Attorney Grievance Comm'n v. Davis ( 2023 )

Attorney Grievance Commission of Maryland v. Donald Dorin Davis, AG No. 28,
September Term, 2022. Opinion by Eaves, J.
ATTORNEY DISCIPLINE — SANCTION — INDEFINITE SUSPENSION
Respondent, Donald Dorin Davis, violated several provisions of the Maryland Attorneys’
Rules of Professional Conduct (“MARPC”) when he failed to fully render agreed-upon
legal services and communicate with his client; abandoned the client, forcing the client to
seek successor counsel; failed to refund any unearned fees; made intentional
misrepresentations to his client and the Attorney Grievance Commission of Maryland (“the
Commission”); and failed to cooperate with the Commission during the investigatory
process.
Respondent’s conduct violated the following MARPC: 1.1 (Competence), 1.3 (Diligence),
1.4 (Communication), 1.5 (Fees), 1.16 (Declining or Terminating Representation), 8.1 (Bar
Admission and Disciplinary Matters), and 8.4 (Misconduct). These violations warranted
an indefinite suspension.
Circuit Court for Prince George’s County
Case No. C-16-CV-22-000681
Argued: Oral argument waived/submitted on papers
IN THE SUPREME COURT
OF MARYLAND
AG No. 28
September Term, 2022
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
DONALD DORIN DAVIS
Fader, C.J.
Watts,
Hotten,
Booth,
Biran,
Gould,
Eaves,
JJ.
Opinion by Eaves, J.
Filed: October 23, 2023
Pursuant to the Maryland Uniform Electronic Legal Materials
Act (§§ 10-1601 et seq. of the State Government Article) this
document is authentic.
2023-10-23 13:29-04:00
Gregory Hilton, Clerk
I
INTRODUCTION
On November 3, 2022, the Attorney Grievance Commission of Maryland
(“Petitioner” or “the Commission”), acting through Bar Counsel, filed a Petition for
Disciplinary or Remedial Action (“Petition”) in this Court, alleging that Donald Dorin
Davis, Respondent, violated the following Maryland Attorneys’ Rules of Professional
Conduct (“MARPC”)1:
• 19-301.1: Competence (1.1);
• 19-301.3: Diligence (1.3);
• 19-301.4: Communication (1.4);
• 19-301.5: Fees (1.5);
• 19-301.16: Declining or Terminating Representation (1.16);
• 19-308.1: Bar Admissions and Disciplinary Matters (8.1); and
• 19-308.4: Misconduct (8.4).
Pursuant to Maryland Rules 19-722(a) and 19-727(e), this Court referred the matter
to the Circuit Court for Prince George’s County and designated the Honorable Carol A.
Coderre (the “hearing judge”) to conduct an evidentiary hearing and provide findings of
fact and conclusions of law. After a one-day hearing held on May 25, 2023,2 the hearing
judge found clear and convincing evidence that Respondent violated Rules 1.1; 1.3; 1.4;
1.5(a); 1.16(d); 8.1(a)–(b); and 8.4(a), (c), and (d). Neither Respondent nor the
1
Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct,
which employed the numbering format of the American Bar Association Model Rules,
were renamed the MARPC and recodified without substantive modification in Title 19,
Chapter 300 of the Maryland Rules. For ease of reference and comparison with our prior
opinions and those of other courts, we will refer to the MARPC using the numbering of the
model rules, as permitted by Rule 19-300.1(22).
2
As will be discussed in greater detail, Respondent did not participate in much of
the disciplinary process, including the evidentiary hearing.
Commission has filed exceptions with this Court. Petitioner recommends that we
indefinitely suspend Respondent from the practice of law. For the reasons discussed below,
we agree with the hearing judge’s conclusions and with the Commission’s
recommendation.
Before discussing the hearing judge’s findings of fact, we discuss some pertinent
procedural history. On February 17, 2023, Bar Counsel served Petitioner with a copy of
the Petition, interrogatories, and requests for both production of documents and admissions
of fact and genuineness of documents, including 29 attached exhibits.3 Having received
no response, on March 20, 2023, Petitioner moved for an order of default, which the
hearing judge granted. Despite the order of default, the hearing judge stated that she would
allow the Commission to “present such evidence as it deem[ed] necessary to allow the
[hearing judge] to carry out her assigned function as set forth in Maryland Rule 19-727.”
Respondent neither moved to vacate that order of default nor participated in the disciplinary
hearing. Pursuant to Maryland Rule 2-424(b), the hearing judge deemed admitted the
averments contained in Petitioner’s request for admissions and subsequently issued her
Findings of Fact and Conclusions of Law. No exceptions—from either party—have been
filed, so we may treat the hearing judge’s “findings of fact as established.” Md. Rule 19-
3
The hearing judge signed an order permitting alternate service after Bar Counsel
made numerous, unsuccessful attempts to serve Respondent. When Bar Counsel asked if
he would accept alternative service, Respondent indicated via a reply email that he was
unaware of anyone trying to serve him in person, would accept service via mail, and was
neither practicing law nor maintaining a law license in Maryland.
2
740(b)(2)(A); see also Att’y Grievance Comm’n v. Parris, 482 Md. 574, 585 (2023). We
now summarize those findings.
II
THE HEARING JUDGE’S FINDINGS OF FACT
A. Background
Respondent was admitted to the Maryland Bar in December 2019 and maintained
an office for the practice of law in Washington, D.C., until sometime in 2021 when he
closed that office due to hardships caused by the COVID-19 pandemic.4
B. Representation of Jeremy McGilvrey
Jeremy McGilvrey and Natalie Treurniet (collectively referred to as “the Parents”)
had a child together—T.T.5—but the Parents never married. In November 2018, Mr.
McGilvrey filed against Ms. Treurniet and in the Circuit Court for Montgomery County a
complaint for custody, access, and visitation. The Parents eventually entered into a custody
agreement whereby Ms. Treurniet would retain physical and legal custody of T.T.; the
Parents agreed that Mr. McGilvrey would remain a de facto parent but consented to T.T.’s
4
The hearing judge found that Respondent “closed his law practice and ceased
practicing law[]” “sometime in 2020[.]” This finding was, however, an oversight by the
hearing judge. As she also noted in her findings (discussed more fully below), Respondent
was practicing law at least through January 6, 2021. Therefore, the closing of Respondent’s
law practice and the cessation of his practicing law could not have occurred until sometime
in 2021.
5
Consistent with our usual practice, we use initials to protect the identity of the
minor child.
3
adoption by Ms. Treurniet’s husband.6 The latter point of agreement was conditioned on
Mr. McGilvrey’s ability to seek custody and visitation.
Believing that Ms. Treurniet was violating the custody agreement by impeding his
reunification with T.T., Mr. McGilvrey retained Respondent on August 4, 2020, to assist
in the “execution and fulfillment of” the Parents’ custody agreement. Respondent’s
retainer agreement required a retainer of $3,000, and Mr. McGilvrey paid Respondent
$2,500 via cashier’s check that same day. To seek enforcement of the custody agreement,
Respondent drafted for Mr. McGilvrey a motion alleging that Ms. Treurniet was in
contempt of the court order enforcing that agreement (the “contempt motion”), and both
Respondent and Mr. McGilvrey signed the contempt motion on December 15, 2020. In a
January 6, 2021, email (the “January 6 email”) to Mr. McGilvrey, Respondent knowingly
and intentionally misrepresented that he filed that motion:
You[r] motion was filed yesterday with the clerk. The clerk will review the
document, confirm it is correct, accept it and then assign a judge. This takes
a day. I will send you the stamped, accepted copy as soon as I receive it.
Then we will get a scheduling notice and we can discuss next steps.
Respondent closed his law practice that same month shortly after sending the
January 6 email due to constraints from the COVID-19 pandemic, but he never advised
Mr. McGilvrey of that decision. On four different days in January 2021, Mr. McGilvrey
attempted to contact Respondent, asking for an update on the contempt matter; Respondent
never replied, and there was no further communication between the two. The hearing judge
6
It is unclear from the AGC file whether any court granted Petitioner the status of
a de facto parent or whether that simply was a term used by the Parents in the custody
agreement.
4
also found that Respondent never provided any billing invoices to Mr. McGilvrey, nor did
Respondent refund any portion of the $2,500 Mr. McGilvrey paid to Respondent.
C. Bar Counsel’s Investigation
After Mr. McGilvrey filed a complaint with the Commission, Bar Counsel emailed
Respondent on July 12, 2021, requesting a written response by July 27. Respondent replied
on July 27, misrepresenting the scope of the work he performed for Mr. McGilvrey and
claiming—without evidence—that his fees associated with the contempt matter exceeded
the $2,500 Mr. McGilvrey paid. Thus, according to Respondent, Mr. McGilvrey was not
owed a refund.
By an August 10 email, Bar Counsel requested within 14 days additional
information from Respondent. Respondent did not comply, so Bar Counsel again sent its
request on September 8 (via email and certified first-class mail), requesting a reply by
September 22. Respondent replied that same day, indicating that he was in California,
would be back in Maryland the following week, and, at that point, would review Bar
Counsel’s request. On September 29, Respondent provided incomplete responses and
failed to provide any of the documents requested by Bar Counsel. Based on what little
information Respondent did provide, however, the hearing judge found that Respondent
knowingly and intentionally misrepresented to Bar Counsel that he never sent the January
6 email to Mr. McGilvrey.
On December 8 and 29, 2021, and January 7 and 27, 2022, Bar Counsel sent
Respondent a request for additional information. The first three requests all were received
by Respondent, but Bar Counsel never received a reply. Respondent replied to Bar
5
Counsel’s January 27 request on February 4, but his responses were incomplete, and he
indicated that all future requests should be sent via regular mail, as he no longer was
monitoring his email address.
Dissatisfied with his February 4 responses, Bar Counsel sent on February 10 via
regular mail a request for additional information with a reply date of February 25. Bar
Counsel sent subsequent letters dated March 7 and April 21, but Respondent did not reply
to any of those requests.
Additional facts will be discussed as necessary.
III
THE HEARING JUDGE’S CONCLUSIONS OF LAW
The hearing judge concluded that Respondent violated MARPC 1.1; 1.3; 1.4; 1.5(a);
1.16(d); 8.1(a)–(b); and 8.4(a), (c), and (d).
The hearing judge concluded that Respondent’s failure to file the motion for
contempt or communicate with Mr. McGilvrey constituted a violation of Rule 1.1. And as
to Rule 1.3, the hearing judge relied on the same reasons for her conclusion as to the Rule
1.1 violation (as well as the reasons for Respondent’s Rule 1.4 violation discussed
immediately below).
According to the hearing judge, Respondent violated Rule 1.4 when he failed to (1)
reply to Mr. McGilvrey’s emails dated January 12, 13, 18, and 20, 2021, and (2) provide
periodic billing statements to Mr. McGilvrey.
Although the hearing judge acknowledged that Respondent drafted the contempt
motion for Mr. McGilvrey, she concluded that Respondent’s failure to file the motion and
6
obtain any meaningful results for Mr. McGilvrey constituted a Rule 1.5(a) violation. The
hearing judge also concluded that Respondent’s failure to refund any portion of the $2,500
paid by Mr. McGilvrey also constituted a violation of Rule 1.5(a).
Concerning Rule 1.16(d), the hearing judge concluded that Respondent violated that
Rule when he failed to notify Mr. McGilvrey that Respondent was shutting down his law
practice and provide Mr. McGilvrey with sufficient time to retain successor counsel.
Additionally, the hearing judge concluded that Respondent’s failure to substantiate the time
he spent on Mr. McGilvrey’s matter, render any services of value, and issue a refund to
Mr. McGilvrey all constituted a violation of Rule 1.16(d).
The hearing judge concluded that Respondent’s September 29, 2021,
correspondence to Bar Counsel, wherein he stated that he did not send the January 6 email
to Mr. McGilvrey, was a knowing misrepresentation, constituting a violation of Rule
8.1(a). Respondent also violated Rule 8.1(b), the hearing judge concluded, when he
routinely failed to reply to Bar Counsel’s correspondences from August 2021 to April
2022.
Because the hearing judge concluded that Respondent violated numerous MARPC,
she also concluded that he violated Rule 8.4(a). Respondent’s knowing and intentional
misrepresentation (in the January 6 email) to Mr. McGilvrey that Respondent filed the
contempt motion also violated Rule 8.4(c). Lastly, the hearing judge concluded that
Respondent violated Rule 8.4(d) by failing to (1) provide prompt and complete responses
to Bar Counsel during the investigatory process; (2) keep Mr. McGilvrey apprised of his
case; and (3) return unearned fees to Mr. McGilvrey after abandoning the representation.
7
The hearing judge concluded that these violations brought the legal profession into
disrepute.
IV
STANDARD OF REVIEW
While this Court has original jurisdiction over an attorney disciplinary proceeding,
Att’y Grievance Comm’n v. Ekekwe, 478 Md. 688, 708 (2022), we may refer the matter to
any circuit court judge, Md. Rule 19-722(a), who then is required to issue written findings
of fact and conclusions of law, Md. Rule 19-727(e). When we do so, this Court ordinarily
analyzes a hearing judge’s findings of facts using the clearly erroneous standard. Att’y
Grievance Comm’n v. White, 480 Md. 319, 352 (2022); Md. Rule 19-740(b)(2)(B). As
previously noted, however, because no exceptions were filed in this case, we “may treat
the [hearing judge’s] findings of fact as established[,]” Md. Rule 19-740(b)(2)(A)
(emphasis added), and we exercise our discretion to do so in this case. We review the
hearing judge’s conclusions of law under the de novo standard (without deference), Md.
Rule 19-740(b)(1), and Bar Counsel bears the burden of establishing by clear and
convincing evidence a violation of the MARPC, Md. Rule 19-727(c).
V
RULE VIOLATIONS
We now conduct a de novo review of the hearing judge’s legal conclusions based
upon her established findings of fact.
A. Rule 1.1
Rule 1.1 states: “An attorney shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
8
preparation reasonably necessary for the representation.” “An attorney violates Rule 1.1
when he or she fails ‘to apply the requisite thoroughness and/or preparation in representing
a client . . . .’” White, 480 Md. at 366 (quoting Att’y Grievance Comm’n v. Karambelas,
473 Md. 134, 159 (2021)). A lack of such thoroughness and preparation, we have said,
includes an outright failure to file necessary pleadings and motions. Parris, 482 Md. at
592 (citing Att’y Grievance Comm’n v. Bellamy, 453 Md. 377, 393 (2017)).
We agree with the hearing judge that Respondent violated Rule 1.1 because he
failed, despite drafting the contempt motion, to formally initiate the matter with the circuit
court for which he was retained. See Att’y Grievance Comm’n v. Hoerauf, 469 Md. 179,
208–09 (2020) (sustaining Rule 1.1 violation because attorney, among other things, “failed
to file a motion for modification of sentence . . ., after informing [the client that] she would
do so, and then failed to advise [the client] that she did not file such a motion[]”); Att’y
Grievance Comm’n v. Brady, 422 Md. 441, 452 (2011) (sustaining Rule 1.1 violation
where attorney, even though he filed both a complaint and amended complaint, failed to
file a response to a motion to dismiss); Att’y Grievance Comm’n v. Awuah, 374 Md. 505,
522 (2003) (“Respondent violated Rule 1.1 when he failed to file the requisite appeal and/or
motion to reconsider within the time period, which reflected a lack of skill and
thoroughness.”). In essence, Respondent failed to pursue any meaningful course of action
for Mr. McGilvrey. See Att’y Grievance Comm’n v. Aita, 458 Md. 101, 118 (2018)
(sustaining Rule 1.1 violation where attorney “fail[ed] to pursue any relief . . . all while
allowing the client to rely on [the attorney’s] representations that [the attorney] would do
9
so”). Thus, we agree with the hearing judge that clear and convincing evidence exists to
support a violation of Rule 1.1.
B. Rule 1.3
Rule 1.3 states that “[a]n attorney shall act with reasonable diligence and
promptness in representing a client.” “In its simplest form, an attorney violates Rule 1.3
when he or she does nothing whatsoever to advance the client’s cause or endeavor.” White,
480 Md. at 369 (internal quotation marks omitted) (quoting Att’y Grievance Comm’n v.
Moawad, 475 Md. 424, 469 (2021)).
The hearing judge concluded that Respondent violated Rule 1.3 for the same reasons
articulated for the Rule 1.1 violation (and Rule 1.4, as discussed below), and we agree. It
is well settled in our jurisprudence that the facts that form the basis for a Rule 1.1 violation
also may serve as the basis for a Rule 1.3 violation. Att’y Grievance Comm’n v. Jones, 484
Md. 155, 197 (2023); Att’y Grievance Comm’n v. Hensley, 467 Md. 669, 685 (2020);
Bellamy, 453 Md. at 395. Thus, we likewise agree with the hearing judge that clear and
convincing evidence exists to support a Rule 1.3 violation.
C. Rule 1.4
In its entirety, Rule 1.4 states:
(a) An attorney shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule 19-
301.0(g) (1.0), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; and
10
(4) consult with the client about any relevant limitation on the
attorney’s conduct when the attorney knows that the client expects
assistance not permitted by the Maryland Attorneys’ Rules of
Professional Conduct or other law.
(b) An attorney shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
“Rule 1.4 is violated when an attorney communicates nothing or fails to
communicate crucial information to the client regarding the status of a case.” Karambelas,
473 Md. at 162. The hearing judge cited both Rule 1.4(a) and Rule 1.4(b), but she
concluded that Respondent “violated Rule 1.4[]” without specifying any subsection. But
her specific conclusions state that Respondent “failed to respond in any manner to Mr.
McGilvrey’s reasonable requests for information[]” and that Respondent’s failure to
communicate “severely limited[]” Mr. McGilvrey’s “ability to make informed decisions
about his case[.]” The former seems to speak to Rule 1.4(a), while the latter seems aimed
at Rule 1.4(b). But whether the hearing judge’s conclusion was made under subsection (a),
subsection (b), or both is irrelevant. Respondent’s conduct satisfies both subsections, and
our sanction would not change even if the violation were predicated on only one
subsection.7
7
We made a similar point in Attorney Grievance Commission v. Farmer where the
hearing judge concluded that, as to Rule 8.4, the attorney violated subsection (a). 484 Md.
107, 146 (2023). In its recommendation for sanction, Bar Counsel noted that, “[t]o the
extent this Court finds that the hearing judge concluded the Respondent did not violate
Rule 8.4(b) and (c), the[n] Petitioner excepts.” Id. We noted that it was “unclear” whether
the hearing judge made findings regarding violations of Rule 8.4(b) and (c). Id.Ultimately, “because resolution of the matter would not [have] affect[ed] the sanction in
[that] case, we decline[d] to address the Commission’s exception.” Id. While no party has
excepted here, our rationale and sentiment from Farmer apply all the same.
11
Mr. McGilvrey made four separate attempts in January 2021 to contact Respondent,
and each time Respondent ignored Mr. McGilvrey’s request for an update. Respondent
ceased all communication with Mr. McGilvrey after Respondent’s January 6 email. That
conduct—or the lack thereof—violates Respondent’s ethical requirement to keep Mr.
McGilvrey reasonably informed about the status of Mr. McGilvrey’s matter or promptly
comply with Mr. McGilvrey’s requests for information. Thus, clear and convincing
evidence shows that Respondent violated Rule 1.4(a).
Respondent’s failure to disclose to Mr. McGilvrey the closure of Respondent’s law
practice violated Rule 1.4(b) because it delayed and impeded Mr. McGilvrey from making
informed decisions regarding Respondent’s representation and whether Mr. McGilvrey
should secure new counsel. This too is clear and convincing evidence that Respondent
violated Rule 1.4(b).8
8
We certainly agree with the hearing judge that an attorney can violate Rule 1.4 for
failing to provide a client with periodic billing invoices, Att’y Grievance Comm’n v. Green,
441 Md. 80, 98–99 (2014); see also Att’y Grievance Comm’n v. Brooks, 476 Md. 97, 134
(2021) (sustaining Rule 1.4(a)(2) and 1.4(a)(3) violations where attorney did not provide
estate beneficiaries invoices for six months despite “repeated requests for such accountings
and [the attorney’s] repeated assurances that he would provide them[]”); Att’y Grievance
Comm’n v. Rand, 445 Md. 581, 628–29 (2015) (sustaining Rule 1.4 violation where
attorney requested and received $1,000 to replenish initial retainer without providing client
with agreed-upon invoices detailing services), but such a violation did not occur here. The
hearing judge did not make any findings of fact regarding a request by Mr. McGilvrey to
receive any billing invoices, and Respondent’s retainer agreement does not contemplate
that he would send to Mr. McGilvrey any such periodic billing invoices. Thus, we do not
agree that Respondent’s failure to provide periodic billing invoices was a violation of Rule
1.4 based on the record here. See Att’y Grievance Comm’n v. Conwell, 462 Md. 437, 461–
62 (2019) (overruling Bar Counsel’s exception that Respondent did not violate Rule 1.4
because the client did not request invoices regarding escalating fees, and the retainer
agreement did not contemplate that the client would receive automatic statements).
12
D. Rule 1.5
Rule 1.5(a) states in its entirety:
An attorney shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, and the skill requisite to perform the legal service
properly;
(2) the likelihood, if apparent to the client, that the acceptance of the
particular employment will preclude other employment of the
attorney;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the
client;
(7) the experience, reputation, and ability of the attorney or attorneys
performing the services; and
(8) whether the fee is fixed or contingent.
“An advance fee given in anticipation of legal service that is reasonable at the time
of the receipt can become unreasonable if the attorney does not perform the agreed-upon
services.” Att’y Grievance Comm’n v. Smith-Scott, 469 Md. 281, 344–45 (2020) (quoting
Att’y Grievance Comm’n v. Blair, 440 Md. 387, 403 (2014)). Failing to earn the fee itself,
along with a failure to refund any unearned portion of the fee, can constitute a Rule 1.5(a)
13
violation. Id. at 345 (citing Att’y Grievance Comm’n v. Garrett, 427 Md. 209, 224–25
(2012)).
We agree with the hearing judge that, although Respondent drafted the initial
contempt motion, Respondent’s combined failure to file the motion and to refund any
portion of the $2,500 fee transformed what initially may have been a reasonable fee into
an unreasonable one. Respondent was retained to assist in the “execution and fulfillment
of [a] ‘parentage agreement’” between the Parents. While the motion for contempt
arguably has some value with respect to a fee for legal services, Respondent’s failure to
file that motion left Mr. McGilvrey without the services for which he bargained. See Att’y
Grievance Comm’n v. Miller, 467 Md. 176, 217 (2020) (sustaining Rule 1.5(a) violation
where attorney’s work “failed to culminate in obtaining any meaningful results on behalf
of” the client). Respondent’s failure to then refund any portion of the $2,500 also supports
a Rule 1.5(a) violation. See Jones, 484 Md. at 208 (holding that attorney violated Rule
1.5(a) where he failed to refund an appropriate portion of a flat fee after his services were
terminated). Clear and convincing evidence exists to support a Rule 1.5(a) violation.
E. Rule 1.16
Rule 1.16(d) states:
Upon termination of representation, an attorney shall take steps to the extent
reasonably practicable to protect a client’s interests, such as giving
reasonable notice to the client, allowing time for employment of another
attorney, surrendering papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not been earned
or incurred. The attorney may retain papers relating to the client to the extent
permitted by other law.
“An attorney violates Rule 1.16(d) when the attorney abandons representation of a client,
14
fails to return records, and refuses to communicate with the client or successor counsel.”
Att’y Grievance Comm’n v. Viladegut, 473 Md. 38, 61 (2021).
We agree with the hearing judge that Respondent violated Rule 1.16(d). First,
Respondent completely abandoned Mr. McGilvrey immediately after sending the January
6 email despite Mr. McGilvrey’s multiple attempts to contact Respondent. Respondent
gave no notice to Mr. McGilvery that Respondent was terminating his law practice and
contravened the heart of Rule 1.16(d). Second, as noted above, Respondent failed to return
any unearned portion of the $2,500 fee. This too constitutes a violation of Rule 1.16(d).
See Att’y Grievance Comm’n v. Wescott, 483 Md. 111, 126 (2023) (“Considering our
conclusion that Mr. Wescott did not earn the $7,000 fee that he collected from [the client]
and did not return any portion of that fee to [the client] after his representation was
terminated, Mr. Wescott violated Rule 1.16(d).”); Att’y Grievance Comm’n v. Taniform,
482 Md. 272, 313 (2022) (“We find that clear and convincing evidence supports the hearing
judge’s conclusion that Mr. Taniform violated Rule 1.16(d) by failing to return unearned
fees.”). Thus, we are satisfied that clear and convincing evidence exists to support that
Respondent violated Rule 1.16(d).
F. Rule 8.1
Rule 8.1 provides that
[a]n applicant for admission or reinstatement to the bar, or an attorney in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension known by
the person to have arisen in the matter, or knowingly fail to respond to a
15
lawful demand for information from an admissions or disciplinary authority,
except that this Rule does not require disclosure of information otherwise
protected by Rule 19-301.6 (1.6).
“An attorney violates [Rule 8.1(a)] when they have ‘knowingly misrepresented
material facts in response to Bar Counsel’s requests for information.’” Att’y Grievance
Comm’n v. O’Neill, 477 Md. 632, 652 (2022) (quoting Att’y Grievance Comm’n v. Yi, 470
Md. 464, 497 (2020)). A Rule 8.1(b) violation “occurs when an attorney fails to timely
respond to lawful requests for information from Bar Counsel.” Id.The hearing judge found that Respondent “knowingly and intentionally
misrepresented to Bar Counsel that he did not send the January 6, 2021[,] email to Mr.
McGilvrey.” As noted, because no exceptions have been filed in this case, that finding is
deemed established. See Md. Rule 19-740(b)(2)(A). We hold that there is clear and
convincing evidence to support the Rule 8.1(a) violation.
As to the Rule 8.1(b) violation, the hearing judge concluded that, due to his July 27,
2021, reply to Mr. McGilvrey’s complaint, Respondent “was aware that Bar Counsel was
conducting an investigation” into his conduct. Thus, Respondent’s decision—on multiple
occasions—to ignore Bar Counsel’s requests for information and documents, as well as
his, at best, incomplete responses, constitute a Rule 8.1(b) violation. See Att’y Grievance
Comm’n v. Shuler, 454 Md. 200, 215 (2017) (sustaining Rule 8.1(b) violation where
attorney failed to “meaningfully answer” correspondence from Bar Counsel based on
attorney’s belated and “incomplete” answers).
Thus, we agree with the hearing judge that clear and convincing evidence exists to
support a violation of both Rule 8.1(a) and 8.1(b).
16
G. Rule 8.4
In pertinent part, Rule 8.4 states that
[i]t is professional misconduct for an attorney to:
(a) violate or attempt to violate the Maryland Attorneys’ Rules of
Professional Conduct, knowingly assist or induce another to do so, or do so
through the acts of another;
* * *
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation; [or]
(d) engage in conduct that is prejudicial to the administration of justice[.]
“Plainly and simply, an attorney violates ‘Rule 8.4(a) when he or she violates other
Rules of Professional Conduct.’” White, 480 Md. at 381 (quoting Att’y Grievance Comm’n
v. Powers, 454 Md. 79, 107 (2017)). By virtue of Respondent’s other sustained violations
herein, we agree with the hearing judge that Respondent also violated Rule 8.4(a).
Rule 8.4(c) “applies to a ‘broad universe’ of misconduct.” Att’y Grievance Comm’n
v. Daley, 476 Md. 283, 304 (2021) (quoting Att’y Grievance Comm’n v. McDonald, 437
Md. 1, 39 (2014)). Simply making a false statement that an attorney knows to be untrue is
enough to constitute conduct involving a misrepresentation and thus a violation of Rule
8.4(c). Karambelas, 473 Md. at 167–68; Att’y Grievance Comm’n v. Young, 473 Md. 94,
124 (2021). The hearing judge found that Respondent knowingly and intentionally
misrepresented in the January 6 email that Respondent filed the contempt motion, which
constituted a violation of Rule 8.4(c). We agree that this satisfies Petitioner’s burden to
prove this violation by clear and convincing evidence. We also hold that, by virtue of
Respondent’s 8.1(a) violation, he also violated Rule 8.4(c). See Daley, 476 Md. at 304
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(“We have previously held that violations of Rule 8.1(a) also constitute violations of Rule
8.4(c).”).
For purposes of Rule 8.4(d), whether conduct is prejudicial to the administration of
justice “turns on whether the conduct would negatively impact [the] perception of the legal
profession of a reasonable member of the public[.]” Att’y Grievance Comm’n v. Maiden,
480 Md. 1, 18–19 (2022) (alterations in original) (citations and internal quotation marks
omitted). The hearing judge concluded that Respondent’s failure to (1) provide prompt
and complete responses to Bar Counsel, (2) keep Mr. McGilvrey abreast of his case, and
(3) refund any unearned fees all was conduct that was prejudicial to the administration of
justice. All that conduct having been established, see Md. Rule 19-740(b)(2)(A), our
caselaw supports that each instance is enough, alone, to support a Rule 8.4(d) violation.
See Blair, 440 Md. at 404 (“An attorney can also violate 8.4(d) by failing to pursue his or
her client’s objectives, failing to communicate with his or her client, or withholding
unearned fees.” (emphasis added)); Att’y Grievance Comm’n v. Fox, 417 Md. 504, 538
(2010) (sustaining Rule 8.4(d) violation where attorney “failed to respond in a timely
manner to Bar Counsel’s inquiries”); Att’y Grievance Comm’n v. Reinhardt, 391 Md. 209,
222 (2006) (“Failure to represent a client in an adequate manner and lying to a client
constitute a violation of Rule 8.4(d).”). Thus, clear and convincing evidence supports the
Rule 8.4(d) violation.
VI
AGGRAVATING AND MITIGATING FACTORS
So that we may “devis[e] the appropriate sanction[,]” we consider in every attorney
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disciplinary matter the presence of any aggravating or mitigating factors. Att’y Grievance
Comm’n v. Bonner, 477 Md. 576, 584 (2022).
A. Aggravating Factors
Aggravating factors are ones that “militate in favor of a more severe sanction.” Att’y
Grievance Comm’n v. Culberson, 483 Md. 294, 324 (2023) (citation and internal quotation
marks omitted). It is Petitioner’s burden to prove any aggravating factor by clear and
convincing evidence. White, 480 Md. at 386; Md. Rule 19-727(c).
The hearing judge found the presence of eight aggravating factors: a dishonest or
selfish motive, a pattern of misconduct, multiple rule violations, bad faith obstruction of
the disciplinary proceeding, submission of false evidence or statements, a refusal to
acknowledge the misconduct’s wrongful nature, indifference to making restitution, and a
likelihood of repeating the misconduct.
The hearing judge concluded that Respondent evinced a selfish or dishonest motive
when he made a knowing and intentional misrepresentation to Mr. McGilvrey regarding
the status of the contempt motion; and failed to notify Mr. McGilvrey of the closure of
Respondent’s law practice, engage in the services for which he was retained, and refund
any unearned fees. The hearing judge likewise concluded that this conduct constituted a
“sustained course of misconduct” and that Respondent committed multiple rule violations.
The hearing judge concluded that Respondent engaged in bad faith obstruction of
the disciplinary proceeding by “intentionally failing to comply with the rules and orders of
the disciplinary agency” and the circuit court. Specifically, Respondent did not timely and
completely fulfill any of Bar Counsel’s requests or participate in the disciplinary process.
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Respondent made false statements to both Bar Counsel and Mr. McGilvrey, and he
“displayed a complete refusal to acknowledge the wrongful nature of his conduct and has
failed to demonstrate remorse.” According to the hearing judge, Respondent’s failure to
both respond to Bar Counsel or refund unearned fees demonstrates that he does not “accept
responsibility for his misconduct and illustrate[s] that he is indifferent to making
restitution.”
Lastly, due to the “breadth and extent of the misconduct and Respondent’s refusal
to acknowledge the misconduct’s wrongful nature[,]” the hearing judge concluded that
Respondent was likely to repeat his misconduct.
For the reasons articulated by the hearing judge, and because we have sustained all
MARPC violations, as alleged by the Commission, we conclude that clear and convincing
evidence exists to support the presence of the articulated aggravating factors.9
B. Mitigating Factors
On the other hand, mitigating factors counsel “in favor of a less severe sanction.”
Att’y Grievance Comm’n v. Trezevant, 484 Md. 34, 54 (2023). Respondent must prove
any mitigating factor by a preponderance of the evidence. White, 480 Md. at 386; Md.
9
We make one minor, clarifying point. The hearing judge concluded that an
applicable aggravating factor was Respondent’s bad faith obstruction of the disciplinary
proceeding by intentionally failing to comply with the Maryland Rules or orders from the
circuit court. The hearing judge, however, cited as facts to support that aggravating factor
only Respondent’s failure to completely and timely respond to Bar Counsel’s lawful
requests. The hearing judge made no findings regarding whether Respondent intentionally
violated any order from the circuit court. Thus, we agree with the hearing judge’s
conclusion that this aggravating factor applies, but only because Respondent flouted Bar
Counsel’s requests—not as to a violation of any order from the circuit court.
20
Rule 19-727(c).
Because Respondent did not participate in the disciplinary process or appear for the
disciplinary hearing, the hearing judge found that Respondent did not prove by a
preponderance of the evidence any mitigating factor. We agree. The burden allocated to
Respondent to prove any applicable mitigation necessarily contemplates, at the very least,
appearance at and involvement in the evidentiary hearing. Indeed, we have stated that “the
availability for consideration of mitigating factors cannot be undertaken where an attorney
neither attends his or her evidentiary hearing nor responds to Bar Counsel’s requests for
written responses to the client’s complaint[.]” Att’y Grievance Comm’n v. Kremer, 432
Md. 325, 340 (2013). Thus, “[m]itigation usually is not on the table” if the attorney fails
to provide “supporting evidence of the existence of [any mitigating] factors.” Id. at 339.
It follows that, where the attorney elects not to appear for his or her evidentiary hearing,
he or she forgoes the opportunity to submit any such evidence. Thus, there are no
mitigating factors applicable for our consideration.
VII
THE SANCTION
In fashioning the appropriate sanction, we must consider “the facts and
circumstances of each particular case, including consideration of any mitigating [and
aggravating] factors.” Bonner, 477 Md. at 607 (quoting Miller, 476 Md. at 223). Our goal
is not to punish the attorney; rather, we are guided—primarily—by “our interest in
protecting the public and the public’s confidence in the legal profession[,]” id. (quoting
McDonald, 437 Md. at 45), as well as our need to “effect general and specific deterrence[]”
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of future rule violations, id. (quoting Att’y Grievance Comm’n v. Shapiro, 441 Md. 367,
395 (2015)).
The Commission asks that we indefinitely suspend Respondent, primarily claiming
support for such a sanction from our opinion in Attorney Grievance Commission v. Kirwan,
450 Md. 447 (2016). We agree that Kirwan is sufficiently analogous to provide a basis for
the sanction of an indefinite suspension without specifying a time at which Respondent
may petition for reinstatement to the Bar of Maryland.
In Kirwan, the attorney violated the same rules that Respondent has here, except for
Rules 1.5(a), 8.1(a) and 8.4(c). 450 Md. at 454. There, the attorney failed to “take any
meaningful action towards pursuing her client’s claim[,]” which resulted in the claim being
barred by the statute of limitations, id. at 458, and “responded to only one of [her client’s]
numerous attempts to contact her from December 2013 to September 2014[,]” failing to
provide any further updates, id. at 460. The attorney in Kirwan also abandoned her client
when she ignored the client’s inquiry into whether the attorney was still handling the matter
and refused to communicate with successor counsel. Id. at 461–62. The attorney failed to
respond to four letters from Bar Counsel, and the manner in which she handled her client’s
case was prejudicial to the administration of justice. Id. at 462, 463. In Kirwan, five
aggravating factors were present (almost all overlapping with Respondent’s), and the
attorney likewise presented no evidence of any mitigating factors. Id. at 463–66. We
sanctioned the attorney with an indefinite suspension without specifying a minimum time
before application for reinstatement because her actions did “not involve dishonesty,” id.
at 466, and because there was “nothing in the record that would allow this Court to ‘divine
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an appropriate minimum “sit-out” period[,]’” id. at 467 (quoting Green, 441 Md. at 102).
True enough, Respondent’s conduct, as far as we can tell, did not result in the
permanent prejudice that the client in Kirwan suffered. See id. at 458. Fortunately, despite
Respondent’s lack of competence, diligence, and communication, Mr. McGilvrey was able
to retain successor counsel, and there is no evidence that Respondent’s actions resulted in
any permanent prejudice vis-à-vis the contempt motion. See id. Nevertheless, unlike the
attorney in Kirwan, Respondent’s violations entail dishonesty—to both his client and the
Commission. See id. at 466. Additional aggravating factors that are present here but absent
from Kirwan are Respondent’s refusal to acknowledge his misconduct’s wrongful nature
and a likelihood that he would repeat his misconduct. See id. at 463–65. Lastly, as
Respondent was almost wholly absent from the disciplinary process, we likewise have no
evidence in the record from which we can discern an appropriate amount of time that
Respondent should be suspended from the practice of law. See id. at 467; see also Att’y
Grievance Comm’n v. Ibebuchi, 471 Md. 286, 310 (2020) (noting that the Court could not
discern an appropriate “sit-out” time); Att’y Grievance Comm’n v. Moore, 447 Md. 253,
274 (2016) (“[W]e decline to set a minimum length for this indefinite suspension, because
we cannot say with any certainty how long it will take for Mr. Moore to make the necessary
progress toward being able to handle intimidating or confrontational situations with
techniques other than avoidance. It may be soon, or it may be never.”); Green, 441 Md. at
102 (“Because there is nothing in the record plumbing the reasons for Green’s misconduct
or the likelihood that recidivism is not a concern, . . . an open-ended indefinite suspension
is appropriate.”).
23
Thus, we are satisfied that the conduct we sanctioned in Kirwan—while slightly
differing from Respondent’s—is sufficiently analogous to Respondent’s conduct to merit
the same sanction: an indefinite suspension without specifying a minimum duration of time
after which Respondent may petition for reinstatement to the Bar of Maryland.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THIS COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 19-709(d), FOR
WHICH SUM JUDGMENT IS ENTERED
IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
DONALD DORIN DAVIS.
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