CHARLESTON – Despite losing it in two other states, a Maryland attorney is fighting to keep her license to practice law in West Virginia.
Candace K. Calhoun, an attorney in Frostburg, Md., is alleging the Maryland courts did not properly consider evidence in the complaint filed against her by that state's Attorney Grievance Commission. In 2006, the Maryland Court of Appeals upheld a lower court ruling that Calhoun's license to practice law should be suspended indefinitely because she misrepresented to a client the amount of money he owed for a retainer.
After learning of the appellate court's decision, both the Bar Associations in West Virginia and Pennsylvania, where Calhoun is also licensed to practice, filed reciprocal disciplinary actions. According to court records, Pennsylvania likewise indefinitely suspended Calhoun's license on Sep. 7, 2006.
However, alleging she was denied due process in her Maryland suspension because of, among other things, the failure of the Court to render a decision on material facts in the case, Calhoun is hoping the West Virginia high court will let her off with a reprimand when it considers her case Wednesday, Oct. 24.
Dispute over statements
According to court records, a statement of charges was brought against Calhoun, a 1993 graduate of the West Virginia University College of Law, by the Commission arising from a complaint filed by Paul Schell. In 1999, Schell retained Calhoun to pursue a sexual harassment suit against his former employer.
Schell, records show, initially paid Calhoun a retainer of $5,000. As part of their retainer agreement, Calhoun was to provide Schell monthly statements.
After filing Schell's sexual harassment claim with the U.S. Equal Employment Opportunity Commission in April 2000, Calhoun received a right to sue letter on his behalf and filed a subsequent suit in U.S. District Court in August 2000.
According to court records, Schell paid Calhoun an additional $5,000 in June 2001. Later that year in November, Calhoun recommended that Schell settle his case for $8,000.
In its brief to the Supreme Court dated Aug. 8, the Lawyer Disciplinary Board, the prosecutorial arm of the state Bar Association, said that "[a]lthough Mr. Schell agreed to accept the offer, the Maryland Court found he did not do so with full knowledge of how Respondent [Calhoun] was going to apply the $8,000."
"Further," wrote Lawrence Lewis, the Board's chief disciplinary counsel, "the Maryland Court found that Mr. Schell was unaware when he accepted the $8,000 settlement that he was going to owe Respondent any additional monies other than the costs of litigation that may have been expended."
According to court records, Calhoun settled the case on Schell's behalf and received the $8,000 in February 2002. Instead of placing the $8,000 into an escrow account reserved for clients, Calhoun deposited the money into a separate account.
It was not until over a year later, records show, that Calhoun informed Schell that the $8,000 had been deposited, and applied to the outstanding balance he owed her. Along with the final statement, Calhoun sent Schell a bill for $9,500.
In addition to the failure to place the settlement money in separate escrow account, court records show, the Commission charged Calhoun with violations of Maryland's Rules of Professional Conduct dealing with keeping a client reasonably informed of a case's status, and charging of excessive fees. In 2005, Washington Circuit Court Judge Frederick C. Wright III sided with the Commission.
On March 9, 2006, the Maryland Court of Appeals indefinitely suspended Calhoun's license. Because there was no finding she deliberately engaged in dishonest or fraudulent conduct, the appeals court opted for a suspension rather than disbarment.
Attempting to 'relitigate'
The absence of a "material finding of fact" by the Circuit Court as to weather Schell received the statements as per the retainer agreement, is one reason why the West Virginia Supreme Court should preclude her from losing her West Virginia license.
Citing both applicable West Virginia Rules of Civil Procedure and case law in her brief to the Court, Calhoun says that the failure of Judge Wright to make such findings of fact violates her rights of due process in the West Virginia disciplinary proceeding.
"In the case at hand," Calhoun wrote, "the fact-finder, the circuit court, failed to make a sufficient finding of fact, and review the evidence thereof, of a material disputed fact as to whether Schell received monthly fee statements throughout the litigation."
"By failing to make an adequate finding regarding the fee statements, the lower court effectively ignored the heart of the Respondent's defense," Calhoun added.
Due to these and other factors, such as differences in Maryland and West Virginia law as to what constitutes misrepresentation, Calhoun argues that the Court, pursuant to Rule 3.20 of the West Virginia Rules of Professional Conduct, should impose a different sanction on her for her conduct. In her brief, Calhoun suggested a reprimand as an appropriate sanction.
In its reply brief, Lewis found none of Calhoun's arguments persuasive. They are, he said, nothing more than "an attempt to relitigate the factual issues of the case by the Maryland proceedings."
In rebuttal to Calhoun's claim that Judge Wright did not make any finding of fact concerning Calhoun providing Schell with the disputed statements, Lewis quoted from the trial court's transcript. Though Wright did state he was "not making any finding of fact as to whether these statements were or were not sent, Lewis points out Wright later stated Schell had an "expectation," and Calhoun a duty to provide the statements.
"The control is in the hands of the attorney," reads the transcript as cited in the reply brief. "And there is an expectation, I believe, that in this situation any monthly statements would have been detailed indicating fees earned, costs paid in futherance of litigation as charges and then a statement as to monies paid by client, received by counsel to be applied to fees earned."
"That was not done," Wright continues. "So there's a failure of Ms. Calhoun to provide the monthly detailed statements."
Given these and other facts, Lewis concludes in his reply brief that "the proof is not so infirm that this Court cannot, consistent with its duty, accept as final the determination of the Maryland jurisdiction."
West Virginia Supreme Court of Appeals Case No. 33067