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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
ter and manage her case files, the Clerk's Office error would have been discovered prior to the Statute of Limitations expiring. The failure of the Respondent to notice that the Butler Complaint and the Brown Complaint were assigned the same case number and that the check from the Butler Complaint was not negotiated by the Clerk's Office was a result of not having such a system in place in her office, not merely negligent or careless oversight in this particular case. ` he thoroughness and preparation reasonably necessary for competent representation includes the proper management of case files.' Attorney Grievance Commission v. Ober, 350 Md. 616, 630, 714 A.2d 856, 863 (1998).
"Therefore, this Court concludes that the Petitioner established by clear and convincing evidence that Respondent exhibited incompetence in handling the Butlers' case.
B. 1.2 Scope of Representation
"Rule 1.2 provides that ` lawyer shall abide by a client's decisions concerning the objectives of representation, . . . and, when appropriate, shall consult with the client as to the means by which they are to be pursued. The lawyer shall abide by a client's decision whether to accept an offer of settlement of a matter.'
"Initially, the Respondent was given a clear directive by the Butlers to seek not less than $10,000.00 as settlement of their claims. Ms. Pennington pursued this amount during the negotiations with Amica both before and after the filing of the Butler Complaint. Despite the Respondent's efforts, the nature of the Butlers claim changed after the Clerk's Office error was discovered, the Statute of Limitations had run on their claim, and the dismissal of their claim without consultation or consent of the Butlers. At this point, the Petitioner is correct in contending that the personal injury claimed changed to a possible malpractice claim against the Respondent. Mrs. Butler testified and Respondent agrees that settlement for $10,000.00 was to be with Amica. The Butlers were never provided the necessary information to leap to the conclusion that they would have settled with the Respondent in a malpractice suit for the same amount.
"The Respondent did not and could not rely on the Butlers' decision to accept an offer of settlement for $10,000.00 as a means of `making her clients whole' because there was no settlement offer to be accepted. The Butlers clearly did not give the Respondent the authority to settle a possible malpractice claim against her because they were not alerted to the facts that would give rise to such a claim.
"For these reasons, this Court concludes that Petitioner established by clear and convincing evidence, that Respondent violated this Rule.
C. Rule 1.3 Diligence
"The Petitioner contends that the Respondent was not diligent in her representation of the Butlers because of her failure to assure proper filing of the Butlers' Complaint. The Respondent argues that the only lack of diligence is the failure to discover the lack of diligence of the employee of the Clerk's Office in carrying out his or her appointed duties. Further, the Respondent argues that at most the failure to make this discovery can be characterized as negligent or careless.
"Rule 1.3 requires the lawyer to `act with reasonable diligence and promptness in representing a client.' This Court finds that the failure to discover the error made by the Clerk's Office was in fact a violation of Rule 1.3. It is the responsibility of the attorney to ensure that the Complaints they file on behalf of the client are filed properly. See Attorney Grievance Commission v. Granger, 374 Md. 438, 823 A.2d 611 (2003).
"In this matter, M
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