Civil Law Update December

Review of the December 2014 Amicus Curiarum reveals the following decisions of interest in the civil law area:

COURT OF APPEALS:

Attorney Grievance Commission of Maryland v. Gayton Joseph Thomas, Jr., Misc. Docket AG No. 63, September Term 2013, filed November 20, 2014. Opinion by Harrell, Glenn T., Jr., Judge

The Attorney Grievance Commission (“AGC”), through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“PDRA”) against Mr. Thomas, alleging violations ofthe Maryland Lawyers Rules of Professional Conduct (“MLRPC”) arising out of his representation of Mohamed Abou Sarieh Hamed (“Hamed”). Mr. Thomas was charged with violating MLRPC 1.1 (Competence), 1.3 (Diligence), 1.4 (Communication), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(c) and (d) (Misconduct). Mr. Thomas failed to respond to any Bar Counsel inquiries nor file a response to the PDRA. An order of default was entered and a hearing was held with only Mr. Hamed as a witness. After taking testimony, the trial judge found some of Mr. Hamed’s testimony unclear and other testimony not credible, and the hearing judge found that the remaining credible evidence adduced by the Commission proved, by clear and convincing evidence, only a violation of MLRPC 8.1(b). The AGC appealed.

The Court of Appeals found that Respondent violated all of the MLRPC with which he was charged. Relying on Attorney Grievance Commission v. Lee, 390 Md. 517, 890 A.2d 273 (2006), Franklin Credit Management Corporation v. Nefflen, 436 Md. 300, 81 A.3d 441 (2013), and Attorney Grievance Commission v. Harmon, 433 Md. 612, 72 A.3d 555 (2013), the Court held that the well-pleaded averments in the PDRA should have been accepted as admitted as they were never denied by Respondent, and an Order of Default was entered in the case and not vacated. The Court did not consider the hearing judge’s findings of fact and conclusions of law (or Bar Counsel’s exceptions to them) because there was no apparent need for a full-blown evidentiary hearing in the case. Based on the deemed admissions resulting from Mr. Thomas’ failure to respond to the allegations in the PDRA, the Court concluded that the admitted facts were sufficient, to a clear and convincing standard, to warrant concluding that Respondent violated each and every MLRPC that was cited in the PDRA. The Court found that Mr. Thomas’ misconduct and subsequent failure to participate in the disciplinary proceedings warrants the sanction of disbarment.

Nicholas del Pizzo

COURT OF SPECIAL APPEALS:

Troy T. Bryant v. Roxanna K. Bryant, No. 2096, September Term 2013, filed October 30, 2014. Opinion by Nazarian, Douglas R. M., Judge

Husband and Wife divorced after a tumultuous marriage. The trial court found that certain payments to Husband from his employer that Husband attempted to have categorized as “loans” were in fact income to Husband and therefore marital property. Based on those findings, the trial court found that the incomes of the parties were unconscionably disparate and ordered indefinite alimony to Wife.

The Court of Special Appeals affirmed, holding that the trial court did not err when it found that payments made to Husband by his employer constituted “income,” and therefore marital property, for purposes of calculating indefinite alimony. the Court pointed out that the parties arranged this structure of the “loans” from Husband’s employer which were forgiven over time only for tax purposes, and as a practical matter Husband and Wife used the funds to live on during their marriage. The Court affirmed the finding of unconscionable disparity and award of indefinite alimony to Wife as well finding that the trial court properly credited Wife’s assertion that she could only be partially self-supporting, and it was within the bounds of its discretion when it declined to credit Husband’s claim that he lacked the ability to pay alimony. Moreover, Husband could not demonstrate that the trial court had awarded indefinite alimony only as a punitive measure: the court found that Husband was responsible for the deterioration of the marriage, which factors into the unconscionable disparity analysis.