On Report and Recommendation of the Board on Professional Responsibility. (BDN 150-98).
The opinion of the court was delivered by: King, Senior Judge
The Board on Professional Responsibility ("Board") determined that respondent, Billy L.Ponds, violated Maryland Rules of Professional Conduct*fn1 1.7 (b)*fn2 and 1.16 (a)(1).*fn3 It recommends a sixty-day suspension and "in view of the very lengthy [five-year] delay in the disposition of this case" that execution of the sixty-day suspension be stayed with a six-month period of unsupervised probation, with the requirement that Ponds complete a continuing legal education course on ethics or criminal practice covering conflicts of interest.*fn4
Respondent maintains that his conduct did not violate Maryland Rules of Professional Conduct 1.7 (b) or 1.16 (a)(1). Bar Counsel takes the opposite view and requests that we adopt the Board's findings of fact and conclusions of law with respect to the violations. Bar Counsel, however, takes issue with the recommended sanction and asks that we reject the Board's recommended stay of the suspension and instead order a sixty-day suspension to commence thirty days after the entry of our order. The Board, which has filed its own brief addressing only the sanction issue, asks that we impose the recommended sanction. Respondent did not address the issue relating to the sanction in his briefs nor did he request, in his filings before the Board, that any sanction imposed be mitigated because of the delay.
We accept the Board's findings of fact and conclude that respondent did indeed violate Maryland Rules of Professional Conduct 1.7 (b) and 1.16 (a)(1). We reject, however, the Board's sanction recommendation, as well as its decision to mitigate it due to the delay in the disposition of this case. Accordingly, we conclude that respondent shall be suspended from the practice of law for a period of thirty days and shall complete appropriate CLE in light of this opinion.
Respondent, who has been a member of the bar for approximately twenty years, was retained on February 8, 1997 to represent Gifford Thompson. Thompson had been charged, in the United States District Court in Maryland, with conspiracy to import cocaine and conspiracy to distribute and possess with the intent to distribute between 15 and 50 kilograms of cocaine.*fn5
On July 10, 1997, Thompson sought to enter a guilty plea to the charge of conspiracy to import cocaine. The judge conducted a thorough Rule 11 (b) inquiry and accepted Thompson's guilty plea. On approximately July 21, 1997, Thompson sent respondent a letter accusing respondent of coercing him into pleading guilty, but also requesting respondent's assistance with withdrawing the guilty plea.*fn6 On approximately August 13, 1997, the District Court received a letter from Thompson, with a copy of the letter he had sent to respondent attached, requesting a hearing on his request to withdraw the guilty plea.
The court forwarded Thompson's letter to government counsel and to respondent and asked respondent for his response. Respondent replied, in a letter dated September 10, 1997, "in light of the fact that I still represent Mr. Thompson, I believe that it would be inappropriate to respond at this time [to the allegations]." Although he did not meet with Thompson between the date he received Thompson's letter requesting withdrawal of the guilty plea and the September 26, 1997 sentencing date, respondent continued preparing for the client's sentencing hearing.*fn7
At the beginning of the sentencing hearing, the following exchange took place between the court and respondent:
COURT: Mr. Ponds, are you arguing . . . [the motion to withdraw the plea] yourself on his behalf or how are you going to proceed with that?
MR. PONDS: No, Your Honor. I think it would be inappropriate for me to argue the motion since there's things in his motion that . . . .
COURT: All right. Well, Mr. Thompson, I will let you further address me.
The court then asked Thompson why it should allow him to withdraw his plea. Thompson replied that respondent had told him about the plea offer only fifteen or twenty minutes before he pled guilty and that respondent had advised him that if he did not take that offer, he was going "to get life" imprisonment. He then stated that respondent had intimidated him and lied to him and that he did not trust respondent. After hearing from Thompson, the court denied Thompson's request to withdraw his guilty plea, observing:
But I don't think, Mr. Thompson, that you have established your burden to withdraw your guilty plea. I can't withdraw a guilty plea when I went through a half hour questioning with you and you satisfied me on the record that you made a knowing and voluntary plea, and there is absolutely no way under the law that I can withdraw your guilty plea. I can't do it and won't do it. And I am going to deny your pro se motion that you have filed.
The court then proceeded with the sentencing hearing.
At the sentencing portion of the hearing, respondent made representations on behalf of Thompson, and Thompson also spoke on his own behalf.*fn8 In his allocution, Thompson refused to accept responsibility for his crime, effectively ensuring that his offense would be considered at level 38. The court then found Thompson's offense level to be 38 and sentenced him, at the lowest end of the guideline range, to 292 months.
At the conclusion of the hearing, the court advised that Thompson had 10 days to note his appeal, but no notice of appeal was filed within that time frame.*fn9 On November 4, 1997, Thompson wrote a letter to the United States Court of Appeals for the Fourth Circuit advising them that he wanted to appeal his case but that he did not have ...