Rule l .5(b) must be dismissed in any event because the charge was

34

• That the Respondent billed Martin $10,944.50 after her termination of his

services, when he was unable to follow through with her appellate litigation (Op.

at 19-20);

• That Respondent failed to communicate the basis or rate of his fee because he had

never advised Martin of the basis or rate of his fee, other than the original flat rate

stated in the Attorney Engagement Agreement. (Op. at 22);

• That Respondent's fee became unreasonable on the basis that the Respondent

never took any steps to advance Martin's appeal (Op. at 22).

None of these predicates supports a conclusion that the Respondent violated Rule 1.5.

With respect to the first of the factual above, it is clearly erroneous for the reasons outlined in

Factual Exception #A.3 (Except. at 19-21) and Section II.C supra. In short, the Respondent did

not "bill" Martin $10,944.50 after the termination of his services. Rather, in response to

Martin's request, the Respondent provided an accounting statement that merely documented the

time he had spent working on her behalf. The statement employed a lodestar approach (i.e.,

multiplying the number of hours spent working for the client by a reasonable hourly rate for the

type of services provided) in order to assess the value of the services that had been performed.

As explained in footnote 13 on page 20 of the Exceptions, the Court may take judicial notice that

the standard mechanism for assessing the value of services provided to a client. See e.g., Friolo

v. Frankel, 373 Md. 501, 51 l (2003) (citing Hensley v. Eckerhart, 461 U.S. 424 (1983))

(discussing application of the lodestar approach in assessing the amount of the fee payable by the

loser in cases involving fee-shifting statutes). This is necessary any time a flat fee engagement is

terminated early (i.e. , before all the work originally contemplated by the parties at the outset of

unauthorized.

35

the representation is performed). See e.g., Atty. Griev. Comm'n. v. Lang, 2018 Md. LEXIS 446

at *66-67 (2018) (Faulting two attorneys for failing to provide an accounting of hours spent on

services performed following the early termination of a flat-fee representation). Here, the

Respondent did exactly that which he was required to do (i.e., provide Martin, upon her request,

an accounting statement that could be used to assess the value of the services that had been

performed), but yet the trial court and the Petitioner attempt to fault him on the basis that he

provided the accounting statement requested. Very simply, the Respondent's providing Martin

an accounting statement documenting the services he had rendered, in response to her request,

does not support a conclusion that the Respondent violated Rule 1.5.

While it is true that, prior to the time he delivered the accounting statement, the

Respondent never advised Martin about any fees other than the original flat rate stated in the

AEA, the finding does not support a conclusion that the Respondent violated Rule 1.5 because,

as explained in Factual Exception #A.3 (Except. at 19-21), it is undisputed that all the services

the Respondent performed for Martin had a nexus to the custody case and appeal for which the

Respondent was retained and that all these services were to be covered by the flat fee. In other

words, the reason the Respondent did not advise Martin about any fees, other than the original

flat fee stated in the AEA, is that there were no other fees, other than the original flat fee stated in

the AEA because the clearly viewed all the services the Respondent provided as falling within

the scope of the flat fee representation. See e.g., Op. at 14 (finding that the relationship between

the Respondent and Martin was more broad than that literally described in the AEA); Op. at 20,

n. 2 (finding that the Respondent never attempted to collect additional money from Martin).

In sum, the Petitioner is effectively seeking to have this Court hold that it is a violation of

Rule 1.5 to omit language in a fee agreement about some arrangement that is not even

36

contemplated by the parties. Such a holding would be absurd. Very simply, the only fee

arrangement contemplated by the parties in this case was one whereby the Respondent would

handle Martin's custody matter for a flat fee of $10,500, and this is precisely what was

communicated to Martin. The hourly rate only came into play after an event that the parties had

not anticipated (i.e., the Respondent's early termination from the matter) at which point it was

necessary to employ a lodestar approach to assess the value of the services the Respondent had

provided Martin up through the time of his termination. As such, the second of the three

predicates above does not support the conclusion that the Respondent violated Rule 1.5.

With respect to the third predicate listed above, it too is erroneous and does not support a

conclusion the Respondent violated Rule 1.5. Here, the accounting statement reflects, and the

Petitioner has not contested, that Respondent spent over 26.3 working on Martin's behalf, and as

such, even at a modest rate to value the Respondent's time, the Respondent more than earned the

$6,200 that was paid to him, something that was acknowledged by Martin's successor counsel

upon her independent review of the record after Martin terminated the Respondent's services.

See Resp. Ex. 34 at 2. As explained in Factual Exception #A.8 (Except. at 26-27), the evidence

is irrefutable that the Respondent did in fact take actions to advance Martin's interests in the

proceeding for which he was retained.32 Furthermore, the Court expressly found that the

Respondent provided additional legal services to Martin related to the Martin Custody Case

above and beyond those even contemplated in the AEA. Op. at 14 ("[T]he parties' actions

indicate that their actual interaction was more broad [than had been contemplated by the AEA]").

These additional services had been explicitly requested by Martin.

32 The Petitioner does not appear to contest factual exception #A.7.

37

In sum, as the Respondent stated Factual Exception #A.4, it simply is not possible to

conclude that the Respondent's fees were unreasonable without quantifying the value of the

services that were provided. See Except. at 21, n. 16. Here, the Court made no findings actually

quantifying the value of the services provided, and as such, there cannot be not clear and

convincing evidence that the Respondent's fees were "unreasonable" as to support a conclusion

that he violated Rule 1.5.

Finally, for the reasons stated in Section 11.B.3 on pages 10-14 supra, to the extent that

any of the Court's findings regarding MLRPC 1.5 purport to rely upon any variations or





F. Rule l.8(h)

The Court concluded the Respondent attempted to violate Rule l .8(h). There is not clear

and convincing evidence that the Respondent attempted to violate Rule l .8(h). The entire

predicate on which the Court found that the Respondent attempted to violate Rule l .8(h) was that

he purportedly "did not advise Ms. Martin to seek legal representation for the review" of

proposed settlement offer he made her following his termination in March 2015. See Op. at 32.

As Respondent explained in factual exception #A.9 on page 27 of the Exceptions, the finding

was clearly erroneous because the only competent evidence in the record on the subject was

Martin's testimony that the Respondent did advise her to consult her successor counsel regarding

the proposal. Except. at 27 (citing T-667: 18-668:5). The Petitioner has not challenged this

38

exception and it is uncontested. As such, there is not clear and convincing evidence that the

Respondent attempted to violate MLRPC l .8(h).

G. Rule 1.15

The Court concluded the Respondent violated Rule 1.15( a) and/or Rule 1.15( c ). 33 There

is not clear and convincing evidence that the Respondent violated Rule 1.15. The Court's

findings regarding Rule 1.15 hinges upon the following predicates:

• That Martin paid the Respondent $3,000 on December 10, 20 I 4 for the specific

purpose of ordering the transcripts (Op. at 24);

• That the Respondent failed to advise Ms. Martin to seek counsel with regard to

the Attorney Engagement Agreement clause that stipulated the Respondent could

deposit unearned fees in a non-attorney trust account. (Op. at 25);

• That the Respondent failed to maintain Martin's payments in an escrow account

until earned (Op. at 23-25).

With respect to the first of the predicates, it is clearly erroneous for the reasons explained

in the Respondent's Exceptions A.11 (Except. at 29-30), which is incorporated by reference as if

fully set forth herein. It is further directly contradicted by the Court's own undisputed findings

that the entirety of the $6,200 paid by Martin to the Respondent (which included the December

10th Payment) was for his legal services. Op. at 13-14 ("For those services, Ms. Martin paid

the Respondent a total of $6,200.00 of the agreed upon flat fee of $10,500.00") (emphasis

added); Op. at 20 n. 2 ("[A]s of the March 18, 2015 termination of services date, Ms. Martin

33 Note the Court did not specify in the Opinion which of the subsections it concluded had been violated. As such, the Respondent addresses them together.

39

had only paid $6,200.00 for the Respondent's legal services, and not the $10,500.00 as

stated within the Attorney Engagement Agreement"); Op. at 31 ("Ms. Martin paid the

Respondent a total of $6,200 to provide that service") (emphasis added).

With respect to the second predicate, as explained in Factual Exception #A.5 (Except. at

22-23), there was absolutely no evidence in the record regarding whether the Respondent did or

did not advise Martin to seek the advice of independent legal counsel regarding any aspect of the

AEA. Petitioner has not challenged Respondent's Factual Exception #A.5, and it is undisputed.

With respect to the final predicate, it is clearly erroneous for the reasons stated in

Respondent's Factual Exception #A.4 (Except. at 21-22) and in section 11.D on pages 18-20,

supra. As noted in the factual exception, the Respondent never failed to place unearned

payments in a trust account. With respect to all the monies that the Respondent placed into an

operating account, they had been earned as of the time the Respondent placed them in said

account. See pages 18-20 supra. Furthermore, even if this Court were to overrule the

Respondent's factual exception on this point and conclude that the Respondent placed any

unearned monies in an operating account, his doing so would not constitute a violation of Rule

1.15 because, based upon the undisputed evidence in the record, the Respondent had informed

consent from Martin to place any monies she paid him into an operating account.

While it is true that Rule l.15(c) ordinarily requires that an attorney maintain unearned

fees in a trust account, the rule permits other arrangements with the informed consent of the

client. See Atty. Griev. Comm'n. v. Chapman, 430 Md. 238,273 (2013).

"(T]he amount of information that would be required to elicit informed consent may

vary depending on the sophistication and experience of the client" (emphasis added). Snow

v. Bernstein, 2017 Me. Super. LEXIS 20 at *12 (Sup. Ct. Cumberland Co. Me. 2017)

40

(citing ABA Formal Opinion 02-425 and Bezio v. Draeger, 737 F.3d 819,823 (151 Cir. 2013)).

See also Atty. Griev. Comm 'n. v. Lawson, 40 I Md. 536, 564 (2007) (Noting that a sophisticated

consumer of legal services did not require an explanation of the terms of the attorney-client fee

agreement).

Here, the evidence is undisputed that Martin is a sophisticated consumer of legal services

who has specialized knowledge about contracting. T-516:10-22 (Martin testimony that she has a

legal education and has worked authoring guides on contracting for State of Maryland).34 The

AEA in this case was a simple agreement that clearly and unambiguously stated, among other

things, that Martin authorized the Respondent to maintain any monies she paid him in an

operating account, rather than an attorney trust account. Given her level of sophistication and

the plain language of the agreement, Martin's signature on the AEA together with her testimony

that she had reviewed and understood the agreement, confirm that she had provided her informed

consent to the Respondent to maintain any monies she paid him in an operating account.

For the foregoing reasons, there was not clear and convincing evidence that the

Respondent violated Rule I. 15 and the Respondent's exception to the conclusion of law should

be sustained.

H. Rule l.16(d)

The Court concluded the Respondent violated Rule 1.16( d). There is not clear and

convincing evidence that the Respondent violated Rule l.16(d). The Court's findings regarding

Rule 1.16( d) hinge upon the following predicate:

34 Recall also that, although the Court disallowed the Respondent from introducing the evidence on the purported basis that it was not relevant to anything, there was evidence (in the form of the transcript from the Martin Custody Case) to suggest that Martin's significant other is a lawyer. There is also evidence to suggest, from the records of, inter alia, the Martin Custody Case itself, that Martin has substantial experience hiring attorneys.

41

• That the Respondent did not earn all the fees paid to him by Martin, and that he

failed to return the unearned fees to Martin after she terminated his services in

March 2015 (Op. at 26).

The above predicate is clearly erroneous for the same reasons that were explained in the

discussions surrounding the accounting statement in Factual Exception #A.3 (Except. at 19-21)

and the Respondent's having earned the fees placed in his operating account in Factual

Exception #A.4 (Except. at 21-22). In sum, the accounting statement reflects, and the Petitioner

has not contested, that Respondent spent over 26.3 working on Martin's behalf, and as such,

even at a modest rate to value the Respondent's time, the Respondent more than earned the

$6,200 that was paid to him, something that was acknowledged by Martin's successor counsel

upon her independent review of the record after Martin terminated the Respondent's services.

See Resp. Ex. 34 at 2. Furthermore, the Court expressly found that the Respondent provided

additional legal services to Martin related to the Martin Custody Case above and beyond those

even contemplated in the AEA. Op. at 14 ("[T]he parties' actions indicate that their actual

interaction was more broad [than had been contemplated by the AEA]").

Notwithstanding that the evidence is irrefutable that the Respondent provided services of

value to Martin (and thus that he must have earned at least some fees), the Court attempted to

make a conclusory finding that the Respondent did not earn all the fees paid to him without also

making findings about the value of the services provided. In sum, as the Respondent stated

Factual Exception #A.4, it simply is not possible to conclude that the Respondent had not earned

all the fees paid to him without quantifying the value of the services that were provided. See

Except. at 21, n. 16. As such, there simply is not clear and convincing evidence that the

Respondent violated Rule l.16(d).

42

Furthermore, just as the charge pertaining to Rules l .2(a) and 1.5(b) were unauthorized,

as noted supra and in the December 22nd Brief, the charge pertaining to Rule 1.16( d) was also

unauthorized and must be dismissed in any event.

I. Rule 3.3(a)

There is not clear and convincing evidence that the Respondent violated Rule 3.3(a)(l).

The Court's findings regarding Rule 3.3(a)(l) hinges upon the following predicate:

• That Martin specifically paid the Respondent $3,000 on December 10, 2014 for

the transcripts; and therefore, as of the time the Respondent filed the Motion for

Extension of Time in the Court of Special Appeals in February 2015, he was no

longer waiting for Martin's client file to order the transcripts after that time (Op.

at 27).

This predicate is clearly erroneous for the reasons explained in the Respondent's

Exceptions A.11 (Except. at 29-30), which is incorporated by reference as if fully set forth

herein. It is further directly contradicted by the Court's own undisputed findings that the entirety

of the $6,200 paid by Martin to the Respondent (which included the December 101h Payment)

was for his legal services. Op. at 13-14 ("For those services, Ms. Martin paid the Respondent

a total of $6,200.00 of the agreed upon flat fee of $10,500.00") (emphasis added); Op. at 20 n.

2 ("[A]s of the March 18, 2015 termination of services date, Ms. Martin had only paid

$6,200.00 for the Respondent's legal services, and not the $10,500.00 as stated within the

Attorney Engagement Agreement"); Op. at 31 ("Ms. Martin paid the Respondent a total of

$6,200 to provide that service") (emphasis added). Because the predicate underpinning the

Rule 3.3(a)(l) conclusion is clearly erroneous, there is not clear and convincing evidence that the

43

Respondent violated Rule 3.3(a)(l).

Next, for the reasons stated in Section II.B.3 on pages 10-14 supra, to the extent that any

of the Court's findings regarding MLRPC 3.3 purport to rely upon any variations or





Furthermore, just as the charges pertaining to Rules l.2(a), l.5(b), and 1. l 6(d) were

unauthorized, as noted supra and in the December 22nd Brief, the charge pertaining to Rule

3.3(a)(l) was also unauthorized and must be dismissed in any event.

J. Rule 8.l(a)

The Court concluded the Respondent violated Rule 8. l(a). There is not clear and

convincing evidence that the Respondent violated Rule 8. l(a). The Court's findings regarding

Rule 8 .l(a) hinge upon the following predicate:

• That the Respondent made an intentional misrepresentation to Bar Counsel when

he responded to the Martin Complaint and stated that he had not received money

for the transcript order, and that Ms. Martin caused the dismissal of her appeal by

not ordering transcripts (Op. at 30).

As the Respondent made clear in Factual Exception #A.12 (Except. at 30-31), the notion

that the Respondent made intentional misrepresentations to Bar Counsel is clearly erroneous and

is based upon the erroneous finding that Martin specifically paid the Respondent $3,000 on

December 10, 2014 for the transcripts. This predicate is clearly erroneous for the reasons stated

in Factual Exceptions #A. I and A.2 and in section 11.B.2 on pages 8-11 supra. Furthermore, it

44

directly contradicts the Court's own undisputed findings that the entirety of the $6,200 paid by

Martin to the Respondent (which included the December 10th Payment) was for his legal services

and net the transcript. Op. at 13-14 ("For those services, Ms. Martin paid the Respondent a

total of $6,200.00 of the agreed upon flat fee of $10,500.00") (emphasis added); Op. at 20 n. 2




provide that service") (emphasis added). Because Martin never paid the Respondent any

money specifically to order the transcripts, the Respondent's statements to Bar Counsel were not

misrepresentations and the Court's conclusion surrounding MLRPC 8. l(a) is not supported by

clear and convincing evidence.

Next, for the reasons stated in Section 11.B.3 on pages 10-14 supra, to the extent that any

of the Court's findings regarding MLRPC 8.l(a) purport to rely upon any variations or





Furthermore,just as the charges pertaining to Rules l.2(a), l.S(b), l.16(d), and 3.3(a)

were unauthorized, as noted supra and in the December 22nd Brief, the charge pertaining to Rule

8. l(a) was also unauthorized and must be dismissed in any event.

K. Rule 8.4

l. Rule 8.4(d)

45

The Court concluded the Respondent violated Rule 8.4(d). There is not clear and

convincing evidence that the Respondent violated Rule 8.4(d). The Court's findings regarding

Rule 8.4( d) appear to hinge upon the following predicates:

• That the Respondent failed to take any meaningful action to advance Martin's appeal (Op. at 31);

• That the Respondent caused the dismissal of Martin's appeal due to failure to order the transcripts (Op. at 31);

• That the Respondent failed to maintain Martin's funds in escrow until earned (Op. at 31 );

• That the Respondent generated an invoice based upon a fee formula not in the AEA (Op. at 31);

• That the Respondent engaged in conduct toward Martin, the Court of Special Appeals and Bar Counsel that was prejudicial to the administration of justice (Op. at 31-32).

All the predicates above are erroneous and fail to support a conclusion that the

Respondent violated MLRPC 8.4(d). With respect to the first of the predicates above, it was

clearly erroneous for the reasons explained in Factual Exception #A.8 (Except. at 30-31), which

was further discussed supra in the analysis pertaining to Rule 1.5.

With respect to the second of the predicates above, it was clearly erroneous for the

reasons explained in Factual Exception #A.7 (Except. at 25) and section ILE on pages 21-23,

supra, which were further discussed supra in the analysis pertaining to Rule l.2(a).

With respect to the third of the predicates above, it was clearly erroneous for the reasons

explained in Respondent's Factual Exception #A.4 (Except. at 21-22) and in section 11.D on

pages 18-20, supra, which was further discussed supra in the analysis pertaining to Rule 1.15.

46

With respect to the fourth of the predicates above, it was clearly erroneous for the reasons

explained in Factual Exception #A.3 (Except. at 19-21) and in section 11.C on pages 16-17, supra,

which was further discussed supra in the analysis pertaining to Rules 1.4 and 1.5.

With respect to the fifth of the predicates above, it is wholly conclusory and provides no

basis or additional explanation for how the Respondent's toward Martin, the Court of Special

Appeals or Bar Counsel was prejudicial to the administration of justice. In any event, to the

extent the Court may have intended to base this assertion on its findings that the Respondent

made misrepresentations to either Martin, COSA, or Bar Counsel, each of those findings was

clearly erroneous for the reasons explained in Factual Exception #A. I I (Except. at 29-30), A.12

(Except. at 30-31), and #A.13 (Except. at 31), respectively, as also discussed supra in the analysis

pertaining to Rules 3.3(a) and 8.1 (a), and as further discussed infra in the analysis pertaining to

MLRPC 8.4(c). For these reasons, the predicates above do not support the conclusion that the

Respondent violated MLRPC 8.4(d), and the Respondent's exception regrading that rule should

be sustained.

2. Rule 8.4( c)

The Court concluded the Respondent violated Rule 8.4(c). There is not clear and

convincing evidence that the Respondent violated Rule 8.4(c). The Court's findings regarding

Rule 8.4(c) hinge upon the following predicates:

• That the Respondent made intentional misrepresentation to the Court of Special

Appeals (Op. at 31)

• That the Respondent made an intentional misrepresentation to Bar Counsel (Op.

at 31).

• That the Respondent made intentional misrepresentation to Martin ( Op. at 31)

47

Each of these predicates is clearly erroneous for the reasons fully explained in

Respondent's Factual Exceptions #A.11 (Misrepresentation to COSA) (Except. at 29-30); #A.12

(Except. at 30-31) (Misrepresentations to Bar Counsel), and #A.13 (Except. at 31)

(Misrepresentations to Martin). Furthermore, each of these findings hinges upon the notion that

Martin specifically paid the Respondent $3,000 on December 10, 2014 for the transcripts. This

predicate is clearly erroneous for the reasons stated in Factual Exceptions #A.1 and A.2 and in

section 11.B.2 on pages 8-11 supra. Furthermore, it directly contradicts the Court's own

undisputed findings that the entirety of the $6,200 paid by Martin to the Respondent (which

included the December 101h Payment) was for his legal services and not the transcript. Op. at 13-

14 ("For those services, Ms. Martin paid the Respondent a total of $6,200.00 of the agreed

upon flat fee of $10,500.00") (emphasis added); Op. at 20 n. 2 ("[A]s of the March 18, 2015

termination of services date, Ms. Martin had only paid $6,200.00 for the Respondent's legal

services, and not the $10,500.00 as stated within the Attorney Engagement Agreement");

Op. at 31 ("Ms. Martin paid the Respondent a total of $6,200 to provide that service")

(emphasis added). Very simply, because Martin never paid the Respondent any money

specifically to order the transcripts, the Court's conclusions regarding Rule 8.4(c) were not

supported by clear and convincing evidence.

3. Rule 8.4(a)

There is not clear and convincing evidence that the Respondent attempted to violate Rule

8.4(a). Rule 8.4(a) is a catch-all provision that is violated whenever an attorney violates or

attempts to violate another MLRPC. In this case, there were two bases upon which the Court

purported to find a violation of Rule 8.4(a):

• That Respondent violated the other MLRPC listed above (Op. at 31)

48

• That Respondent attempted to violate MLRPC 1.8(h) (Op. at 32)

For the reasons set forth above, both of the bases upon which the Court purported to find

a violation were not correct, and as such, the Respondent did not violate Rule 8.4(a), and his

exception to the conclusion of law regarding said violation should be sustained.

Furthermore,just as the charges pertaining to Rules 1.2(a), l.5(b), 1.16(d), 3.3(a), and

8. l(a) were unauthorized, as noted supra and in the December 22nd Brief, the charge pertaining

to Rule 8.4(a) was also unauthorized and must be dismissed in any event.

Finally, for the reasons stated in Section 11.B.3 on pages 10-14 supra, to the extent that

any of the Court's findings regarding MLRPC 8.4 purport to rely upon any variations or





L. Aggravating Factors

The Court cites absolutely no facts in support of its conclusions regarding any of the

aggravating factors listed on page 33 of the Opinion. The Respondent excepts to each of the

aggravating factors listed with the sole exception that he has a prior disciplinary offense.

M. Mitigating Factors

In this case, the Respondent excepts to the trial court's failure to find the mitigating

factors of ( 1) Absence of a dishonest or selfish motive; and (2) Delay in disciplinary

proceedings. 35 Any conduct at issue in this case is also mitigated as a result of the Edsall Issue

35 For among other reasons, the delay in the disciplinary proceeding is an especially important

49

because, as a matter of law, Martin's legal rights vis a vis the pursuit of an appeal of the Custody

Order were not actually prejudiced by any actions of the Respondent.

IV. RESPONSE REGARDING RECOMMENDATION FOR DISPOSITION AND REQUEST FOR REMAND

In the Reply, Petitioner did not address the Respondent's recommendation that this

matter be dismissed due to Thompson's egregious withholding of documents and discovery

misconduct. Most tellingly, neither the Petitioner nor Thompson have ever denied the

misconduct alleged by the Respondent, including, among other things ( 1) Thompson's failure to

provide a privilege log or notify the Respondent about the existence of documents she was

withholding pursuant to a claim of privilege or protection, as required by Md. Rule 2-402(e)(l);

(2) Thompson's failure, after having been directed to do so by the trial court, to list all the

documents she withheld on the Privilege Log;36 and (3) Thompson's having misled the trial court

to believe that she had listed all the withheld documents on the Privilege Log. See T-540:3-10

(Thompson representation in open court that the Privilege Log was complete and listed all the

withheld documents); T- 1092:25- 1093: 1 (The Court stated that it had understood Petitioner to

have represented the Privilege Log was complete).

issue in this case because, by her own admission, Martin had some difficulty recollecting some of the events in question given the amount of time that had passed between when the events occurred and the trial in this case. T-781 :20-782: 1; T-880: 15-17; As such, the Respondent was prejudiced by the delay because the witness' recollection of events was not the same as it would have been had the proceeding been brought sooner. See Atty. Griev. Comm 'n. v. Braskey, 378 Md. 425,444 (2003) (Recognizing that delay in the disciplinary proceeding can be prejudicial to a respondent and even constitute the basis for a due process violation when it impairs the respondent's ability to mount a defense).

36 See Mtn. to Compel at 22 (Table 2).

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In Atty. Griev. Comm 'n. v. Donnelly, 458 Md. 237, 271 (2018), this Court described

alleged discovery violations on the part of Bar Counsel as .. troubling." The Court went on to note

that the Petitioner is subject to discovery sanctions under Md. Rule 2-433, including being

precluded from asserting claims in a disciplinary case. Id. at 269. Indeed, the uncontroverted

allegations of discovery misconduct on the part of Bar Counsel in this case is far more serious

and "troubling" than were the allegations in Donnelly. This Court should not ignore (and thus

condone) Thompson's discovery misconduct and concealment of evidence. As such, it should

exercise its discretion and impose, upon the Petitioner, the very type of sanctions contemplated

in Donnelly by dismissing all of the Petitioner's charges in this case.

In the first alternative, the Court should dismiss this case on its merits, since there is no

clear and convincing evidence that the Respondent committed any violations of the MLRPC.

Finally, in the second alternative, this Court should remand this case to the Circuit Court

for Prince George's County for a new trial or supplemental hearing to consider, among other

things, the Respondent's phone records, the November 3rd Email, and the testimony of additional

witnesses that the Respondent is prepared to call. Although the Petitioner attempted to

marginalize the importance of the newly-discovered evidence, such as the phone records, by

suggesting that it is merely cumulative and could not be material, the Petitioner is grossly

mistaken. IN this case, for example, the phone records are critically important not merely

because they document the number of calls between the Respondent and Martin (an estimate of

which is in the record), but because they document the precise date, time and duration of such

calls. It is the latter that make the phone records so vital for consideration.

Contrary to the Petitioner's contention that they could not be material to any of the

conclusions in this case, they most certainly could. Recall in this case that the trial court did not

51

Jason

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consider the December 10th Telephone Call in its findings. Recall also that the Court concluded

that as of December 10, 2014, the Respondent could no longer have been waiting to obtain

Martin's client file from Stevens. Thirdly, recall Martin testified that she told the Respondent in

a telephone call that she believed the transcripts were in Stevens' file. There have not yet been

any findings as to the date of the telephone call on which Martin told the Respondent the

transcripts were in Stevens' file, but this is a critically important fact that could be dispositive to

the legal conclusions in this case. If, for example, it was during the December 10th Telephone

Call that Martin told the Respondent that Stevens had the transcripts (and thus, that he should get

the file from Stevens prior to ordering the transcripts), then it would not only negate the Court's

finding regarding the purpose of the December 10th Payment, but would also completely negate

many of the Court's legal conclusions stemming from the delay in ordering the transcripts

following December 10, 2014 (e.g., the conclusion on page 27 of the Opinion that the

Respondent's receipt of the December 10th Payment suggested that he was no longer waiting for

the file from Stevens after December 10, 2014, and therefore, that he made an intentionally false

statement to COSA in the Motion for Extension when he stated that the delay in ordering the

transcripts was attributable to the delay in his obtaining the file from Stevens). Hence, additional

evidentiary proceedings are necessary to, among other things, consider the Respondent's phone

records and establish the date of the telephone call during which Martin told the Respondent that

the transcripts were in Stevens' file. Hence, the Court, in the second alternative, should remand

this case.

52

Jason

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DATED: OCTOBER 2 2018

53

Respectfully submitted,

ason E. Rheinstein CPF No. 0512150087 P.O. Box 1369 Severna Park, MD 21146 (410) 491-7900 (t) (410) 647-6135 (f) jason@jcr-con~ulting.com

Attorney for Respondent

I HEREBY CERTIFY on this 2nd day of October, 2018, ac MDEC, on all counsel of record.

CERTIFICATION PURSUANT TO RULE 20-201

I HEREBY CERTIFY on this 2nd day of October, 2(f that the foregoing document does not contain any restricted information in accordance with Md.

54

EXHIBIT 2



Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

No. 16-BG-633

IN RE BRANDI S. NAVE, RESPONDENT.

A Suspended Member of the Bar of the District of Columbia Court of Appeals

(Bar Registration Number 490964)

On Report and Recommendation of the Board of Professional Responsibility

(BDN-234-10, BDN-308-12, BDN-128-13 & BDN-186-13)

(Argued October 17, 2017 Decided November 29, 2018) Brandi S. Nave, pro se. Hamilton P. Fox, III, Disciplinary Counsel, with whom Wallace E. Shipp, Jr., Disciplinary Counsel at the time the briefs were filed, and Jennifer P. Lyman, Senior Assistant Disciplinary Counsel, were on the brief, for the Office of Disciplinary Counsel. Before THOMPSON and BECKWITH, Associate Judges, and FARRELL, Senior Judge. Opinion for the court PER CURIAM.

Dissenting opinion by Senior Judge FARRELL at page 25. PER CURIAM: The court’s original opinion in this matter was issued on

March 8, 2018. After its issuance, respondent Brandi Nave petitioned for

rehearing and rehearing en banc. On June 21, 2018, an order denying the petitions

OOluyemi

Stamp

Jason

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2 was issued prematurely and, we have determined, improvidently. Accordingly, the

order of June 21, 2018, denying respondent’s petition is hereby withdrawn. Upon

consideration by the full Division of the petition for rehearing, a majority of the

Division has determined to grant the petition1 and to issue this amended opinion.2

The opinion reported at 180 A.3d 86 (D.C. 2018) is hereby vacated. The petition

for rehearing en banc is denied as moot.

I.

1 We have not simply “changed our mind,” as our dissenting colleague

suggests. Post at 25. Rather, we have acted upon a recognition that, as respondent pointed out in her Petition for Panel Rehearing, the original majority opinion and concurrence, like the Hearing Committee and the Board on Professional Responsibility (the “Board”), “overlooked and misquoted material [portions of] [r]espondent’s testimony.”

2 Before the court had determined to withdraw the prematurely issued order,

respondent filed a motion to reconsider the denial of her petitions (the “motion to reconsider”); at the court’s direction Disciplinary Counsel filed a response in opposition; and, without leave of court respondent lodged a reply to that response. The lodged reply is hereby stricken as procedurally improper. We also decline to consider respondent’s now-moot motion to reconsider. We do note, however, that the persistence it reflects is rooted in the same concern — i.e., that the Hearing Committee, the Board, and this court misconstrued some of the evidence — that has caused the Division to issue this amended petition.

Jason

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Jason

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3

The Board recommends that this court disbar respondent from the practice of

law in the District of Columbia on the ground that on multiple occasions she

violated Rules 1.15 (a), 1.15 (c), and 1.15 (d) of the Rules of Professional Conduct

and that she intentionally misappropriated entrusted funds. We reject the

recommendation to disbar respondent because we conclude that the finding that

she misappropriated funds is not supported by clear and convincing evidence. We

accept the Board’s conclusion that respondent violated Rule 1.15 (a) by failing to

place the funds of a third party in trust, violated Rule 1.15 (c) by failing to deliver

promptly funds that a third party was entitled to receive, and violated Rule 1.15 (d)

by failing to timely distribute funds.3 For that misconduct, we impose a one-year

suspension.

II.

3 Disciplinary Counsel also charged that respondent violated Rule 8.4 (c),

asserting that she was “dishonest with the health care providers by failing to make promised payments or by paying years later.” The Hearing Committee did not find clear and convincing evidence of dishonesty. Disciplinary Counsel did not file an exception to that determination, and the Board found it unnecessary to discuss the issue.

4 Respondent’s charged conduct relates to her representation of clients in

personal injury matters, which typically followed a common pattern in her “high-

volume” practice. Namely, respondent’s clients received medical treatment from a

chiropractor and signed (along with respondent) the medical provider’s

authorization and assignment (“A&A”) form creating liens on the proceeds of any

settlement amounts received by the client-patients from insurers. Respondent

would then gather the medical records and expenses, put together a demand

package to send to the insurance company, and negotiate a settlement with the

involved insurance carrier, which would typically offer to settle the claim in an

amount sufficient to pay some but not all of the chiropractor’s bills. The final

settlement typically reflected a reduction of the medical bills by the treatment

providers.

During the time period at issue, respondent referred her personal injury

clients to two different chiropractors or chiropractor clinics, Dr. Mohammed

Yousefi and Medical Support Services (“MSS”). Providers’ complaints about

respondent’s failure to timely make payments to them led to an investigation by

Disciplinary Counsel and then to proceedings before Hearing Committee No. 5 and

the Board. The Board and Hearing Committee recounted the evidence that in some

5 cases years passed between the chiropractor’s agreement to a reduced payment or

the client’s approval of a proposed settlement and respondent’s actual disbursal of

funds to the chiropractor, and that in many cases respondent paid the chiropractors

months or even more than a year after she paid settlement amounts to the clients-

patients following her receipt of funds from the insurance companies. The Hearing

Committee, whose factual findings the Board accepted, found that respondent’s

“standard practice was to ignore the fiduciary duty she accepted by signing the

A&As and to engage in post-settlement hard bargaining with third parties to whom

she owed an ethical obligation,” essentially using her delay in paying bills “as

leverage to resolve all outstanding matters.” In addition, in at least one case,

respondent delayed depositing an insurance company check for two years, i.e., so

long that she had to request a replacement check.

The Board’s and Hearing Committee’s conclusion that respondent violated

Rule 1.15 by failing to make timely payments does not necessitate extended

discussion. The Board found that respondent made “utterly meritless excuses for

6 her failures promptly to pay her clients’ medical providers.”4 The Hearing

Committee found that respondent “demonstrate[d] an appalling callousness

towards the duty she owed to the doctors.” Upon our review of the record, we

agree that Disciplinary Counsel proved by clear and convincing evidence that

respondent, through her payment practices with respect to the chiropractors,

violated her obligations under Rule 1.15 (a), (c), and (d).

III.

We conclude, however, that Disciplinary Counsel did not meet its burden of

proof as to the charge of misappropriation. Misappropriation is “any unauthorized

use of [a] client’s funds entrusted to [the lawyer], including not only stealing but

also unauthorized temporary use for the lawyer’s own purpose, whether or not [the

lawyer] derives any personal gain or benefit therefrom.” In re Anderson, 778 A.2d

330, 335 (D.C. 2001) (internal quotation marks and citation omitted); In re Abbey,

169 A.3d 865, 869 (D.C. 2017) (involving misappropriation of funds that were to

be paid to clients’ medical providers). One circumstance in which

4 Respondent claimed, for example, that she had identified a variety of billing irregularities that she needed to resolve before paying the medical providers.

7 misappropriation occurs is “when the balance in [the lawyer’s] trust account falls

below the amount due [to] the client” or third persons to whom the client is

indebted. In re Ahaghotu, 75 A.3d 251, 256 (D.C. 2013) (internal quotation marks

omitted).5

The Hearing Committee found “no evidence that [respondent] withdrew any

money [from her trust account] for her own use.”6 The Board and the Hearing

Committee both concluded, however, that during the period from October 5–8,

2012, and again on October 16, 2012, respondent’s trust account balance fell below

the cumulative amount of $41,893 owed to Dr. Yousefi and MSS. Disciplinary

5 “Funds of clients or third persons that are in the lawyer’s possession (trust

funds) shall be kept in one or more trust accounts[.]” District of Columbia Rule of Professional Conduct 1.15 (a) (emphasis added).

6 In reaching its conclusion about intentional misappropriation, however,

the Board did consider Dr. Yousefi’s testimony to the effect that respondent had made statements to him about using funds owed to providers to pay legal expenses she had incurred in contentious personal litigation in which she was involved. Respondent disputed Dr. Yousefi’s allegation. The Hearing Committee found Dr. Yousefi’s testimony “credible,” but observed that Dr. Yousefi “did not purport to have such knowledge of [r]espondent’s finances to make this statement based upon anything other than a logical assumption” and concluded that “Dr. Yousefi’s assumption is not clear and convincing evidence sufficient to support a finding of intentional misappropriation.” The Hearing Committee did not find by clear and convincing evidence that respondent misused funds owed to Dr. Yousefi.

8 Counsel offered evidence that on those dates (the “putative out-of-trust dates”),

respondent’s trust account held less than $37,000, when no disbursements for those

cases had yet been made to the providers.

The Board recognized that to proceed as Disciplinary Counsel did “on the

‘account balance’ theory of proof, Disciplinary Counsel must show that the

attorney actually deposited entrusted funds into escrow.”7 The Board also

recognized that “the most appropriate means of proving [that] entrusted money

[wa]s placed in an escrow account” is “direct proof” of individual deposits, a

methodology that the Board said is the methodology it “expect[s] Disciplinary

Counsel regularly to employ.” The Board found, however, that Disciplinary

Counsel had offered such direct evidence in only “six” of the “19 selected cases”

Disciplinary Counsel relied on to prove misappropriation (based on the aggregate

trust account balance and outstanding-payment-owed-to-providers approach). As

the Board noted, the Hearing Committee “felt unable to determine exactly when

[r]espondent received settlement payments from the insurance carriers.”

7 The Board cited In re Edwards, 808 A.2d 476, 484 (D.C. 2002) (“The fact

that the balance in the escrow account fell below $ 430.86, the amount [that was to be paid to a third-party on behalf of client White] is without significance because the White money was not deposited in that account.”).

9

Whether Disciplinary Counsel proved by clear and convincing evidence that

respondent had actually received checks from the insurance companies as to all of

the “19 selected cases” by the putative out-of-trust dates was a central issue during

oral argument before the Board.8 Disciplinary Counsel’s theory was that “the date

of the settlement sheet [or “client disbursement sheet” signed by respondent’s

clients] equates to the date that [respondent] had the funds in her possession.” A

Board member recognized, however, that “the full and final settlement date is

usually the date of the release[,] . . . not the [date of the] disbursement sheet,” and

Disciplinary Counsel acknowledged that the releases were not introduced into the

record. Respondent’s counsel told the Board that the evidence thus did not allow

the Board to “know when the insurance company cut the check, . . . when they sent

it [to respondent], and . . . when Ms. Nave deposited it.”

In its Report and Recommendation, the Board found that “[t]here is no

ambiguity as to the dates upon which [r]espondent received the settlement monies

8 We do not, as our colleague states, dismiss the Board’s reliance on respondent’s representation that she timely deposited all settlement funds in her trust account. Post at 26. Our concern is with when respondent received the settlement funds for certain clients as to whom the record contains no evidence from which the date of receipt can be convincingly inferred.

10 in any of the[] cases, because her Answer to the Specification of Charges . . .

unequivocally,” “definitively,” and “clearly and convincingly” established the

dates. The Board’s statement was a reference to the fact that, in her Answer,

respondent admitted that she received insurance checks “on or about” specified

dates, all of which were prior to the October 2012 putative out-of-trust dates. For

example, respondent admitted in her Answer that “[o]n or about June 13, 2012,

[she] settled a case on behalf of her client, Latia Proctor, and received settlement

funds totaling $7,000”; that “[o]n or about June 19, 2012, [she] settled a case on

behalf of her client, DeAngelo Wooten, and received settlement funds totaling

$6,800”; and that “[o]n or about July 3, 2012, [she] settled a case on behalf of her

client, Ayonia Allen, and received settlement funds totaling $16,500.”

We reject the Board’s analysis on this point. To begin with, respondent filed

her Answer before she knew that Disciplinary Counsel would attempt to prove his

misappropriation theory on the basis of the account balance methodology rather

than through what the Board termed “the most appropriate” means of proof, “direct

proof of individual deposits,” the methodology the Board “expect[s] Disciplinary

Counsel regularly to employ.” Respondent had no reason to know that more

precision in her answers about dates was critical (and, if her records were in the

11 “disarray” Disciplinary Counsel asserted, she may not have known the precise

dates when payments were received).

Further, this court’s case law establishes that “the phrase ‘on or about’

encompasses more than the days immediately before and after the date alleged in

[a charging document].” In re E.H., 967 A.2d 1270, 1274 n.6 (D.C. 2009) (citing

Williams v. United States, 756 A.2d 380, 389 (D.C. 2000)); see also Ingram v.

United States, 592 A.2d 992, 1007 (D.C. 1991) (“When an indictment charges that

the offense occurred ‘on or about’ a certain date, . . . a defendant is on notice that a

particular date is not critical.”). At least in some circumstances, “on or about” can

cover a period several months before or after the date specified. See, e.g., Pace v.

United States, 705 A.2d 673, 677–78 (D.C. 1998) (no prejudicial variance between

indictment and evidence at trial when indictment charged that offense occurred on

or about April 1994 and evidence at trial established that offenses occurred

sometime during five-month period between late December 1993 and late May

1994).

Accordingly, and especially in light of what Disciplinary Counsel

characterized as “the total disarray of [r]espondent’s records,” we conclude that

12 respondent’s admissions to “on or about dates” cannot be taken as clear and

convincing evidence that she had received insurance checks relating to all of the 19

cases before the putative out-of-trust dates. Respondent is correct that, as to most

of the cases on which the Board relied for its conclusion of misappropriation,

“[t]he record is devoid of evidence of the actual dates [o]n which insurance checks

were received and deposited[.]”

Unable to determine in most cases the exact dates when respondent received

settlement payments from the insurance carriers or when clients were paid, the

Hearing Committee “looked to the dates of the [client] disbursement sheets” that

respondent’s clients signed to approve proposed settlement amounts and

payments.9 and the Hearing Committee reasoned that respondent must have

received the insurance payments and thus should have paid the providers within 90

days of the signed settlement sheet dates. Citing but misstating respondent’s

9 The Board found that the client disbursement sheets were “documents reflecting the financial components of each settlement, containing the client’s explicit approval of the disposition of settlement funds.”

Testifying about one of the client disbursement sheets, respondent explained

that the document was “what we prepare for the client to give them a full view of what to expect if the case is settled. . . . [I]t just gives the client a full view of, if everything pans out correctly, . . . [of] the amount that [the client] will be receiving.”

13 testimony, the Hearing Committee stated that “[r]espondent testified that the

settlement check [from the insurers] may not be received for up to two weeks after

the client signs the [c]lient [d]isbursement sheet and that the actual deposit can take

a few more days.” On that basis, and on the ground that there were signed client

disbursement sheets in each of the 19 cases well before to October 5, 2012 (the

earliest of the putative out-of-trust dates), the Hearing Committee found clear and

convincing evidence that the settlement checks in all 19 cases relied on by

Disciplinary Counsel as evidence of misappropriation “were received and should

have been in [r]espondent’s trust account prior to October 5, 2012.”

It is true that in five cases the date of the signed settlement sheet and the date

when respondent paid her client (and thus, it can reasonably be inferred, must have

already received the insurance check) were only several days apart. For example,

the Hearing Committee found and the documentary evidence shows that client

Tiffany Quarles signed the Client Disbursement sheet accepting a net disbursement

of $4,523.29 on January 27, 2012, and that she received her check a week later.

The Hearing Committee found and the documentary evidence shows that Client

K’Vonte Petty signed her disbursement sheet on March 14, 2012, and received her

check on March 23, 2012. The evidence was similar as to clients Tony Jones

14 (check received four days after client signed disbursement sheet), Barbara Brown

(check received nine days after client signed disbursement sheet), and Ishara

Cormack (check received nine days after client signed disbursement sheet).

However, the Hearing Committee found that evidence was presented regarding

when respondent’s clients were paid in only those five of the 19 cases.10 Thus, for

the majority of cases, the record does not permit an inference that insurance

company payments were received by the date the client signed, or within days of

the client’s signing, the client disbursement sheets. Substantial evidence does not

support the Board’s finding that in all 19 cases, the signed disbursement sheets

“evidence[d] [respondent’s] actual receipt of funds.”

Nor does respondent’s testimony support that conclusion. As noted above,

see supra n. 1, and as respondent’s petition for rehearing emphasizes, the Hearing

Committee misstated respondent’s testimony. Respondent testified that “it could

be ten, fourteen days” between when the client signed the “release” (not when the

client signed the disbursement sheet, as the Hearing Committee misstated) and

when the check was received from the insurance company. Respondent further

10 Moreover, the Board found that there was direct evidence as to when respondent deposited insurance company checks in escrow in only six cases.

15 testified that with respect to “the majority of the insurance companies,” “the

release [not the client disbursement sheet, as the Hearing Committee misstated] is

signed after the check is received[,]” noting that “the insurance company may send

the check with the release.11 (Our original opinions, too, failed to appreciate the

distinction respondent drew in her testimony between a “release” and a

“disbursement sheet” signed by the client.) Thus the testimony not does support

the Hearing Committee’s statement that in every case, “[o]nce the client had signed

[the client disbursement sheet signifying] his or her acceptance of the net

disbursement in ‘full and final settlement,’ the amounts listed on the [c]lient

[d]isbursement sheets for payment to medical providers became third-party

property captive in [r]espondent’s escrow account.”12 It likewise does not support

the Board’s statement that “[r]espondent deposited the last of the relevant

11 Respondent’s testimony also suggested why, in some cases, very little

time passed between when the client signed the disbursement sheet and when the client was paid. Respondent testified that “[s]ometimes we have the [insurance check when the client signs off on the disbursement sheet], sometimes we don’t.”

12 Respondent explained in her testimony to the Hearing Committee that the

existence of a disbursement sheet did not always mean that there had been a settlement. Sometimes, respondent explained, she would propose a settlement to the client and only thereafter receive a final offer from the insurance company. Respondent testified that the date the client signed the “disbursement sheet” was not “[t]he full and final settlement date.” The Hearing Committee did not discredit any of this testimony.

16 settlement funds in her escrow account within three or four days after August 1,

2012[.]” Further, it is not true that “[u]ntil the post-hearing briefs, [r]espondent

never raised any doubt about when she actually received the money she was

required to hold in trust for her clients’ medical providers.” Post at 27.

Respondent testified, for example, that there were cases in which “the settlement

check was not in our office” because “we hadn’t even finished negotiating.” We

do not at all suggest that the Hearing Committee and the Board were required to

credit respondent’s testimony in that regard or to credit her testimony

distinguishing client disbursement sheets from releases, but they (and we) were not

entitled to misstate her testimony; and, having heard respondent’s testimony that a

signed client disbursement sheet did not necessarily mean that payment by the

insurance company had been made or was imminent, and that in some cases

insurance checks had not been received by the putative out-of-trust dates even

though the client disbursement sheet had been signed, Disciplinary Counsel was on

notice that it needed to prove that respondent had actually received the funds

Disciplinary Counsel alleged should have been in her escrow account of the out-of-

trust dates.

17

Disciplinary Counsel had the burden of proving misappropriation by clear

and convincing evidence. See, e.g., In re Gilchrist, 488 A.2d 1354, 1357 (D.C.

1985). This stringent standard “expresses a preference for the attorney’s interests

by allocating more of the risk” of an erroneous conclusion to Disciplinary Counsel.

In re Allen, 27 A.3d 1178, 1184 (D.C. 2011) (internal quotation marks and

brackets omitted). Clear and convincing evidence is “evidence that will produce in

the mind of the trier of fact a firm belief or conviction as to the facts sought to be

established.” In re Cater, 887 A.2d 1, 24 (D.C. 2005) (quoting In re Dortch, 860

A.2d 346, 358 (D.C. 2004)).

As already described, here, Disciplinary Counsel attempted to prove

misappropriation by showing that by August 1, 2012, respondent owed the medical

providers an aggregate of $41,893 for nineteen selected cases, but, on the dates of

October 5–8 and October 16, 2012, had a balance in her trust account of no more

than $36,780 even though she had not yet paid the providers. The amounts that

Disciplinary Counsel asserted, and the Board found, should have been in

respondent’s trust account on those dates are shown on a table on page 37 of the

Board’s Report, which also contains the names of the clients for whom chiropractic

services had been provided. The Board found that by the putative out-of-trust

18 dates, respondent had received checks from insurance companies to pay the

amounts shown on the table and had deposited the checks in her escrow account.

For the reasons discussed below, we conclude that the Board’s finding is not

supported by clear and convincing evidence.

We have focused our analysis on the clients listed on page 37 of the Board’s

report (all MSS patients) who, the Hearing Committee found, signed client

disbursement sheets in 2012 prior to the October out-of-trust dates and on whose

behalf respondent had not paid MSS by those dates. As to clients Tiffany Quarles,

K’Vonté Petty, Barbara Brown, Bernadine Ramsey, Ishara Cormack, Leroy Stroy,

and Dajuan Gant, the record contains evidence that they received their settlement

disbursements by sometime in August 2012. Specifically, the record contains

either their signed receipts verifying their receipt of a settlement check, or

notations by an MSS investigator memorializing the client’s (or a relative’s)

confirmation that the client received a settlement check by August 22, 2012 (or, in

the case of Stroy, a notation about a “[d]isbursement received on July 19, 2012”).

By contrast, as the Hearing Committee found, the record “does not identify”

when clients Latia Proctor, DeAngelo Wooten, and Ayonia Allen received their

19 settlement checks. The table on page 37 of the Board’s Report indicates that

respondent owed chiropractors $2,400 as to Ms. Proctor, $2,400 as to Mr. Wooten,

and $1,000 as to Ms. Allen. The record also shows that Ms. Proctor and Mr.

Wooten’s telephone numbers were either “disconnected” or the “wrong number,”

that Ms. Allen did not return telephone calls, and that an MSS investigator working

on August 22, 2012, was unable to reach these clients (and thus was unable to

verify, as the investigator did with some other clients, that they had received their

checks by that date).

Further, there is no record basis for the Board’s finding that respondent

“received the $7,000 settlement payment for [Ms. Proctor’s] claim on June 13,

2012, when the client . . . signed a disbursement sheet”; no record basis for the

Board’s statement that respondent “received a settlement payment of $6,800 [for

Mr. Wooten’s claim] on June 19, 2012[,]” when Mr. Wooten signed a

disbursement sheet; and no record basis for the Board’s statement that

“[r]espondent received $16,500 in settlement funds on July 3, 2012 [for Ms.

Allen’s claim].”

20

In addition, the record provides a basis to question whether respondent

received funds relating to these three clients by the putative out-of-trust dates. The

Hearing Committee heard evidence showing that in November 2012, Erik Tyrone,

an attorney for two of the chiropractors who provided services to respondent’s

clients through MSS, “signed a number of documents authorizing . . . reduction[s]

in the [provider’s] bill[s]” for Ms. Proctor, Mr. Wooten, and Ms. Allen (and some

other clients). Respondent explained — in testimony that the Hearing Committee

did not discredit — that “[i]n most cases [in which Mr. Tyrone signed off on

reductions] we hadn’t even finished negotiating . . . . So, no, the settlement check

was not in our office” (with the result that respondent “couldn’t pay [herself]

either”).13 If, by the putative out-of-trust dates, respondent had not yet received

from the insurance companies the total of $5,800 owed to the medical providers for

services provided to Ms. Proctor, Mr. Wooten, and Ms. Allen, that would eliminate

the putative out-of-trust amounts of $5,113 and $5,210.

13 Respondent further testified, “[T]here were cases that were not settled, that we could not settle, until we had these reductions signed by Mr. Tyrone.” Whether or not respondent was correct that this was the circumstance in most cases, the record does indicate that some of the clients (specifically, Brown, Cormack, and Gant) as to whom Mr. Tyrone authorized billing reductions in November 2012 had been paid their settlement amounts well before that date.

21

We note in addition that, regarding both the Proctor and Wooten cases, the

Hearing Committee found that the record “does not identify the amount of the

reduction[s]” to which MSS had agreed. (The Proctor and Wooten cases are the

only cases among the 19 selected cases as to which the Hearing Committee made

such a finding.) Thus, the record does not indicate whether MSS and respondent

had agreed on the reduction amounts shown on the client disbursement sheets these

clients signed, and it leaves open the possibility that post-signed-disbursement-

sheet negotiations with MSS continued or were necessary to achieve a final

settlement agreed to by all. What the record does show is that it was not until

November 2012 that MSS corrected an administrative error that that had caused

the MSS bill for X-rays for Ms. Proctor and Mr. Wooten to be overstated. The

November 26, 2012, billing adjustment forms that Mr. Tyrone signed state that

“Client disputes X-ray bill” and in Mr. Wooten’s case state that “X-Ray report was

never sent to attorney despite several requests.” Further, regarding the Proctor

case, the record shows that Mr. Tyrone purported to reinstate an MSS reduction

that had been “rescinded before [the] client signed [a] release.”14 These items of

14 The record does not support the Hearing Committee’s statement that

respondent “false[ly]” asserted that MSS had rescinded the reduction before Ms. Proctor signed the release. The Hearing Committee was apparently comparing the date when Ms. Proctor signed a client disbursement sheet (June 13, 2012) — not a

(continued…)

22 evidence suggest that the Proctor and Wooten cases may have been among the

cases that respondent had been unable to fully settle before November 2012. For

that reason, the record does not establish clearly and convincingly that, on or

before the putative out-of-trust dates, respondent received checks from insurers

with which to pay the amounts (totaling $4,800) owed to MSS for services to these

clients.

The Allen case is also one as to which Mr. Tyrone, in November 2012, made

a billing adjustment reinstating a reduction to which MSS had agreed months

earlier. In addition, the disbursement sheet for Ms. Allen shows that her agreed-to

settlement was conditioned on a reduction of a bill from “Slade Healthcare Inc.” (a

reduction from $4,470 to $2,200). The record does not show whether that provider

had already agreed to the reduction or whether it was still a subject of negotiation

at the time Ms. Allen signed the disbursement sheet on July 3, 2012, or even by the

October out-of-trust dates. Accordingly, the evidence is less than clear and

convincing that the $1,000 owed to MSS on behalf of Allen had been received by

respondent from the insurance company before the October out-of-trust dates. ______________ (…continued) release — and the later date when MSS withdrew its reduction (September 21, 2012).

23

For all the foregoing reasons, and especially in light of the deficient proof

that by the putative out-of-trust dates respondent had actually received the total of

$5,800 owed to the chiropractors for services provided to Ms. Proctor, Mr.

Wooten, and Ms. Allen, there is not clear and convincing evidence to support the

Hearing Committee’s and Board’s finding that respondent’s trust account was out-

of-trust (by $5,113 and $5,210, respectively) on the dates in question.15 We cannot

say that there was no misappropriation, but we are satisfied that misappropriation

was not clearly and convincingly proven. We therefore conclude that a finding of

misappropriation is not warranted.

IV.

15 Our dissenting colleague criticizes our having “carve[d] out the[se] three

questioned matters[.]” Post at 29. But, again, these three matters are the only ones for which there is no record evidence of when the clients were paid (or when respondent received a check from the insurance company). Is it merely a coincidence that if one removes (from the “owed to providers” column) the amounts owed to MSS for these three clients, the result is that respondent’s trust account held sufficient funds to pay the amounts owed to providers on the putative out-of-trust dates?

24

Having found that respondent committed intentional misappropriation, the

Board did not recommend a sanction for the Rule 1.15 violations relating to

untimely payment to third parties. Having found the Rule 1.15 (a), (c) and (d)

violations as well as negligent misappropriation, the Hearing Committee

recommended a sanction of a one-year suspension without a fitness requirement,16

and possibly a practice monitor or referral to the D.C. Bar’s Practice Management

Advisory Service to assist respondent in handling entrusted funds “in compliance

with her ethical and fiduciary obligations.” Asked during oral argument before the

Board what the sanction should be if the Board did not find misappropriation,

Disciplinary Counsel stated that a six-month to one-year suspension would be

appropriate.

Ordinarily, we would remand to the Board for its recommendation regarding

a sanction for the Rule 1.15 violations relating to untimely payment to third parties.

However, the Board found 34 separate violations with respect to timely paying the

medical providers, and we conclude that this warrants a sanction at the higher

rather than lower end of the range that both the Hearing Committee and

16 The Hearing Committee opined that there is not a serious doubt as to

respondent’s fitness to practice law.

25

Disciplinary Counsel recommended to the Board. We therefore have determined

to impose on respondent the sanction of a one-year suspension, effective from the

date on which she filed (or, if necessary, hereafter files) the affidavit required by

D.C. Bar Rule XI, § 14 (g).

So ordered.

FARRELL, Senior Judge, dissenting. My colleagues have changed their mind

and, by focusing on three of the nearly nineteen client matters relied on by the

Hearing Committee and the Board on Professional Responsibility, now conclude

that Disciplinary Counsel failed to prove by clear and convincing evidence that

respondent misappropriated funds received from medical insurers that either

should have been paid to medical providers on receipt or held in trust pending

resolution of disputes with the provider. Respondent’s dealings with one provider,

MSS, are chiefly at issue, but the Hearing Committee found that, as to a second

provider as well, Dr. Yousefi, respondent misused funds (in part for personal

litigation expenses) and at the evidentiary hearing “duplicitous[ly] characteriz[ed]”

26 her behavior in failing to keep the funds in trust.1 I dissent for the reasons stated in

our previously issued opinion for the court, reported at 180 A.3d 86 (D.C. 2018).

“A central issue,” the majority recognizes, is when respondent actually

received settlement checks from the insurance companies, thereby triggering her

duty either to pay the provider or to deposit and hold disputed funds in trust. In

now deciding favorably for respondent, the majority first dismisses the Board’s

key reliance on respondent’s own “‘repeated[]”’ and “‘insistent[] urg[ing]’” before

the Hearing Committee “‘that all settlement funds at issue . . . were timely

deposited in her trust fund’” contemporaneously with their receipt well before the

twin October out-of-trust dates. Id. at 88 (quoting Board). Its two reasons for

disregarding that admission are far-fetched. First, respondent’s multiple

concessions that she received settlement checks “on or about” specified dates

before October carry no weight for the majority because, in criminal procedure, an

indictment charging a crime “on or about” puts a defendant on notice “that a

particular date is not critical.” Ante at 11 (citing criminal case authority for

1 Unlike my colleagues, the Hearing Committee had no doubt that

respondent misused funds owed Dr. Yousefi, as well as MSS, by exploiting “further delay of payment to resolve all outstanding matters” and “threats and bullying to clear her files of overdue payments.”

27 absence of “prejudicial variance” when dates of indictment and proof may vary as

much as five months). So respondent, we are asked to believe, could have had in

mind the usage in criminal charging documents when acknowledging her receipt of

payments, rather than the meaning “on or about” conveys to an ordinary hearer.

See On or About, BLACK’S LAW DICTIONARY (10th ed. 2014) (“on or about” means

“[a]proximately; at or around the time specified”) (emphasis added). Second, the

majority says that Disciplinary Counsel’s reliance on the “account balance

methodology” at the hearing surprised respondent such that she had no reason to

know in pleading “that more precision in her answers about dates” was required.

Ante at 10. But, as Disciplinary Counsel points out, “[u]ntil the post-hearing

briefs, [r]espondent never raised any doubt about when she actually received the

money she was required to hold in trust for her clients’ medical providers.” And,

as an experienced member of the bar, respondent surely knew that lack of

“precision” in her admissions would not justify a delay of months between receipt

of entrusted funds and their payment to the provider or deposit in escrow.

In sum, the Board and the Hearing Committee could properly conclude that

respondent, in repeatedly admitting close contemporaneity between the clients’

signing of settlement sheets and her receipt and deposit of insurance payments, was

28 neither misled in her answers nor mentally reserving a (quasi-criminal) defense of

receipt of payments much later than she acknowledged.

The majority goes on to concede that, as to the bulk of MSS cases relied on

by Disciplinary Counsel, the record shows that the patients “received their

settlement disbursements by sometime in August 2012,” ante at 18, long before the

October out-of-trust dates. But the majority then focuses on the insurance

payments received in the three matters of MSS patients Proctor, Wooten, and

Allen, where it says the record “provides a basis to question whether respondent

received funds relating to these three clients by the putative out-of-trust dates.”

Ante at 20. Our original opinion, however, cited ample reason in the record for the

Hearing Committee and the Board to conclude that those three cases, like nearly all

others in the nineteen charged client matters, followed this pattern: “[T]he medical

provider would agree to reductions reflected on the [patient] disbursement sheets,

then withdraw those reductions after respondent, though paid by the insurers, failed

to pay the bills (often claiming ‘fraudulent’ billing), whereupon either the provider

would reinstate the reductions after further negotiations or the patients would be

saddled with paying the balance.” 180 A.3d at 89.

29

I am unpersuaded by the court’s effort to carve out the three questioned

matters from this pattern of misappropriation shown by the fully nineteen cases

relied on by Disciplinary Counsel. There is, for one thing, no evidence that when

MSS (having reduced its bills) pressed respondent for payment in the Proctor,

Wooten, and Allen cases, respondent answered by claiming she had not received

payment from the insurers. Her replies instead asserted the alleged inaccuracy of

the bills, as when she told MSS’s Director Moise that “it’s not about the

reductions. It’s about these clients now alleging . . . that they did not have these

types of treatments. How are you going to take care of that?” The Hearing

Committee found it critical that, in the Proctor, Wooten, and Allen cases, “as with

all of these matters, there is no evidence that any insurer or any other third party

challenged the accuracy or validity of the charges on MSS’s bills.” The likelihood,

therefore, that payment by the insurers had been delayed because respondent was

“unable to fully settle” these cases with MSS until November, ante at 22, must

surely approach zero.

The majority repeatedly appears to credit respondent’s hearing testimony, or

to reject the Hearing Committee’s decision to discredit it, or conversely to rely on

the Committee’s not having expressly discredited parts of it the majority thinks

30 telling – all related to respondent’s insistence that she was still negotiating matters

well after the October dates. But, like the Board, I find ample reason in the record

for the Hearing Committee to find appellant’s often-confused testimony about her

ongoing negotiation and delay in receiving insurance funds unreliable.2 Citing her

testimony, for example, the Hearing Committee found that “[r]espondent’s efforts

to excuse the excessive delay in paying Ms. Proctor’s medical providers [or else

her failure to hold the funds in trust were] exceptionally egregious,” including

respondent’s “false” testimonial assertion about when MSS had reduced Proctor’s

bills and her admitted use of an attorney, Eric Tyrone (engaged personally by two

MSS doctors), to effect reductions of which MSS, through Director Moise, was not

informed at the time. Mr. Tyrone, as the Hearing Committee found, “was counsel

for the chiropractors and not MSS,” and thus respondent’s “practice of using [him]

to cover her failings demonstrates an appalling callousness towards the duty she

owed the doctors.” Likewise, respondent’s arguments as to her delayed payment

to MSS in the Allen matter “f[e]ll flat,” the Hearing Committee found, mainly for

2 The majority’s proper insistence that the Board and the Hearing

Committee “were not entitled to misstate respondent’s testimony,” ante at 16, largely confuses misstatement with what both bodies actually did, which was to reject as untrustworthy respondent’s explanations for having neither paid over funds received from insurers nor deposited them in escrow.

31 the reason already stated: “there is no evidence that any insurer . . . challenged the

accuracy or validity of the charges on MSS’s bills.”

Altogether, as the Hearing Committee found, respondent simply “used

further delay of payment as leverage”: although the insurers had “paid settlements

. . . without reserving any right to challenge the integrity of medical bills,”

respondent “was able to bully or scare MSS into agreeing to some further

reductions that inured to the benefit of a few of her clients” – a “windfall for some

clients” resulting from “the derogation of her duties to the medical providers” and

the accompanying risk of lawsuits by MSS against other clients. These findings,

echoing the Committee’s finding of “duplicitousness” in her dealings with Dr.

Yousefi and testimony about them, are not clearly erroneous. The unanimous

Board therefore had sound reason to conclude, that as to the Proctor, Wooten, and

Allen matters, like most others, “[r]espondent’s attempted justification of her tardy

payments to MSS relies essentially on her own testimony, which the Hearing

Committee rejected” (italics added), and that, in her testimony, respondent

“proffered utterly meritless excuses for her failures promptly to pay her clients’

medical providers” or alternatively hold the received funds in trust. Respondent’s

repeated shortfalls in her trust account were not severe, but Disciplinary Counsel,

32 aided by respondent’s unconvincing explanations, see In re Thompson, 579 A.2d

218, 221 (D.C. 1990), proved them by clear and convincing evidence.

EXHIBIT 3



TO:

FROM:

JaCina N. Stanton Assistant Bar Counsel

Richard D. Lisko Investigator

MEMORANDUM

July 15,2015

RE: BC Docket No. 2015-0802 Shannan Martin I Andrew Ndubisi Ucheomumu, Esquire

On July 14. 20141nvestigator Richard Lisko spoke to Jennifer Anukem, Esquire, by telephone (202-250-9296) regarding this complaint. Ms. Anukem was hired by the Complainant to appeal a child custody case that was first handled by the Respondent. The Complainant was referred to Ms. Anukem by another client from a divorce case.

Ms. Anukem said that she was retained by the Complainant in late March 2015 to tile an appeal to a child custody order. The Respondent had previously been retained by the Complainant for this purpose. At the time that she was retained, the Complainant's appeal had already been dismissed by the Court of Special Appeals for a lack of required transcripts. Since that time she has obtained transcripts of the previous hearings and submitted them to the appropriate court. She has also filed a Writ of Certiorari in the Court of Appeals to review the decision ofthe Court of Special Appeals entered on March 25.2015. A decision on that filing has not been rendered as of this date.

Ms. Anukem said that the dismissal of the Complainant's appeal has severely limited the Complainant's options in this matter. If the Court of Appeals does not grant the pending request by the Complainant, her only other option is to seck a modification of the current child custody agreement. Ms. Anukem indicated that effort would be difficult with an uncertain outcome.

When asked about the Respondent's handling of the Complainant's case, Ms. Anukem replied that she thought the Respondent's handling of Complainant's funds was unusual. She explained that it is the duty of an attorney to advance a case first without regard to payment. She said that in this case, the Respondent paid himself before ensuring that the case was being properly advanced. In this case, the Respondent knew that the appeal could not be heard without transcripts from the previous hearings.

Further, the Respondent had a family matter occur during the course of this case which caused him to be out of town for some time. This further delayed the process of obtaining transcripts.

She also said that when she reviewed the Respondent's billing statement provided by the Complainant, she noticed that at the time that the transcripts were needed, the Respondent had

Interim Report BC Docket No. 2015-0802 May 5, 2017 Page2

not spent down the Complainant's retainer and sufficient funds were available to pay for them. However, she said the billing statement expenses appeared legitimate and the Respondent actually performed the work. Therefore he likely believed that he earned his fee. However, this action did not leave any available funds for the transcripts.

Ms Anukem said that it also appears the Respondent maintained constant communication with the Complainant and opposing counsel. However. she also added that, in her opinion, the Respondent did not act as a fiduciary for the Complainant.

;

EXHIBIT 4



The Motion to Alter or

Amend is deem

ed filed on the sam

e day, but after the July 31

st

Custody Order is

docketed.

The Notice of Appeal is

deemed filed on the

same day, but after the

Motion to Alter or

Amend is resolved,

something that has not

yet occurred.

Nullity

Key Events Pertaining to the EdsallIssue and Martin’s Current Right of Appeal