Attorney Grievance v. McCarthy , 473 Md. 462 ( 2021 )

Attorney Grievance Commission of Maryland v. Thomas McCarthy, Jr., Misc. Docket AG
No. 72, September Term, 2019
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Court of Appeals
disbarred attorney who, among other things, failed to file opening brief, appendix, or
motion to extend time on behalf of company that attorney represented, resulting in
dismissal of appeal, failed to inform owner of company of missed filing deadlines and
dismissal of appeal, knowingly and intentionally misrepresented to owner of company that
he was working on reinstating appeal, and failed to provide timely and complete responses
to Bar Counsel’s requests for information and documentation. Such conduct violated
Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 1.3 (Diligence), 1.4(a)(2)
(Keeping Client Reasonably Informed), 1.4(a)(4) (Consulting with Client About
Limitation on Attorney’s Conduct), 1.4(b) (Explaining Matter to Client), 1.16(a)(1)
(Terminating Representation), 5.5(a) (Unauthorized Practice of Law), 5.5(b)(2)
(Misrepresenting that Attorney is Admitted), 8.1(b) (Failing to Respond to Lawful Demand
for Information), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or
Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and
8.4(a) (Violating MARPC).
Circuit Court for Anne Arundel County
Case No. C-02-CV-20-000745
Argued: April 9, 2021
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 72
September Term, 2019
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
THOMAS MCCARTHY, JR.
______________________________________
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: May 27, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-05-27 10:55-04:00
Suzanne C. Johnson, Clerk
This attorney discipline proceeding involves an attorney who, among other
instances of misconduct, failed to file an opening brief, an appendix, or a motion to extend
time on behalf of a company in an appeal, resulting in the appeal being dismissed, and
made a knowing and intentional misrepresentation to the owner of the company that he
was working to have the appeal reinstated.
Thomas McCarthy, Jr., Respondent, a member of the Bar of Maryland, was retained
by Jonathan B. Radding to represent his company, View Point Medical Systems, LLC
(“View Point”), which was the appellant in an appeal before the United States Court of
Appeals for the Fourth Circuit. The underlying case began as a breach of contract action
in the Circuit Court for Baltimore City in which View Point was the plaintiff and the
defendant in the lawsuit had the case removed to the United States District Court for the
District of Maryland. On appeal, McCarthy failed to file an opening brief, an appendix, or
a motion to extend time on View Point’s behalf, resulting in dismissal of the appeal.
McCarthy knowingly and intentionally misrepresented to Radding that he was working on
reinstating the appeal and briefing schedule. In actuality, McCarthy never drafted or filed
a motion to reinstate the appeal or took any other steps to protect View Point’s claim.
Radding caused a complaint against McCarthy to be filed with Bar Counsel.1 Bar Counsel
made numerous requests for information and documentation, to which McCarthy
knowingly and intentionally failed to provide timely and complete responses.
1
Radding, a person who had suffered a brain injury, requested from Bar Counsel
assistance in completing the complaint form. An investigator for Bar Counsel telephoned
Radding and transcribed the complaint.
On February 24, 2020, on behalf of the Attorney Grievance Commission, Petitioner,
Bar Counsel filed in this Court a “Petition for Disciplinary or Remedial Action” charging
McCarthy with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
and Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)2 1.3 (Diligence),
1.4(a)(1) (Informing Client Regarding Informed Consent), 1.4(a)(2) (Keeping Client
Reasonably Informed), 1.4(a)(4) (Consulting with Client About Limitation on Attorney’s
Conduct), 1.4(b) (Explaining Matter to Client), 1.16(a)(1) (Terminating Representation),
5.5(a) (Unauthorized Practice of Law), 5.5(b)(2) (Misrepresenting that Attorney is
Admitted), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b)
(Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct
that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MLRPC or MARPC).
On March 4, 2019, this Court designated the Honorable Glenn L. Klavans (“the hearing
judge”) of the Circuit Court for Anne Arundel County to hear the attorney discipline
proceeding.
On August 7, 2020, in this disciplinary proceeding, Bar Counsel filed a Notice of
Service of Discovery Material, stating that, on August 1, 2020, through a process server,
Bar Counsel had served on McCarthy interrogatories, a request for production of
documents, and a request for admission of facts and genuineness of documents. Under the
2
Effective July 1, 2016, the MLRPC were renamed the MARPC and relocated to
Title 19 of the Maryland Rules, without substantive change. The misconduct at issue
occurred both before and after this change. In this case, after identifying the MLRPC and
MARPC that Bar Counsel charged McCarthy with violating, we will refer only to the
MARPC.
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Maryland Rules, responses to the discovery requests were due on August 31, 2020, thirty
days after the service of the discovery requests.3 In the request for admissions, Bar Counsel
asked McCarthy to admit the genuineness of twenty-eight attached exhibits4 and to admit
the following facts:
1. You were admitted to the Bar of the State of Maryland on June 14, 1989.
2. At all times relevant herein, you maintained an office for the practice of
law in Anne Arundel County, Maryland.
Representation of Jonathan B. Radding and View Point Medical
Systems, LLC
3. In January 2014, Jonathan B. Radding suffered a brain injury.
4. Mr. Radding’s injury causes him to experience overstimulation of brain
function, affects his short-term memory and affects his ability to converse
for lengthy periods of time.
5. Beginning in or about 2002, Mr. Radding owned View Point Medical
Systems, LLC (“View Point”). View Point was a healthcare technology
company.
6. In 2009 View Point began generating sales leads for Athena Health, Inc.
(“Athena”).
3
Responses to interrogatories, requests for production, and requests for admission
are due “within 30 days after service of the” interrogatories or requests “or within 15 days
after the date on which that party’s initial pleading or motion is required, whichever is
later.” Md. R. 2-421(b) (governing responses to interrogatories), 2-422(c) (governing
responses to requests for production), 2-424(b) (governing responses to requests for
admissions). Here, thirty days after the service of the discovery requests was August 31,
2020, which was later than fifteen days after the answer to the Petition for Disciplinary or
Remedial Action was due on May 5, 2020.
4
The twenty-eight attached exhibits included documents such as the docket entries
from the United States District Court for the District of Maryland and the United States
Court of Appeals for the Fourth Circuit for View Point’s case, text message exchanges
between McCarthy and Radding, and letters from Bar Counsel to McCarthy concerning
Radding’s complaint and requesting that McCarthy provide information.
-3-
7. On February 25, 2013, View Point filed a lawsuit against Athena in the
Circuit Court for Baltimore City alleging breach of contract.
8. On May 2, 2013, Athena removed the matter to the U.S. District Court for
the District Court of Maryland.
9. At the time the matter was removed to the U.S. District Court, View Point
was represented by Stephen Snyder, Esquire, Julia R. Arfaa, Esquire and
Gary A. Wais, Esquire.
10. On December 2, 2014, Mr. Radding retained your brother, Brennan C.
McCarthy, Esquire of Brennan McCarthy and Associates to represent View
Point.
11. On December 4, 2014, Brennan McCarthy, entered his appearance in the
U.S. District Court as successor counsel for View Point.
12. In early January 2015, you began assisting in the representation of View
Point and served as the main point of contact for Mr. Radding.
13. On February 18, 2016, Judge J. Frederick Motz granted Athena’s Motion
for Summary Judgment.
14. On March 1, 2016, Brennan McCarthy terminated his attorney-client
relationship with View Point and Mr. Radding.
15. On March 17, 2016, Brennan McCarthy filed a Notice of Appeal to the
U.S. Court of Appeals for the Fourth Circuit to protect View Point’s interests.
16. On March 18, 2016, the court entered a Briefing Order directing View
Point to file its opening brief and appendix by April 27, 2016.
17. On or about February 20, 2016, View Point retained you to represent it
in the Fourth Circuit.
18. On April 15, 2016, you entered your appearance and filed the required
Disclosure of Corporate Affiliations and Docketing Statement.
19. On May 2, 2016, the court entered an Order extending the briefing
schedule and directing View Point to file its opening brief and appendix by
June 2, 2016.
20. On June 2, 2016, you emailed counsel for Athena about requesting a
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mutual 8-day extension to the briefing schedule. You suggested extending
View Point’s filing deadline to June 9, 2016.
21. Opposing counsel agreed to an extension of the briefing schedule.
22. On June 7, 2016, you again emailed Athena’s counsel about extending
the briefing schedule and suggested moving View Point’s filing deadline to
June 13, 2016.
23. On June 8, 2016, with the consent of Athena’s counsel, you sent an
emailed the Chief Circuit Mediator to request assistance in seeking to modify
the briefing schedule. You explained that View Point’s brief was due on
June 2, 2016, but “that it requires additional time to complete and file its
brief” and sought an extension until June 13, 2016.
24. On June 8, 2016, a Rule 45 Notice was sent to you. The Notice stated
that the court had not received the required opening brief and appendix, and
that the case would be dismissed for failure to prosecute if the brief and a
motion to extend the filing time were not filed by June 23, 2016.
25. On June 22, 2016, you and Mr. Radding exchanged the following text
messages:
[Mr. Radding]: Whatever is going on in the court of appeals you can update
me with two sentences about the whole thing. I would like to know what is
going on so could you please give me an update thank you[.]
[You]: Jon for God’s sake I am drafting and filing the brief and record
extract. I will send you copy’s [sic] once filed. There is no further update
possible.
26. On June 23, 2016, Mr. Radding texted you: “Tom are we alive because I
thought today was the very last day. When you get the strength to type back
please get in touch and let me know how it went thank you[.]”
27. On June 24 and 25, 2016, you replied to Mr. Radding with the same
message: “Sorry, I can’t talk right now.”
28. At some time prior to June 24, 2016, you, without Mr. Radding’s
knowledge, determined that Mr. Radding was not competent to participate in
the litigation, and you made the decision to not file the brief. Mr. Radding
was scheduled to have surgery around this time, and you believed that
following the surgery, Mr. Radding would then be competent to participate
-5-
in on-going litigation.
29. You failed to file an opening brief or request an extension of time and on
June 24, 2016, the Fourth Circuit dismissed the appeal for failure to prosecute
pursuant to Local Rule 45.
30. You failed to advise Mr. Radding of the July 24, 2016 order.
31. On July 27, 2016, Mr. Radding sent a text message to you: “Is the case
against athenahealth [sic] still in the court of appeals?”
32. On June 28, 2016, you replied to Mr. Radding stating: “Sorry, I can’t talk
right now.”
33. On August 4, 2016, Mr. Radding sent you a series of text messages
inquiring about the status of the appeal and the dismissal for failure to file a
brief.
34. You replied to Mr. Radding stating: “I can call you in about half hour
[sic] – working on reinstating the case and modified briefing schedule[.]”
35. You knowingly and intentionally misrepresented to Mr. Radding that you
were “working on reinstating” the appeal.
36. You failed to draft or file any motion to reinstate the appeal or take any
steps to protect View Point’s claim.
Radding Foreclosure Matter
37. Beginning in March 2015, Mr. Radding’s home was the subject of a
foreclosure action in the Circuit Court for Anne Arundel County. Mr.
Radding retained Dallas Houston, Esquire to represent him in the matter.
38. On June 2, 2015, via email, Mr. Radding authorized Ms. Houston to
contact you as his personal attorney with any and all information regarding
the foreclosure.
39. You were included on emails between Mr. Radding and Ms. Houston,
and on occasion you would communicate directly with Ms. Houston
regarding the matter.
40. On or about September 5, 2015, Mr. Radding terminated his attorney-
client relationship with Ms. Houston.
-6-
41. On February 17, 2016, Brennan McCarthy filed a Chapter 13 Bankruptcy
Petition on behalf of Mr. Radding to stay the foreclosure case.
42. On March 10, 2016, the bankruptcy case was dismissed.
43. On July 1, 2016, the mortgage holder filed a Motion to Re-Open the
foreclosure proceeding.
44. On March 24, 2016, the Court of Appeals of Maryland temporarily
suspended you from the practice of law in Maryland for non-payment of the
annual assessment of the Client Protection Fund. You remained temporarily
suspended until February 16, 2017.
45. Between July 2016 and January 2017, you provided Mr. Radding with
legal advice and guidance in his foreclosure matter, including reviewing the
Motion to Re-Open, speaking to a representative of the mortgage serving
company and providing guidance on completing and filing a loss mitigation
package to delay the foreclosure.
Bar Counsel Investigation
46. In October 2017, Mr. Radding contacted the Office of Bar Counsel about
filing a complaint. Mr. Radding explained that due to his disability, he
required assistance with completing the complaint form. An investigator
from Bar Counsel’s Office, Marc Fiedler, contacted Mr. Radding by
telephone and transcribed the complaint. Mr. Radding provided Investigator
Fiedler with links to his Google Drive that included copious documents and
communications in connection with his complaint.
47. On July 25, 2018, Bar Counsel wrote to you, provided you with specific
questions about your representation of Mr. Radding, and requested a written
response by August 15, 2018.
48. You failed to provide a timely response to Bar Counsel’s July 25, 2018
letter.
49. On September 5, 2018, you requested an extension of the time to submit
your written response.
50. Bar Counsel granted your extension request and directed you to provide
your written response by September 19, 2018.
-7-
51. You failed to provide Bar Counsel with a response by the September 19,
2018 deadline.
52. On October 4, 2018, Bar Counsel wrote to you and requested a written
response to specific questions about the representation of Mr. Radding.
53. You failed to respond to Bar Counsel’s October 4, 2018 letter.
54. On November 29, 2018, Bar Counsel notified you that the matter had
been docketed for further investigation and requested information be
provided by December 10, 2018.
55. The Respondent failed to respond to Bar Counsel’s November 29, 2018
letter.
56. On December 21, 2018, Bar Counsel Investigator Cheryl Trivelli
interviewed you at Bar Counsel’s office.
57. On January 8, 2019, you provided a partial response to Bar Counsel’s
correspondence but failed to provide responses to all of Bar Counsel’s
specific questions regarding the matter.
58. On March 6, 2019, Bar Counsel wrote to you and enclosed a subpoena to
appear for a statement under oath on March 21, 2019 at 11:00 a.m. The
March 21 date had been cleared with you in advance.
59. On March 21, 2019 at 10:33 a.m., you contacted Bar Counsel by
telephone and email and requested the statement under oath be postponed to
allow you to retain counsel.
60. The statement under oath was rescheduled for April 4, 2019 at 11:00 a.m.
with your consent.
61. On the morning of April 4, 2019, at 11:11 a.m. you emailed Bar Counsel
a document entitled, “Chronology of Representation of Viewpoint Medical
Systems, LLC and Jonathan B. Radding.”
62. You appeared the morning of April 4, 2019, without counsel, for the
statement under oath.
63. During the statement under oath, you admitted that you had not provided
a complete response to Bar Counsel and stated: “But I have some hope that
in the next couple of days I’ll have the full response to you, to accompany
-8-
the-and I sent to you today, the chronology, because that’s sort of the big
background.”
64. You failed to provide any further response to Bar Counsel.
65. On May 3, 2019, Bar Counsel wrote to you again and requested a
response by May 10, 2019. Bar Counsel sent the letter by mail and email.
66. On May 3, 2019, you confirmed receipt of Bar Counsel’s emailed
correspondence.
67. You failed to respond to Bar Counsel’s May 3, 2019 letter.
68. You have never provided Bar Counsel with a complete written response
to Bar Counsel’s specific questions concerning your representation of Mr.
Radding.
69. The factual averments contained in the attached Exhibit 21 are true and
correct.[5]
(Alterations other than footnote in original).
On September 4, 2020—four days after responses to the discovery requests were
due—Bar Counsel e-mailed McCarthy, stating that responses to the discovery requests had
not been received and asking when McCarthy would provide them. McCarthy did not
respond to Bar Counsel’s e-mail. In a letter dated September 22, 2020, Bar Counsel
advised McCarthy that unless he provided responses to the discovery requests by
September 30, 2020, sanctions would be requested. On September 30, 2020, McCarthy e-
mailed Bar Counsel, stating that he would try to have the responses completed within the
“next several days[.]” On October 1, 2020, Bar Counsel e-mailed McCarthy, stating that
Bar Counsel would move for sanctions because responses to the discovery requests were
5
Exhibit 21 was a memorandum in which Trivelli summarized her December 21,
2018 interview of McCarthy.
-9-
more than thirty days past due and would consider withdrawing the motion for sanctions if
and when McCarthy provided responses to the discovery requests.
On October 5, 2020, McCarthy provided Bar Counsel with a response to the
interrogatories and a response to the request for production. In each response, under the
heading “General Objection[,]” McCarthy alleged that Bar Counsel had failed to comply
with service under Maryland Rule 1-321(a), which governs service of papers filed after the
original pleading, and that his response was provided without waiving the objection.
Specifically, McCarthy stated that Bar Counsel “sought to provide the Respondent with its
discovery requests as electronic files on an external media drive, requiring Respondent to
safely access the files through an independent computer, and to then create his own copies
of the requests[.]” McCarthy contended that service of discovery requests via an “external
media drive” failed to comply with Maryland Rule 1-321(a).
In response to the request for production of documents, McCarthy noted that Bar
Counsel had requested that responsive documents be produced for inspection and copying
at the Attorney Grievance Commission’s office within thirty days. McCarthy stated “that
a very large volume of documents responsive to the Requests exist in electronic form, on
Google Drive and similar storage platforms, and either are not amenable to production at
Petitioner’s office, or only at unnecessary and unreasonable expense.” McCarthy proposed
that the parties agree to a “reasonable and appropriate method” to permit Bar Counsel’s
access to the electronically stored information to be produced in discovery. In the answer
to an interrogatory asking McCarthy to “[i]dentify each person, other than a person
intended to be called as an expert witness at trial, having discoverable information that
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tends to support a position that [McCarthy] ha[d] taken or intend[ed] to take in this action
and state the subject matter of the information possessed by that person[,]” McCarthy
responded: “Brennan McCarthy, Wendy Hartman, Thomas Ryan McCarthy, Catherine C[.]
McCarthy, Patrick McCarthy, and Mr. Radding’s health care providers.”
On October 22, 2020, Bar Counsel e-mailed McCarthy and asked that he provide
the information necessary to view on Google Drive the electronic documents that he
mentioned in the response to the request for production of documents. Bar Counsel also
asked McCarthy to state the subject matter of the information possessed by the individuals
whom McCarthy listed in the answer to the interrogatory regarding people with
discoverable information other than expert witnesses and to identify the healthcare
providers referred to in the answer. Bar Counsel noted that McCarthy still had not provided
a response to the request for admissions and stated that Bar Counsel would move for
sanctions and move to shorten time to respond unless McCarthy responded by October 26,
2020.
On November 4, 2020, Bar Counsel filed with the hearing judge a motion for
sanctions and a motion to shorten the time in which McCarthy could respond to the motion
for sanctions to within five days of an order granting the motion to shorten time. In the
motion for sanctions, Bar Counsel advised that McCarthy had failed to provide any of the
discovery materials requested in Bar Counsel’s October 22, 2020 e-mail. Bar Counsel
requested that the hearing judge impose sanctions in the form of not allowing McCarthy to
present any documents at the disciplinary hearing, not allowing him to testify except as to
mitigation, and otherwise precluding him from calling witnesses. Alternatively, Bar
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Counsel requested that if the hearing judge declined to impose sanctions, the hearing judge
issue an order compelling McCarthy to provide the requested discovery materials within
five days of the order. In addition, Bar Counsel requested that the hearing judge order that
the facts and genuineness of the documents referred to in the request for admissions be
deemed admitted pursuant to Maryland Rule 2-424. McCarthy failed to file a response or
opposition to the motion for sanctions. On November 6, 2020, McCarthy provided Bar
Counsel with a response to the request for admissions.
On November 24, 2020, the hearing judge issued a memorandum opinion and order
granting the motion for sanctions. The hearing judge found that McCarthy “failed, after
proper service, to timely or properly respond to discovery requests[.]” The hearing judge
determined that McCarthy “engaged in a continuing pattern of delay and avoidance in
complying with his discovery obligations” and stated that McCarthy’s actions were similar
to the misconduct in which he had allegedly engaged. The hearing judge found that
McCarthy’s “discovery failures [were] purposeful and willful, designed to prejudice the
Petitioner and hinder the Court in the orderly progress of this matter.” The hearing judge
ordered that the facts and genuineness of the documents referred to in the request for
admission were deemed admitted. The hearing judge precluded McCarthy from presenting
any evidence that contradicted the facts or the documents referred to in the request for
admissions or that contradicted the averments in the Petition for Disciplinary or Remedial
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Action.6 The hearing judge allowed McCarthy to testify only about mitigation and
precluded him from calling witnesses except as to mitigation.
On November 30, 2020—the date on which the disciplinary hearing was scheduled
to occur—before 8:00 a.m., McCarthy filed with the hearing judge “Respondent’s Verified
Motion to Reconsider and to Vacate Order of November 24 2020 Imposing Sanctions” and
“Respondent’s Verified Motion to Strike Petitioner’s Notice of Discovery Materials[.]” In
both motions, McCarthy contended that service of the discovery requests via a “zip drive”
or “thumb drive” failed to comply with Maryland Rule 1-321(a), which he argued requires
service of paper copies. In the motion for reconsideration, McCarthy argued that, because
Bar Counsel failed to properly serve the request for admissions, the hearing judge was not
permitted to order that the facts and genuineness of the documents referred to in the request
for admissions were deemed admitted. With respect to the interrogatories and request for
production of documents, in addition to raising the issue concerning service, McCarthy
argued that, under Maryland Rule 2-432(a), which governs motions for sanctions, Bar
Counsel was not entitled to seek sanctions because the hearing judge had not issued an
order to compel and he had responded to the interrogatories and the request for production.
6
Although Bar Counsel requested in the motion for sanctions that the hearing judge
strike the answer to the Petition for Disciplinary or Remedial Action and order that the
averments in the petition were deemed admitted, the hearing judge did not do so. Under
Maryland Rules 19-724(c), 2-613, and 2-323(e), the averments in a petition for disciplinary
or remedial action are deemed admitted where a hearing judge issues an order of default
on the ground that the attorney has failed to timely file an answer to the petition. See
Attorney Grievance Comm’n v. Milton, 467 Md. 433, 437 n.2, 225 A.3d 415, 418 n.2
(2020). In this case, the hearing judge did not issue an order of default or order that the
averments in the Petition for Disciplinary or Remedial Action be deemed admitted but
ordered that McCarthy could not present evidence that contradicted the averments.
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Later that morning, when the hearing began, McCarthy requested that the hearing
judge address the motion for reconsideration. The hearing judge asked McCarthy why he
should reconsider the grant of the motion for sanctions when McCarthy had failed to file a
response or opposition to the motion. McCarthy stated that, in light of the responses to the
discovery requests, he did not think that a response to the motion for sanctions was
necessary. When answering additional questions by the hearing judge, McCarthy stated
that he was only able to access the discovery requests on the thumb drive at “a computer
shop” and that the files were Microsoft Word documents. Bar Counsel stated that the files
were actually PDFs, that McCarthy had not indicated that accessing the discovery requests
on the thumb drive would be a problem, and that, if he had encountered any trouble with
the thumb drive, he could have contacted Bar Counsel, who “would have provided some
alternate method.” McCarthy reiterated that Maryland Rule 1-321(a) requires that paper
copies be served and stated that he expended time and money printing the discovery
requests.
The hearing judge denied the motion for reconsideration, stating:
Mr. McCarthy, this is what I’m trying to understand is you’re talking
about a thumb drive which universally fits into almost every laptop or
desktop computer made that that the U in the U[SB] connection is universal
in one of two formats, either Word or PDF which are also ubiquitous which
are commonly accessible instantly. And it should have taken minimal, if any,
delay for you to access that drive. And you raise this issue post-motion for
the first time today.
I’m going to deny your motion. I believe proper and substantial
compliance with the rules were undertaken and you were properly served.
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So your motion for reconsideration is denied.[7]
After the hearing judge denied the motion for reconsideration, the disciplinary
hearing proceeded. Bar Counsel’s case consisted of offering into evidence a document that
was approximately 900 pages long, and that was comprised of the request for admissions
and the twenty-eight attached exhibits. Over McCarthy’s objection, the hearing judge
admitted the document into evidence. The only witness at the evidentiary hearing was
McCarthy, who testified about mitigation.
On January 20, 2021, the hearing judge filed in this Court an opinion including
findings of fact and conclusions of law, determining that McCarthy had violated MARPC
1.3, 1.4(a), 1.4(b), 1.16(a)(1), 5.5(a), 5.5(b)(2), 8.1(b), 8.4(b), 8.4(c), 8.4(d), and 8.4(a).
On February 9, 2021, in this Court, McCarthy filed “Respondent’s Exceptions to
Circuit Court’s Findings of Fact and Conclusion[s] of Law[.]” In his exceptions, McCarthy
states that he excepts to the hearing judge’s findings and conclusions because he was
denied the opportunity to present a defense. McCarthy requests that we designate a new
hearing judge and order a new evidentiary hearing, at which he would be permitted to
present evidence in defense of Bar Counsel’s allegations. McCarthy contends that, under
Maryland Rule 2-432(a), the hearing judge erred in granting the motion for sanctions
because Bar Counsel did not file a motion to compel and because he had already responded
to the interrogatories and request for production. McCarthy argues that the hearing judge
7
In his opinion, the hearing judge indicated that both the motion for reconsideration
and the motion to strike had been denied on November 30, 2020. A review of the transcript
of the disciplinary hearing, however, reveals that the hearing judge did not rule on the
motion to strike.
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erred in ordering that the facts and genuineness of the documents referred to in the request
for admissions were deemed admitted and in granting the motion for sanctions because Bar
Counsel failed to provide service with paper copies of the discovery requests, which he
contends is required by Maryland Rule 1-321(a).
On April 9, 2021, we heard oral argument. Upon a careful review of the record and
the applicable Maryland Rules, we deny McCarthy’s request for a new evidentiary hearing.
McCarthy’s contention that the hearing judge erred in granting the motion for
sanctions in the absence of Bar Counsel having first filed a motion to compel does not
warrant a new evidentiary hearing because McCarthy waived or forfeited the contention
and because the hearing judge’s grant of the motion for sanctions did not result in prejudice.
As to waiver or forfeiture, McCarthy failed to file a response or opposition to the motion
for sanctions at any time—whether by the due date for filing a response or before the
hearing judge granted the motion for sanctions on November 24, 2020. Moreover,
McCarthy did not raise with the hearing judge the necessity of a motion to compel until he
filed the motion for reconsideration on November 30, 2020, the day of the disciplinary
hearing.
In addition to waiver or forfeiture, the hearing judge’s grant of the motion for
sanctions did not result in prejudice to McCarthy, given that, as discussed below, the facts
and genuineness of the documents referred to in the request for admissions were
automatically deemed admitted pursuant to Maryland Rule 2-424(b) once McCarthy
missed the deadline for responding to the request. Any evidence that McCarthy would
have presented at the disciplinary hearing but for the hearing judge’s grant of the motion
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for sanctions would not have negated the facts set forth in the request for admissions that
were deemed admitted by operation of Maryland Rule 2-424(b). For example, at oral
argument in this Court, after being asked whether he could provide a proffer or summary
of the evidence that he would have presented at the disciplinary hearing but for the hearing
judge’s grant of the motion for sanctions, McCarthy stated that he would have presented
evidence of his communications with Radding that would have proven that he did not make
a misrepresentation to Radding. McCarthy also stated that he would have presented
evidence of Radding’s emotional and mental condition, which allegedly precluded him
(McCarthy) from filing an opening brief on View Point’s behalf. The proffered evidence
of communications with Radding would not have voided a finding that McCarthy made a
knowing and intentional misrepresentation to Radding by telling him that he was working
on reinstating the appeal, as that was a fact that was deemed to have been admitted.
Similarly, the proffered evidence of Radding’s emotional and mental condition would have
been of no impact because McCarthy was deemed to have admitted that, without Radding’s
knowledge, he determined that Radding was not competent to participate in the litigation
and decided on his own not to file an opening brief on View Point’s behalf. In addition, it
was already deemed admitted that McCarthy failed to file an opening brief or request an
extension of time to do so and that, on June 24, 2016, the appeal was dismissed and
McCarthy failed to advise Radding of the dismissal.
We are aware that Maryland Rule 2-432(a), which governs motions for sanctions,
states in pertinent part:
A discovering party may move for sanctions under Rule 2-433(a), without
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first obtaining an order compelling discovery under section (b) of this Rule,
if a party or any officer, director, or managing agent of a party or a person
designated under Rule 2-412 (d) to testify on behalf of a party, fails to appear
before the officer who is to take that person’s deposition, after proper notice,
or if a party fails to serve a response to interrogatories under Rule 2-421 or
to a request for production or inspection under Rule 2-422, after proper
service.
In other words, under Maryland Rule 2-432(a), “[a] discovering party may move for
sanctions” in two scenarios—where there is an order compelling discovery or where there
is a complete failure to appear for a deposition or to respond to interrogatories or a request
for production or inspection.
Here, although Bar Counsel requested, as an alternative form of relief in the motion
for sanctions, an order compelling McCarthy to provide the requested discovery materials,
the hearing judge never issued an order compelling discovery. And, when Bar Counsel
filed the motion for sanctions, there had not been a complete failure to respond to the
interrogatories and request for production. To be sure, before Bar Counsel filed the motion
for sanctions, McCarthy responded to the interrogatories and the request for production, as
Bar Counsel readily acknowledged in the motion for sanctions. In this case, though,
McCarthy waived or forfeited any issue as to the propriety of the hearing judge’s grant of
the motion for sanctions by failing to file a response or opposition to the request for
sanctions.
Similarly, McCarthy is not entitled to a new evidentiary hearing based on his
contention that the hearing judge erred in ordering that the matters referred to in the request
for admissions were deemed admitted and in granting the motion for sanctions because Bar
Counsel failed to effect service as required by Maryland Rule 1-321(a), i.e., Bar Counsel
- 18 -
provided service with a thumb drive instead of paper copies of the request for admissions
and other discovery requests. As with the argument regarding the need for a motion to
compel, McCarthy waived or forfeited this assertion by failing to timely raise it before the
hearing judge.
McCarthy failed to file a motion challenging the sufficiency of the service of the
request for admissions or the discovery requests8 for that matter at any time in the thirty
days between service on August 1, 2020 and the deadline for responding to the request for
admissions and other discovery requests. As such, the facts and genuineness of the
documents referred to in the request for admissions were automatically deemed admitted
by operation of Maryland Rule 2-424(b) after McCarthy’s failure to timely respond on
August 31, 2020. Maryland Rule 2-424(b) provides in pertinent part:
8
For example, McCarthy could have filed a motion to strike service or a motion for
a protective order. McCarthy knew that the thumb drive served upon him contained
discovery requests and a request for admissions because Bar Counsel attached a document
to the thumb drive stating so. In a motion to strike service, McCarthy could have argued
that strict compliance with Maryland Rule 1-321(a) was required. As to a motion for a
protective order, Maryland Rule 2-403(a)(3) provides in pertinent part:
On motion of a party, a person from whom discovery is sought, . . . for good
cause shown, the court may enter any order that justice requires to protect a
party or person from . . . undue burden or expense, including one or more of
the following: . . . that the discovery may be had only on specified terms and
conditions, including an allocation of the expenses[.]
In a motion for a protective order, McCarthy could have advised the hearing judge that he
believed he was entitled to paper copies of the discovery requests, contended that printing
them himself was an “undue burden or expense,” and requested an order that discovery
occur with the condition that Bar Counsel provide him with paper copies of the discovery
requests. Md. R. 2-403(a)(3). McCarthy, however, failed to file a motion to strike service,
a motion for a protective order, or to otherwise timely bring the matter to the hearing
judge’s attention in any way.
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Each matter of which an admission is requested shall be deemed admitted
unless, within 30 days after service of the request or within 15 days after the
date on which that party’s initial pleading or motion is required, whichever
is later, the party to whom the request is directed serves a response signed by
the party or the party’s attorney.
Under the plain language of Maryland Rule 2-424(b), each matter referred to in a request
for admissions is automatically deemed admitted where the party to whom the request is
directed misses or ignores the deadline for responding to the request. There is no need for
the other party to seek, or for the trial court to issue, an order that the matters referred to in
a request for admissions are deemed admitted. Maryland Rule 2-432, which governs
motions to compel and motions for sanctions, and Maryland Rule 2-433, which governs
sanctions themselves, do not mention admissions, because no motion for sanctions or court
order is necessary for matters referred to in a request for admissions to be deemed admitted.
Like the plain language of Maryland Rule 2-424(b), our attorney discipline case law
confirms as much. As we stated in Attorney Grievance Comm’n v. Barton, 442 Md. 91,
120-21, 110 A.3d 668, 685 (2015), “Maryland Rule 2-424(b) provides that any matter for
which an admission is requested is deemed admitted if a party fails to respond to the request
within 30 days.” (Footnote omitted). In other words, “one may make an admission by
timely filing a response to the request; however, by its terms, see Rule 2-424(b), that same
result occurs by default whenever the request for admissions is not timely responded to.”
Attorney Grievance Comm’n v. Robertson, 400 Md. 618, 635, 929 A.2d 576, 586 (2007).
By way of illustration, in Attorney Grievance Comm’n v. Kapoor, 391 Md. 505, 530, 894
A.2d 502, 517 (2006), this Court stated that, “[b]ecause Respondent did not respond to
Petitioner’s Request for Admission of Facts and Genuineness of Documents, each matter
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of which an admission was requested was deemed admitted and conclusively established
as a matter of law.” (Citing Md. R. 2-424).
In this case, as a practical matter, McCarthy had the opportunity to view the request
for admissions as soon as the thumb drive was served on him on August 1, 2020. To be
sure, in the responses to the interrogatories and the request for production, in the motions
for reconsideration and to strike, and at oral argument, McCarthy indicated that he was
unwilling to plug the thumb drive into his computer. McCarthy, however, always had the
option of doing so, which would have allowed him to immediately view the request for
admissions. As the hearing judge pointed out when addressing the motion for
reconsideration at the beginning of the disciplinary hearing, McCarthy could have plugged
the thumb drive into nearly any computer, and it should have taken him minimal time to
view the contents of the thumb drive. Indeed, McCarthy responded to the request for
admissions on November 6, 2020, which demonstrates that he was plainly able to access
the request for admissions in the form in which Bar Counsel provided it.
That said, McCarthy is correct that Maryland Rule 1-321(a) generally contemplates
that a party will serve paper copies of discovery requests. Maryland Rule 1-321(a) governs
service of papers filed after the original pleading and states:
Except as otherwise provided in these rules or by order of court, every
pleading and other paper filed after the original pleading shall be served upon
each of the parties. If service is required or permitted to be made upon a
party represented by an attorney, service shall be made upon the attorney
unless service upon the party is ordered by the court. Service upon the
attorney or upon a party shall be made by delivery of a copy or by mailing it
to the address most recently stated in a pleading or paper filed by the attorney
or party, or if not stated, to the last known address. Delivery of a copy within
this Rule means: handing it to the attorney or to the party; or leaving it at the
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office of the person to be served with an individual in charge; or, if there is
no one in charge, leaving it in a conspicuous place in the office; or, if the
office is closed or the person to be served has no office, leaving it at the
dwelling house or usual place of abode of that person with some individual
of suitable age and discretion who is residing there. Service by mail is
complete upon mailing.
The use of the phrase “delivery of a copy” in Maryland Rule 1-321(a) suggests that delivery
of a physical copy—i.e., a paper copy—is anticipated. This Court adopted Maryland Rule
1-321 in 1984, before electronic documents were as ubiquitous as they are today. Despite
the growth in use of electronic documents and media in the decades since then, this Court
has not amended Maryland Rule 1-321 to indicate that delivery of a copy may include
electronic documents or copies.
In this case, though, McCarthy failed to timely bring to the hearing judge’s attention
any contention that service of the request for admissions via a thumb drive did not strictly
comply with Maryland Rule 1-321(a). Instead, McCarthy belatedly responded (over two
months after the response was due) to the request for admissions, which he had access to
from the day Bar Counsel served the request on him, and on the day of the disciplinary
hearing filed a motion to strike notice of service. Plainly, McCarthy waived or forfeited
any issue as to service of the request for admissions (as well as the service of the other
discovery requests), and the facts and genuineness of the documents referred to in the
request for admissions were automatically deemed admitted by operation of Maryland Rule
2-424(b). Simply put, with regard to both of the preliminary issues that he raises, i.e., the
need for a motion to compel and sufficiency of service, McCarthy sat on his hands. Before
the hearing judge, he failed to take any timely action whatsoever as to either matter. As
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such, there is no basis for determining an abuse of discretion on the hearing judge’s part in
denying the motion for reconsideration.
We now turn to the merits of the attorney discipline proceedings. For the below
reasons, we disbar McCarthy.
BACKGROUND
The hearing judge found the following facts, which we summarize.
On June 14, 1989, this Court admitted McCarthy to the Bar of Maryland. At all
relevant times, McCarthy maintained an office for the practice of law in Anne Arundel
County.
McCarthy’s Representation of View Point in Breach of Contract Case
In or about 2002, Radding established View Point, a healthcare technology
company. On February 25, 2013, in the Circuit Court for Baltimore City, View Point sued
Athena Health, Inc. (“Athena”) for breach of contract. On May 2, 2013, Athena removed
the case to the United States District Court for the District of Maryland. Eventually, Athena
moved for summary judgment.
In 2014, Radding suffered a brain injury that caused him to experience
overstimulation of brain functions, affected his short-term memory, and limited his ability
to verbally communicate for extended periods of time. The hearing judge found that
McCarthy knew about Radding’s condition, as he acknowledged so in the answer to the
Petition for Disciplinary or Remedial Action and while testifying at the evidentiary hearing.
In or about December 2014, Radding terminated the representation of the attorney who had
been representing View Point in the contract case and retained McCarthy’s brother to
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represent View Point. In January 2015, McCarthy began assisting his brother in the
representation of View Point and began serving as the main point of contact for Radding.
On February 18, 2016, the United States District Court for the District of Maryland
granted the motion for summary judgment against View Point and entered judgment in
Athena’s favor. In March 2016, on View Point’s behalf, McCarthy’s brother filed a notice
of appeal to the Fourth Circuit. In the same month, McCarthy’s brother terminated his
representation of View Point.
On March 18, 2016, the Fourth Circuit issued a briefing order directing View Point
to file an opening brief and an appendix by April 27, 2016. On or about April 15, 2016,
Radding retained McCarthy to represent View Point before the Fourth Circuit, and
McCarthy entered his appearance on View Point’s behalf in the Fourth Circuit.9 On May
2, 2016, the Fourth Circuit issued an order changing the briefing schedule and directing
View Point to file an opening brief and an appendix by June 2, 2016. On June 8, 2016, the
Fourth Circuit sent McCarthy a notice stating that it had not received an opening brief and
an appendix on View Point’s behalf and that the Fourth Circuit would dismiss the appeal
for failure to prosecute unless View Point filed an opening brief, an appendix, and a motion
to extend time by June 23, 2016. McCarthy failed to file an opening brief, an appendix, or
a motion to extend time on View Point’s behalf and failed to inform Radding of the
shortfalls.
9
According to the request for admissions, McCarthy was retained to represent View
Point before the Fourth Circuit on or about February 20, 2016, and McCarthy entered his
appearance on View Point’s behalf before the Fourth Circuit on April 15, 2016.
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On June 22, 2016, Radding sent McCarthy a text message that stated: “Whatever is
going on in the court of appeals you can update me with two sentences about the whole
thing. I would like to know what is going on so could you please give me an update thank
you[.]” Later on the same day, McCarthy sent Radding a text message that stated: “Jon for
God’s sake I am drafting and filing the brief and record extract. I will send you copy’s
[sic] once filed. There are no further updates possible.” (Brackets added by the hearing
judge). On June 23, 2016—the deadline for View Point to file an opening brief, an
appendix, and a motion to extend time—Radding sent McCarthy a text message that stated:
“Tom are we alive because I thought today was the very last day. When you get the
strength to type back please get in touch and let me know how it went thank you[.]” On
June 24 and 25, 2016, McCarthy sent Radding text messages that stated: “Sorry, I can’t
talk right now.”
On June 24, 2016, the Fourth Circuit issued an order dismissing the appeal for
failure to prosecute. McCarthy failed to inform Radding of the dismissal of the appeal.
Between June and July 2016, Radding sent McCarthy several text messages inquiring about
the status of the appeal. McCarthy sent Radding a text message in reply to each that stated:
“Sorry, I can’t talk right now.”
At some point, Radding learned on his own that the Fourth Circuit had dismissed
the appeal. On August 4, 2016, Radding sent McCarthy multiple text messages inquiring
about the status of the appeal and the dismissal. Later on the same day, McCarthy sent
Radding a text message that stated: “I can call you in about half hour – working on
reinstating the case and modified briefing schedule[.]” McCarthy never drafted or filed a
- 25 -
motion to reinstate the appeal or took any other steps to protect View Point’s claim. The
hearing judge found that McCarthy’s statement “was a knowing and intentional
misrepresentation made in an attempt to placate Mr. Radding and conceal the fact that the
Respondent had not actually made any effort at all to reinstate View Point’s appeal[.]”
McCarthy’s Representation of Radding in Foreclosure Case
In March 2015, Radding’s home became the subject of a foreclosure case in the
Circuit Court for Anne Arundel County. In September 2015, Radding terminated the
representation of the attorney who had been representing him in the foreclosure case. In
October 2015, Radding began exclusively relying on advice from McCarthy concerning
the foreclosure case.
On March 24, 2016, this Court temporarily suspended McCarthy from the practice
of law in Maryland for nonpayment of the annual assessment to the Client Protection Fund.
McCarthy failed to inform Radding of the suspension and continued to provide him with
advice concerning the foreclosure case, including guidance regarding the completion of a
loss mitigation package. Additionally, on Radding’s behalf and as his counsel, during the
time of the suspension, McCarthy communicated with representatives of the mortgage
servicing company. On February 16, 2017, this Court reinstated McCarthy to the practice
of law in Maryland.
Bar Counsel’s Investigation
In October 2017, Radding caused a complaint against McCarthy to be filed with Bar
Counsel. On July 25, 2018, Bar Counsel wrote to McCarthy and requested information
regarding his representation of Radding by August 15, 2018. McCarthy failed to timely
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respond. On September 5, 2018, McCarthy requested an extension of time to respond to
Bar Counsel’s request for information. Bar Counsel granted the request and directed
McCarthy to submit a written response by September 19, 2018. McCarthy again failed to
respond.
On October 4, 2018, Bar Counsel wrote to McCarthy and requested a written
response by October 19, 2018. McCarthy once again failed to respond. On November 29,
2018, Bar Counsel notified McCarthy that the matter had been docketed for further
investigation and requested a written response by December 10, 2018. McCarthy yet again
failed to respond.
An investigator for Bar Counsel contacted McCarthy and arranged to interview him
on December 21, 2018. McCarthy appeared for the interview but failed to bring a written
response to Bar Counsel’s request for information. On January 8, 2019, McCarthy
provided a partial response to Bar Counsel’s request for information.
Bar Counsel communicated with McCarthy and confirmed with him that he would
be available for a statement under oath on March 21, 2019. On March 6, 2019, Bar Counsel
wrote to McCarthy and enclosed a subpoena to appear for a statement under oath on March
21, 2019 at 11:00 a.m. On March 21, 2019, at 10:33 a.m., McCarthy contacted Bar Counsel
by telephone and e-mail and requested that the statement under oath be postponed to give
him time to retain counsel. With McCarthy’s consent, Bar Counsel rescheduled the
statement under oath for April 4, 2019 at 11:00 a.m.
On April 4, 2019, at 11:11 a.m., McCarthy e-mailed Bar Counsel a document
entitled: “Chronology of Representation of View[ P]oint Medical Systems, LLC and
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Jonathan B. Radding.” In the document, McCarthy failed to respond to Bar Counsel’s
questions regarding his representation of Radding. At approximately 11:35 a.m., without
counsel, McCarthy appeared for the statement under oath. While giving the statement
under oath, McCarthy stated that he intended to provide Bar Counsel with a full written
response “in the next couple of days.” McCarthy failed to provide Bar Counsel with an
additional response.
On May 3, 2019, Bar Counsel wrote to McCarthy and requested a response by May
10, 2019. McCarthy e-mailed Bar Counsel to confirm that he received the letter but failed
to otherwise respond in any manner.
Aggravating Factors and Mitigating Factors
The hearing judge found seven aggravating factors. First, the hearing judge found
that McCarthy had a dishonest or selfish motive, given that he “made a knowing and
intentional misrepresentation of material fact to a client in an effort to conceal the extent
of his misconduct.” Second and third, the hearing judge found that McCarthy engaged in
a pattern of misconduct and multiple violations of the MARPC, given that McCarthy
violated numerous MARPC when representing View Point and Radding and during Bar
Counsel’s investigation. Fourth, the hearing judge found that McCarthy engaged in bad
faith obstruction of this attorney discipline proceeding, as shown by his knowing and
intentional failure to comply with Bar Counsel’s many requests for information during Bar
Counsel’s investigation and his purposeful failure to provide timely responses to discovery
requests. Fifth, the hearing judge found that McCarthy refused to acknowledge the
wrongful nature of his misconduct and attempted to blame Radding for his own failures.
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Sixth, the hearing judge found that Radding, the victim, had suffered a brain injury in 2014,
which affected his memory and ability to communicate verbally, that McCarthy knew as
much, and that, as such, McCarthy “had a heightened responsibility to protect the interests
of his client and truthfully, timely and fully communicate with him, as well as prosecute
his interests in all legal matters for which he was entrusted.” The hearing judge noted that,
in mitigation testimony, McCarthy attempted to use Radding’s medical and mental
conditions as an excuse for his misconduct and stated that McCarthy had “demonstrated a
profound lack of understanding, empathy and remorse for a vulnerable victim.” Seventh,
the hearing judge found that McCarthy had substantial experience in the practice of law,
given that he was admitted to the Bar of Maryland in 1989.
The hearing judge found that McCarthy’s misconduct was mitigated by the absence
of prior attorney discipline and good character and reputation.10 The hearing judge
determined that McCarthy failed to establish, by a preponderance of the evidence, that his
misconduct was mitigated by personal or emotional problems or the unlikelihood of
repetition of his misconduct. The hearing judge “categorically rejected” McCarthy’s
“breathtaking assertion” at the disciplinary hearing that Radding “caused him emotional
problems to the extent that he missed filing deadlines and then lied to” Radding. The
10
At the disciplinary hearing, over Bar Counsel’s objection, the hearing judge
permitted McCarthy to testify about his own character and reputation. McCarthy testified
that he had previously worked as an official with the World Bank and was responsible for
and accepted as an expert in “global integrity, especially international -- in internationally
financed development projects.” McCarthy testified that he has a reputation for providing
pro bono assistance “for people who have needs not only here in the United States, but also
abroad.” McCarthy added that he had performed work for a number of clients on a pro
bono basis in the District of Columbia in landlord-tenant matters.
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hearing judge stated that, at the disciplinary hearing, after he asked McCarthy to address
the alleged unlikelihood of repetition of his misconduct, McCarthy “continued to blame”
Radding “and never even addressed the mechanics of meeting deadlines, truthfully
communicating with clients or seeking to decline further representation and striking one’s
appearance when appropriate.”11
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact and reviews without deference a hearing judge’s conclusions of
law. See Md. R. 19-741(b)(2)(B); Attorney Grievance Comm’n v. Slate, 457 Md. 610,
626, 180 A.3d 134, 144 (2018); Md. R. 19-741(b)(1). This Court determines whether clear
and convincing evidence establishes that a lawyer violated an MARPC. See Md. R. 19-
727(c).
DISCUSSION
(A) Findings of Fact
With the exception of his request for a new evidentiary hearing, which is addressed
above, McCarthy does not specifically except to the hearing judge’s findings of fact. Bar
Counsel does not except to any of the hearing judge’s findings of fact. Under Maryland
11
At the disciplinary hearing, McCarthy testified that “significant emotional and
personal issues [] arose here primarily because of the behavior that was exhibited by”
Radding and that Radding was “an extremely difficult client. He was suffering from a
number of physical ailments but also mental ailments.” Later, the hearing judge brought
up the mitigating factor of unlikelihood of repetition of misconduct and asked McCarthy
how, in the future, he would deal with missed deadlines, a difficult client, or a client with
a disability. When responding to the hearing judge’s question, McCarthy testified that
Radding caused him “emotional distress[,]” which “clouded[ his] judgment[.]”
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Rule 19-741(b)(2)(A), where neither Bar Counsel nor the respondent excepts to a hearing
judge’s findings of fact, this Court “may treat the findings of fact as established.” In other
words, Maryland Rule 19-741(b)(2)(A) gives this Court the discretion to treat findings of
fact as established in the absence of exceptions to those findings. See Attorney Grievance
Comm’n v. Colton-Bell, 434 Md. 553, 572, 76 A.3d 1096, 1107 (2013). In this case, we
exercise our discretion to treat the hearing judge’s findings of fact as established.
(B) Conclusions of Law
Again, other than the request for a new evidentiary hearing, McCarthy does not
specifically except to the hearing judge’s conclusions of law and Bar Counsel has no
exceptions. To the extent that the hearing judge determined that McCarthy violated
MARPC 1.4(a)(3), we do not sustain the violation as Bar Counsel did not charge a violation
of the subsection in the Petition for Disciplinary or Remedial Action. We uphold the
remainder of the hearing judge’s conclusions of law.
MARPC 1.3 (Diligence)
“An attorney shall act with reasonable diligence and promptness in representing a
client.” MARPC 1.3. The hearing judge concluded that McCarthy violated MARPC 1.3
in the following three instances. First, McCarthy failed to file an opening brief or an
appendix on View Point’s behalf by the initial June 2, 2016 deadline. Second, McCarthy
failed to file an opening brief, an appendix, or a motion to extend time on View Point’s
behalf by the June 23, 2016 deadline. Third, McCarthy failed to adequately communicate
with Radding about the appeal. Clear and convincing evidence supports the hearing
judge’s conclusions. By failing to meet more than one filing deadline and failing to
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conscientiously communicate with Radding, McCarthy failed to act with reasonable
diligence and promptness.
MARPC 1.4 (Communication)
MARPC 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
(f) (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
(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 [MARPC] 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.
The hearing judge concluded that McCarthy violated MARPC 1.4(a) and 1.4(b) in
the following four instances. First, McCarthy failed to inform Radding that he had failed
to file an opening brief or an appendix on View Point’s behalf by the June 2, 2016 deadline
and that he had failed to file an opening brief, an appendix, or a motion to extend time on
View Point’s behalf by the June 23, 2016 deadline. Second, on June 22, 2016, McCarthy
misstated to Radding that he was “drafting and filing the brief and record extract.” Third,
on August 4, 2016, McCarthy knowingly and intentionally misrepresented to Radding that
he was “working on reinstating the case and modified briefing schedule[.]” Fourth,
McCarthy failed to inform Radding that, on March 24, 2016, this Court suspended him
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from the practice of law in Maryland for nonpayment of the annual assessment to the Client
Protection Fund. The hearing judge also concluded that McCarthy violated MARPC 1.4
by “failing to provide substantive and truthful responses to Mr. Radding’s numerous
requests for information regarding the appeal.”12
Given that MARPC 1.4(a)(2) requires an attorney to “keep the client reasonably
informed about the status of the matter” and that MARPC 1.4(b) requires an attorney to
“explain a matter to the extent reasonably necessary to permit the client to make informed
decisions regarding the representation[,]” it is plain that the hearing judge’s conclusion that
McCarthy violated MARPC 1.4(a) and 1.4(b) is supported by clear and convincing
evidence. McCarthy did not inform Radding of his failures to meet filing deadlines,
misstated to Radding that he was drafting and filing a brief and record extract, and
knowingly and intentionally misrepresented to Radding that he was working on reinstating
the appeal. Knowing of McCarthy’s failure to meet filing deadlines and misrepresentations
necessarily would have assisted Radding in making informed decisions about the
representation, including whether to terminate McCarthy’s representation of View Point.
MARPC 1.4(a)(4) requires an attorney to “consult with the client about any relevant
limitation on the attorney’s conduct when the attorney knows that the client expects
12
Although Bar Counsel charged McCarthy with violating MARPC 1.4(a)(1), the
hearing judge does not appear to have concluded that McCarthy violated that provision,
which requires an attorney to “promptly inform the client of any decision or circumstance
with respect to which the client’s informed consent . . . is required[.]” Nothing in the
hearing judge’s findings of fact indicates that McCarthy was ever required to obtain
Radding’s informed consent. And, as mentioned above, Bar Counsel did not charge
McCarthy with violating MARPC 1.4(a)(3), which requires an attorney to “promptly
comply with reasonable requests for information.”
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assistance not permitted by the [MARPC] or other law.” The hearing judge’s conclusion
that McCarthy violated MARPC 1.4(a)(4) by failing to inform Radding of his suspension
from the practice of law in Maryland for nonpayment of the annual assessment to the Client
Protection Fund is also supported by clear and convincing evidence.13
MARPC 1.16(a)(1) (Terminating Representation), 5.5(a) (Unauthorized Practice of
Law), 5.5(b)(2) (Misrepresenting that Attorney is Admitted), and 8.4(b) (Criminal
Act)
The hearing judge concluded that McCarthy violated MARPC 1.16(a)(1), 5.5(a),
5.5(b)(2), and 8.4(b). MARPC 1.16(a)(1) provides that “an attorney shall not represent a
13
We are mindful that MARPC 1.4(a)(4) requires that the attorney know that the
client expects assistance not permitted by law and that the hearing judge did not expressly
conclude that McCarthy knew he had been suspended from the practice of law in Maryland.
It is an attorney’s obligation to keep current the attorney’s contact information with the
Client Protection Fund and to satisfy the annual assessment obligation. In 2016, at the time
that McCarthy was suspended from the practice of law in Maryland for nonpayment of the
annual assessment to the Client Protection Fund, Maryland Rule 16-811.5(b) (2016)
required that each attorney provide to the trustees of the Client Protection Fund written
notice “of every change in the attorney’s resident address, business address, e-mail address,
telephone number, or facsimile number within 30 days of the change” and provided that
the trustees had “the right to rely on the latest information received by them for all billing
and other correspondence.” Maryland Rule 16-811.6(b)(1) (2016) provided that the
trustees send a delinquency notice to an attorney about the failure to pay the annual
assessment and that such a delinquency notice include the statement that failure to pay the
amount owed within thirty days would “result in the entry of an order by the Court of
Appeals prohibiting the attorney from practicing law in the State.” Maryland Rule 16-
811.6(b)(2) (2016) provided that “mailing by the trustees of the notice of delinquency
constitute[d] service of the notice on the attorney.” If an attorney failed to remedy the
delinquency and an order of temporary suspension was entered, a copy of the order was
required to be mailed to each attorney named in the suspension order at the attorney’s last
address as it appeared with the trustees. See Md. R. 16-811.6(d)(2) (2016). Mailing of a
copy of the order to the attorney constituted service of the order on the attorney. See id.In addition, once an order of temporary suspension was issued, in addition to notice of such
an order being distributed to various courts and offices, the Clerk of the Court of Appeals
was required to post the order to the Judiciary’s website. See Md. R. 16-811.8(a), (b)
(2016).
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client or, where representation has commenced, shall withdraw from the representation of
a client if[] the representation will result in violation of the [MARPC] or other law[.]”
MARPC 5.5(a) provides that “[a]n attorney shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction, or assist another in
doing so.” MARPC 5.5(b)(2) provides that “[a]n attorney who is not admitted to practice
in this jurisdiction shall not . . . hold out to the public or otherwise represent that the
attorney is admitted to practice law in this jurisdiction.” MARPC 8.4(b) provides that “[i]t
is professional misconduct for an attorney to . . . commit a criminal act that reflects
adversely on the attorney’s honesty, trustworthiness or fitness as an attorney in other
respects[.]”
Md. Code Ann., Bus. Occ. & Prof. (1989, 2018 Repl. Vol.) (“BOP”) § 10-601(a)
provides that, “[e]xcept as otherwise provided by law, a person may not practice, attempt
to practice, or offer to practice law in the State unless admitted to the Bar.” Generally, a
person who violates BOP § 10-601 “is guilty of a misdemeanor and on conviction is subject
to a fine not exceeding $5,000 or imprisonment not exceeding 1 year or both.” BOP § 10-
606(a)(3).
The hearing judge’s conclusions regarding McCarthy’s violation of the above
MARPC are supported by clear and convincing evidence. The record demonstrates that
McCarthy was suspended from the practice of law in Maryland on March 24, 2016 for
nonpayment of the Client Protection Fund’s annual assessment. On February 16, 2017,
nearly a year later, McCarthy was reinstated to the practice of law in Maryland. McCarthy
violated MARPC 1.16(a)(1) by continuing to provide legal advice to Radding and
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contacting a representative of a mortgage servicing company as Radding’s attorney while
he was suspended from the practice of law in Maryland for nonpayment of the annual
assessment to the Client Protection Fund. Likewise, McCarthy violated MARPC 5.5(a)
and 5.5(b)(2) by engaging in the unauthorized practice of law and holding himself out to
be Radding’s attorney when he represented and provided legal advice to Radding in the
foreclosure case and contacted a mortgage servicer on Radding’s behalf while he was
suspended from the practice of law in Maryland. Given that BOP § 10-601(a) prohibits
practicing law in Maryland without being admitted to the Bar of Maryland, it is evident
that by continuing to provide legal advice to Radding and taking action as his attorney, i.e.,
practicing law, after his suspension, McCarthy violated BOP § 10-601(a) (which is a
misdemeanor offense), and, as the hearing judge found, also violated MARPC 8.4(b).
MARPC 8.1(b) (Failing to Respond to Lawful Demand for Information)
“[A]n attorney . . . in connection with a disciplinary matter[] shall not . . . knowingly
fail to respond to a lawful demand for information from [a] disciplinary authority[.]”
MARPC 8.1(b). The hearing judge concluded that McCarthy violated MARPC 8.1(b) by
knowingly and intentionally failing to provide timely and complete responses to Bar
Counsel’s lawful demands for information. Clear and convincing evidence supports the
hearing judge’s conclusion. After Radding caused a complaint to be filed against
McCarthy, McCarthy failed to respond to requests for information that Bar Counsel made
in July 2018, September 2018, October 2018, and November 2018. Additionally, other
than confirming that he had received Bar Counsel’s letter, McCarthy failed to respond to a
request for information that Bar Counsel made in May 2019. Although McCarthy provided
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Bar Counsel with some information in the form of a partial response in January 2019 and
a chronology document that was not responsive to Bar Counsel’s requests in April 2019,
he never provided Bar Counsel with a complete response to Bar Counsel’s questions
concerning his representation of View Point and Radding.
MARPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
“It is professional misconduct for an attorney to . . . engage in conduct involving
dishonesty, fraud, deceit or misrepresentation.” MARPC 8.4(c). The hearing judge
concluded that McCarthy violated MARPC 8.4(c) by knowingly and intentionally
misrepresenting to Radding that he was “working on reinstating the case and modified
briefing schedule.” Clear and convincing evidence supports the hearing judge’s
conclusion. McCarthy’s statement to Radding was intentionally dishonest; he plainly
failed to draft a motion to reinstate the appeal. Indeed, as the hearing judge found,
“[d]espite his assurances to [] Radding, [McCarthy] failed to draft or file a motion to
reinstate the appeal or take any steps to protect View Point’s claim.”
A review of the record reveals that, after the text message of August 4, 2016, in
which McCarthy misrepresented that he was working on reinstating the appeal, Radding
repeatedly texted McCarthy over a period of six months, until February 2017, at various
times inquiring about the status of the appeal and whether the case had been reinstated. 14
For example, on August 22, 2016, at 10:59:45 a.m., Radding texted:
14
The request for admissions and exhibits, which were admitted into evidence at the
disciplinary hearing, included an exhibit containing a series of text messages between
Radding and McCarthy.
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Tom I’m asking you if you intend to file court papers to reinstate the lawsuit
at the Appellate Court including a brief motion or any other documents that
are required by the federal court to have the case reinstated and do you plan
on filing the next question is when do you plan on filing those are very simple
questions. Please advise me it’s very simple thank you[.]
Later on the same day, at 05:34:17 p.m., Radding texted:
Tom I ask[ed] my friend to borrow the money for the legal brief and he’s
asking me if it has been filed and I told him no it’s two months delayed and
my attorney has not given me a date yet. . . . Please advise me what you plan
to do with the $600 for the appeal and that it’s going to be put to use for what
it was given to you for and that is to follow [sic] the legal brief.
As late as February 4, 2017, Radding texted:
Tom could you call me back please. Just let me know what time and day is
good for you and you can call me anytime actually that would be fine thank
you I hope everything’s going well and you’re getting close to filing the
appeal. The last time we discussed the appeal you were working on it and
said you would communicate with me when you were close to filing. Can
you please tell me if we getting close to filing yet thank you.
On February 12, 2017, McCarthy texted Radding: “You did not give me any monies
for the appeal or any other purpose[.]” Radding and McCarthy thereafter exchanged
messages about whether Radding had forwarded money to McCarthy (with McCarthy
disputing this) and the status of the appeal. The final text message in the exhibit is dated
February 14, 2017, at 02:37:34 p.m. in which Radding texted McCarthy that he had
determined that a person he identified as the clerk for the Fourth Circuit said “that the case
cannot be reopened its been too long and the statute for filing is over.” Radding ended the
text message by asking McCarthy what he planned to do about the situation. The text
messages confirm the hearing judge’s conclusion that, despite advising Radding that he
was working on having the appeal reinstated, this was a knowing and intentional
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misrepresentation as McCarthy failed to draft or file a motion to reinstate the appeal or take
any measures to safeguard View Point’s claim even with Radding’s continual inquiries.
MARPC 8.4(d) (Conduct that is Prejudicial to Administration of Justice)
“It is professional misconduct for an attorney to . . . engage in conduct that is
prejudicial to the administration of justice[.]” MARPC 8.4(d). “Generally, a lawyer
violates M[A]RPC 8.4(d) where the lawyer’s conduct would negatively impact the
perception of the legal profession of a reasonable member of the public.” Slate, 457 Md.
at 645, 180 A.3d at 155 (cleaned up). The hearing judge concluded that McCarthy violated
MARPC 8.4(d) by failing to diligently protect Radding’s interests and attempting to
conceal his failures by initially ignoring Radding and then making a knowing and
intentional misrepresentation to Radding. Clear and convincing evidence supports the
hearing judge’s conclusion. Among other things, McCarthy’s failures of diligence and
communication, as well as his knowing and intentional misrepresentation to Radding,
would certainly negatively impact the perception of the legal profession of a reasonable
member of the public.
MARPC 8.4(a) (Violating the MARPC)
“It is professional misconduct for an attorney to[] violate . . . the” MARPC.
MARPC 8.4(a). Clear and convincing evidence supports the hearing judge’s conclusion
that McCarthy violated MARPC 8.4(a). As discussed above, McCarthy violated MARPC
1.3, 1.4(a), 1.4(b), 1.16(a)(1), 5.5(a), 5.5(b)(2), 8.1(b), 8.4(b), 8.4(c), and 8.4(d).
(C) Sanction
Bar Counsel recommends that we disbar McCarthy. At oral argument, after being
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asked his recommendation as to the appropriate sanction, McCarthy suggested that we
consider suspending him from the practice of law in Maryland with the right to apply for
reinstatement. McCarthy did not expressly characterize the proposed suspension as an
indefinite one or identify a period of time for such a suspension.
In Slate, 457 Md. at 646-47, 180 A.3d at 155-56, this Court stated:
This Court sanctions a lawyer not to punish the lawyer, but instead to protect
the public and the public’s confidence in the legal profession. This Court
accomplishes these goals by: (1) deterring other lawyers from engaging in
similar misconduct; and (2) suspending or disbarring a lawyer who is unfit
to continue to practice law.
In determining an appropriate sanction for a lawyer’s misconduct, this Court
considers: (1) the M[A]RPC that the lawyer violated; (2) the lawyer’s mental
state; (3) the injury that the lawyer’s misconduct caused or could have
caused; and (4) aggravating factors and/or mitigating factors.
Aggravating factors include: (1) prior attorney discipline; (2) a dishonest or
selfish motive; (3) a pattern of misconduct; (4) multiple violations of the
M[A]RPC; (5) bad faith obstruction of the attorney discipline proceeding by
intentionally failing to comply with rules or orders of the disciplinary agency;
(6) submission of false evidence, false statements, or other deceptive
practices during the attorney discipline proceeding; (7) a refusal to
acknowledge the misconduct’s wrongful nature; (8) the victim’s
vulnerability; (9) substantial experience in the practice of law; (10)
indifference to making restitution or rectifying the misconduct’s
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
Mitigating factors include: (1) the absence of prior attorney discipline; (2)
the absence of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith efforts to make restitution or to rectify the
misconduct’s consequences; (5) full and free disclosure to Bar Counsel or a
cooperative attitude toward the attorney discipline proceeding; (6)
inexperience in the practice of law; (7) character or reputation; (8) a physical
disability; (9) a mental disability or chemical dependency, including
alcoholism or drug abuse, where: (a) there is medical evidence that the
lawyer is affected by a chemical dependency or mental disability; (b) the
chemical dependency or mental disability caused the misconduct; (c) the
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lawyer’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful
rehabilitation; and (d) the recovery arrested the misconduct, and the
misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the M[A]RPC; and (14) unlikelihood
of repetition of the misconduct.
(Cleaned up).
Earlier this year, in Attorney Grievance Comm’n v. Davenport, 472 Md. 20, 36, 31-
34, 244 A.3d 1032, 1041, 1038-40 (2021), this Court disbarred an attorney who violated
MARPC 1.1, 1.2(a), 1.3, 1.4(a)(2), 1.4(a)(3), 1.4(b), 1.5(a), 1.15(a), 1.16(d), 8.1(b), and
8.4(d). The attorney abandoned his representation of a client in a divorce and custody case
and failed to provide any services of value, such as appearing at hearings, notifying the
client of court dates, and providing the client with information regarding the status of the
case. See id. at 35, 27, 244 A.3d at 1040-41, 1036. We pointed out that, if the attorney
“had a valid excuse for his inability to represent [his client], he did not communicate that
to anyone, including his client.” Id. at 35-36, 244 A.3d at 1041. The attorney also charged
an unreasonable fee, failed to deposit the unearned fee into an attorney trust account, failed
to refund the unearned fee, failed to notify the client and the trial court of the termination
of the representation, and knowingly and intentionally failed to respond to Bar Counsel’s
numerous lawful demands for information. See id. at 33-34, 244 A.3d at 1039-40.
The attorney did not appear at the disciplinary hearing or otherwise participate in
the disciplinary process and as such failed to offer evidence of any mitigating factors. See
id. at 25, 35, 244 A.3d at 1035, 1040. The attorney’s misconduct was aggravated by
multiple violations of the MARPC, bad faith obstruction of the attorney discipline
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proceeding, substantial experience in the practice of law, and indifference to making
restitution. See id. at 35, 244 A.3d at 1040. In imposing the sanction of disbarment, we
observed that we had previously disbarred attorneys who abandoned the representation of
clients and failed to respond to Bar Counsel’s demands for information. See id. at 36, 244
A.3d at 1041.
Bar Counsel draws our attention to the case of Attorney Grievance Comm’n v.
Miller, 467 Md. 176, 183, 238, 221, 223 A.3d 976, 1012, 980, 1002 (2020), in which this
Court disbarred an attorney who violated MARPC 1.3, 1.4(a), 1.4(b), 1.5(a), 8.1(a), 8.1(b),
8.4(c), and 8.4(d). In Miller, a client retained the attorney to represent her in an adoption
proceeding, and the attorney drafted, but never filed, a petition for adoption. See id. at
184-85, 191, 223 A.3d at 981, 985. The attorney failed to inform the client as much, failed
to keep the client informed regarding any outstanding balances, charged an unreasonable
fee, and failed to comply with all of Bar Counsel’s lawful demands for documentation. See
id. at 191-92, 223 A.3d at 985. Additionally, the attorney made misrepresentations, and
provided falsified documents, to the client and Bar Counsel. See id. at 192, 223 A.3d at
985.
The attorney’s misconduct was aggravated by a dishonest or selfish motive, multiple
violations of the MARPC, submission of false statements during the attorney discipline
proceeding, and substantial experience in the practice of law. See id. at 234, 223 A.3d at
1009-10. The attorney’s misconduct was mitigated by the absence of prior attorney
discipline and good character and reputation. See id. at 225, 223 A.3d at 1004. This Court
observed that “disbarment is generally the appropriate sanction for intentionally dishonest
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conduct, unless an attorney can establish the existence of ‘compelling extenuating
circumstances justifying a lesser sanction.’” Id. at 228, 223 A.3d at 1006 (quoting Attorney
Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413, 773 A.2d 463, 485 (2001)). This
Court determined that, “given the multitude of violations of the MARPC[ the attorney]
engaged in and the overarching dishonesty undergirding a substantial number of these
violations, disbarment [was] the only appropriate sanction.” Miller, 467 Md. at 238, 223
A.3d at 1012.
Here, McCarthy violated numerous MARPC in his representation of View Point and
Radding. McCarthy missed filing deadlines, failed to disclose that he missed the filing
deadlines, failed to adequately communicate with his client, engaged in the unauthorized
practice of law, and failed to timely respond to lawful demands from Bar Counsel. And,
significantly, McCarthy violated MARPC 8.4(c) by knowingly and intentionally
misrepresenting to Radding that he was working on having View Point’s appeal reinstated.
McCarthy’s misconduct caused harm. Because of McCarthy’s failure to meet filing
deadlines, the Fourth Circuit dismissed View Point’s appeal. The dismissal effectively
eliminated any chance of reviving View Point’s claim for breach of contract, as to which
the United States District Court for the District of Maryland had granted summary
judgment in the defendant’s favor.
The hearing judge found, and we agree, that McCarthy’s misconduct is aggravated
by seven factors. First, McCarthy had a dishonest or selfish motive, given that he attempted
to conceal his failure to make any effort to have the appeal reinstated by knowingly and
intentionally misrepresenting to Radding that he was working on reinstating the appeal.
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Second and third, McCarthy engaged in a pattern of misconduct and multiple violations of
the MARPC, including misconduct while representing View Point and Radding and during
Bar Counsel’s investigation. Fourth, McCarthy engaged in bad faith obstruction of the
attorney discipline proceeding, as shown by his knowing and intentional failure to comply
with Bar Counsel’s many requests for information during the investigation of Radding’s
complaint. Fifth, McCarthy refused to acknowledge the wrongful nature of his misconduct
and instead attempted to blame Radding for his own failures. Sixth, Radding, who had
incurred a brain injury affecting his memory and ability to communicate verbally, which
was known to McCarthy, was a vulnerable victim. Seventh, McCarthy had substantial
experience in the practice of law, given that he had been a member of the Bar of Maryland
for approximately twenty-seven years at the time his misconduct began.
The hearing judge determined that McCarthy’s misconduct is mitigated by only two
factors: lack of prior attorney discipline and good character and reputation.15 The hearing
judge found that McCarthy failed to prove that his misconduct was mitigated by personal
or emotional problems or that he was unlikely to repeat his misconduct, and McCarthy has
not excepted to the hearing judge’s determination.
We conclude that the appropriate sanction for McCarthy’s misconduct is
15
Despite having objected to McCarthy testifying to his own character and
reputation at the disciplinary hearing, in this Court, Bar Counsel does not except to the
hearing judge’s finding of the mitigating factor of good character and reputation. In the
absence of an exception from Bar Counsel, we will not disturb the hearing judge’s finding.
In considering the appropriate sanction, however, we give this mitigating factor little
weight as it was established entirely by McCarthy’s own testimony. We agree that the
mitigating factor of lack of prior discipline is applicable.
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disbarment. With the self-serving purpose of concealing his failure to make any effort to
have View Point’s appeal reinstated after it was dismissed because he failed to file an
opening brief, an appendix, or a motion to extend time, McCarthy knowingly and
intentionally misrepresented to Radding that he was working on reinstating the appeal.
McCarthy engaged in intentional dishonesty absent compelling extenuating circumstances
that are generally necessary to preclude disbarment, see Miller, 467 Md. at 228, 223 A.3d
at 1006, and, indeed, absent any significant mitigating factors. Making matters even worse,
in addition to engaging in intentional dishonesty, McCarthy failed to meet filing deadlines
which resulted in his client’s case being dismissed. McCarthy also failed to adequately
communicate with Radding, engaged in the unauthorized practice of law, and knowingly
and intentionally failed to provide timely and complete responses to Bar Counsel’s
numerous requests for information and documentation. McCarthy’s misconduct is
aggravated by a dishonest or selfish motive, bad faith obstruction of the attorney discipline
proceeding, and other factors. Together, all of these circumstances make clear that
disbarment is the appropriate sanction.
The disbarment of the attorney in Davenport, 472 Md. 20, 244 A.3d 1032, confirms
our conclusion that disbarment is likewise warranted in this case. In Davenport, we
disbarred an attorney who abandoned his representation of a client and failed to respond at
all to Bar Counsel’s demands for information, and we observed that we had previously
disbarred attorneys for such misconduct. See id. at 35-36, 244 A.3d at 1040-41. Similarly,
McCarthy engaged in disbarment-worthy ethical failures. Both McCarthy and the attorney
in Davenport abandoned representation of clients and failed to communicate to anyone,
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including the clients, any valid excuse for doing so. See id. at 35-36, 244 A.3d at 1040-41.
Both McCarthy and the attorney in Davenport failed to do what they had been retained to
do—in one instance, prosecute an appeal and, in the other, provide representation in a
divorce and custody case, respectively. See id. at 27, 244 A.3d at 1036. And, the attorney
in Davenport knowingly and intentionally failed to respond to Bar Counsel’s request for
information while McCarthy knowingly and intentionally failed to provide timely and
complete responses to Bar Counsel. See id. at 25-26, 244 A.3d at 1035.
Indeed, the circumstances of this attorney discipline proceeding warrant disbarment
even more than those of Davenport. The attorney in Davenport was not determined to have
violated MARPC 8.4(c). See id. at 30 n.3, 244 A.3d at 1038 n.3. By contrast, McCarthy
violated MARPC 8.4(c) by knowingly and intentionally misrepresenting to Radding that
he was working on reinstating the appeal. In other words, McCarthy did more than fail to
provide a valid explanation for mishandling the appeal, he engaged in intentional
dishonesty to cover his tracks. Like Miller, this attorney discipline proceeding implicates
the principle that “disbarment is generally the appropriate sanction for intentionally
dishonest conduct[.]” Id. at 228, 223 A.3d at 1006 (citation omitted). McCarthy’s violation
of MARPC 8.4(c) along with all of the other MARPC violations and the presence of such
numerous aggravating factors demonstrate that disbarment is warranted.
For all of the reasons herein, we disbar McCarthy.
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
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RULE 19-709(d), FOR WHICH SUM JUDGMENT
IS ENTERED IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
THOMAS MCCARTHY, JR.
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