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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
ejudice or advise them of her actions afterwards. Respondent represents that the Butler case was not dismissed with prejudice, but rather the complaint and all pleadings were returned to the parties and the line of dismissal was never acted upon. We overrule this exception. Respondent was asked repeatedly at the hearing about the "line of dismissal," and she never controverted this fact. In fact, she authenticated petitioner's exhibit no.14 as the line of dismissal, and it was received into evidence without objection. The line of dismissal, signed by respondent, is entitled "LINE OF DISMISSAL WITH PREJUDICE" and asks the clerk to enter the claim as "dismissed WITH prejudice." Respondent excepts to two findings related to respondent's decision to consult with Mr. Wiggins. The hearing judge's findings are not clearly erroneous and we overrule these exceptions. Respondent excepts to the hearing judge's finding that she purposefully omitted lines from the "Statement of Settlement," arguing that she omitted those lines to avoid misleading the Butlers. The hearing judge's inferences drawn from the facts are not clearly erroneous, and we overrule the exception.
Finally, respondent excepts to the hearing judge's findings that Mrs. Butler testified that she believed that her case was still viable, that her case had settled with Amica, and that the check she originally received was from Amica. We accept respondent's correction and find that Mrs. Butler did not testify to these statements. We note, however, that the hearing judge did not rely upon Mrs. Butler's beliefs in any of its conclusions of law. Rather, the hearing judge relied upon the undisputed facts that respondent did not disclose the facts surrounding the dismissal of the case or the source of the funds. Additionally, the hearing judge relied upon respondent's testimony that she intended for the Butlers to be unaware of the source of the funds and the status of the case.
We grant respondent's exception as to Rule 1.1 Competence, and Rule 1.3 Diligence. The record indicates that the parties stipulated that the statute of limitations had run on the client's complaint before respondent discovered the filing error. Based upon this stipulation, the Circuit Court found that "if the Petitioner had maintained an appropriately efficient and reliable system to process her client's matter and manage her case files, the Clerks's Office error would have been discovered prior to the Statute of Limitations expiring," and thus, respondent exhibited incompetence in handling the Butlers' case. Respondent appears to have filed the complaint in the Butler case properly; it was the Clerk's Office error that resulted in the problem. Respondent's problem arose in her failure to detect that the check she gave to the Clerk's Office for the Butler complaint was not negotiated. While a better office system would have detected the problem, we do not think that such oversight or negligence constitutes sanctionable conduct under Rule 1.1. See Attorney Grievance v. Thompson, 376 Md. 500, 512, 830 A.2d 474, 481 (2003) (stating that "a single mistake does not necessarily result in a violation of Rule 1.1, and may constitute negligence but not misconduct under the rule").
Respondent clearly violated Rule 1.4 Communication, Rule 1.7(b) Conflict of Interest, Rule 1.16(a)(1) Withdrawal from Representation, and Rule 8.4 Misconduct.
B. Petitioner's Exceptions
Bar Counsel excepts to the hearing judge's conclusion that respondent's good faith reliance on advice of counsel as a mitigating factor had been proven by a preponderance of the evidence. Bar Counsel maintains that this conclusion is inconsistent with the hearing judge's findings of fact
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