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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
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"Despite the Respondent's failure to acknowledge a possible malpractice claim, the fact remains that, once the Joint Dismissal was filed in this case, the malpractice claim became a reality. The Respondent's successful attempt to placate the Butlers by providing what appeared to be a gross recovery of $10,000.00 from her own personal funds is not sufficient to eliminate, or even mitigate, the conflict. This cannot represent the amount that would have been recovered in a malpractice claim.
"The Respondent further argues that, because the Butlers received what they anticipated, there was no injury. The fact remains that the Butlers were deprived of the potential malpractice claim and that, in this Court's view, is a substantial injury to the client. See Graves v. State of Maryland, 94 Md.App. 649, 619 A.2d 123 (1991).
"The Respondent's argument is further without merit because even if she did not believe a conflict of interest existed, under the Rule she had an affirmative duty to disclose the facts to the client, advise them of their right to seek independent counsel, and obtain a consent before representation of the clients could proceed any further. There is no evidence in the record that reflects that these mandates of the Rule were followed.
"This Court concludes that there is clear and convincing evidence that there was a violation of Rule 1.7.
F. Rule 1.16(a)(1)
"This Rule merely provides that `a lawyer shall not represent a client or, where representation has commenced, shall withdraw from the representation of a client if the representation will result in violation of the Rules of Professional Conduct or other law.' For the reasons previously stated, Respondent clearly violated this Rule because she failed to withdraw from representation of the Butlers after her representation gave rise to their cause of action against her.
G. Rule 8.4 Misconduct
"The Petitioner complains that the Respondent has violated Rule 8.4(c) and 8.4(d). Respectively, these provisions find that a lawyer engages in professional misconduct if a lawyer: `engage in conduct involving dishonesty, fraud, deceit or misrepresentation' and `engage in conduct that is prejudicial to the administration of justice.'
"The Petitioner alleges that the Respondent, in an attempt to make it appear like the purported `settlement' checks were from Amica, prepared and presented a `Statement of Settlement' that was almost identical to the Statement of Settlement presented to them back in 1999 for the settlement of their property damage claim. This, the Petitioner adds, is a perfect example of an overt act designed to mislead the clients.
"It is undisputed that the Respondent never disclosed the facts surrounding the dismissal of the case to the Butlers, that the Respondent never communicated to them the source of the funds used to `make them whole' and, in addition, that the Respondent negotiated a reduction of Mrs. Butler's medical expenses by representing to certain health care providers that there was a possible settlement in this matter.
"The Respondent contends that her actions were not intentional or willful and thus could not been viewed to violate Rule 8.4(c) and (d). This Court simply does not believe that Respondent did not intend the natural consequences of her action and non-action, especially when the Respondent testified that she never wanted the Butlers to become aware of the source of the funds or the status of their claims. Intentional fraud can be sustained by means of concealment. Attorney Grievance Commission v. Clements, 319 Md. 289, 572 A.2d 174 (1990); See also Attorney Grievance Commission v.
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