*1 is, view, cast aside anew, before we my required result I would Accordingly, requirement. the exhaustion quickly so Special Appeals of the Court judgment reverse the with directions to vacate case that Court remand the and assess City Circuit Baltimore judgment of the Court against Lovelace. costs all courts
109A.3d 114 MARYLAND, OF ATTORNEY GRIEVANCE COMMISSION v. Gregory Scott ADAMS. Term, Sept. No. 2012. Docket AG Misc. Appeals Maryland. Court of
Feb. 2015. *4 (Glenn Grossman, M. Lawless, Bar Counsel E. Asst. Lydia Maryland), Counsel, Commission Attorney Bar Grievance for petitioner. (Kramon Graham, P.A.), Graham, Balti- & Esq.
Andrew J. more, MD, respondent. HARRELL, BARBERA, C.J.,
Argued before ADKINS, BATTAGLIA, GREENE, McDONALD and WATTS, JJ.
BARBERA, C.J. Petitioner, Grievance December
On Counsel, Bar filed acting through Maryland, Commission or Remedial Action Disciplinary a Petition for with this Court The (“Petition”) attorney Adams. Respondent, Scott against under discipline matter brought reciprocal was as Petition 16-773(b) 16-751(a)(2). filing The Rules Maryland matters disciplinary two precipitated Petition was Bar, through its Grievance of the Maine Board of Overseers Commission, disciplin- Both against Respondent. brought had from stemming to a course of events matters related ary first estate. The of a decedent’s representation the second result- warning Respondent; in a action resulted reprimand. ed in a *5 misconduct Maine alleges
The Petition Lawyers’ Rules of Maryland constitutes violations of several (MLRPC): (Competence),1 1.1 1.2 Professional Conduct Between Representation Authority and Allocation of (Scope (Communication),4 (Diligence),3 1.3 1.4 Lawyer),2 Client and and Rule (Declining Terminating Representation),5 1.16 lawyer provide competent representation MLRPC 1.1 “A shall 1. states: representation requires legal knowledge, Competent the to a client. skill, thoroughness preparation reasonably necessary repre- and for the sentation.” part: 1.2 states relevant 2. (a) (c) (d), Subject paragraphs lawyer by a a and shall abide and, concerning objectives representation client’s the of the decisions appropriate, by when shall consult with the client as to the means they pursued. lawyer may which be A are to take such action on impliedly carry behalf of the client as out the is authorized representation. lawyer by A abide a client’s decision whether to shall case, lawyer settle a matter. In a criminal shall abide the decision, lawyer, plea client’s entered, after consultation with the as to a to be jury whether to waive trial and whether the client will testify. lawyer diligence 3. MLRPC 1.3 states: "A act shall with reasonable and promptness representing a client.” 4. MLRPC 1.4 states: (a) lawyer A shall: (1) promptly any inform the client of decision or circumstance with consent, respect to which the client’s informed as defined in Rule 1.0(f), Rules; required by is these (2) keep reasonably the client informed about the status of the matter; (3) information; promptly comply requests with reasonable (4) any consult with the client about relevant limitation on the lawyer’s lawyer expects conduct when the that the client knows permitted by Maryland Lawyers’ assistance not Rules of Profes- sional Conduct or other law. (b) lawyer explain reasonably necessary A shall a matter to the extent permit regarding repre- the client to make informed decisions sentation. part: 5. MLRPC 1.16 states in relevant (a) (c), Except paragraph lawyer represent as stated a shall not a or, commenced, representation client where has shall withdraw from representation of a client if: (1) representation Maryland will result in violation of the Law- law; yers’ Rules of Professional Conduct or other (d) (Misconduct)6. 8.4(a), (c), On December we directing Respon- cause order Bar Counsel and issued show to why corresponding discipline dent to show cause as should receipt parties’ not this After imposed be Court. order,7 cause this Court transmitted the responses to show *6 of for judge matter to a the Circuit Court Anne Arundel evidentiary to hold an and County (“hearing judge”) hearing issue of fact and recommended conclusions of law.8 findings 2013, 9, hearing judge hearing September
Our held the on of fact and findings and thereafter issued written conclusions of law. Both and Bar Counsel have filed Respondent excep- we overrule explain, tions. For reasons we shall certain the others, exceptions, sustain conclude violated 1.1, 1.3, 8.4(a), and, and as a sanction for that misconduct, reprimand. issue a (2) materially lawyer’s physical impairs mental condition the the
lawyer's ability represent the client!.] part: 6. relevant MLRPC 8.4 states in lawyer professional It is (a) misconduct for a to: attempt Maryland Lawyers’ violate or to violate the Rules of Conduct, so, knowingly assist or induce to do Professional another another; through or do so the acts of * * * fraud, (c) engage involving dishonesty, misrepre- in conduct deceit or sentation; (d) engage prejudicial in conduct that is to the administration of justice!.] 19, 2013, February stating Respondent responded 7. a letter dated public reprimand. that he would consent to a generally assign reciprocal disciplinary petitions 8. We do not to a case, hearing judge, usually the facts of the as determined because originating jurisdiction, the deemed factual are to have established the case, predicate present for the misconduct found. In the we made the assignment hearing judge perception our that a to our because of finding analysis panel "disposition” critical to the of the Maine Commission, disciplinary proceeding the Grievance second against Respondent, equivocal perhaps sup- was somewhat and not ported by parties’ at the we the the record as it existed time considered 16-773(e)(2). responses to our show cause order. See MLRPC
I. hearing, Bar Counsel September At outset of the the violated MLRPC allegations the withdrew 1.16(a), allegations 1.2(a), 1.4, leaving standing only and (d). 8.4(a), (c), 1.1, 1.3, and Save relating to MLRPC pre- evidence was parties’ testimony Respondent, fact and through agreed-upon stipulations entirely sented the two reports exhibits as well as accompanying Attorney Grievance Com- of the Maine disciplinary “panels” mission, D Panel and Panel E. hearing judge our submitted written
On October judge conclusions of law. Our findings of fact and reports incorporated findings the factual expressly D E Grievance Commission. Follow- Panels of the Maine findings of fact. summary hearing judge’s is a of our ing Accountant since Respondent has been Certified Public to the Bar attorney an since 1981. He was admitted 1974 and Virginia Bar of the District of Columbia *7 1990, in 1994. Bar of in and the Bar Maine Maryland States He also is a member of the Bar United Court and the States Tax Court. Appeals for the D.C. Circuit United maintains a law office Maine. He has Respondent currently Maryland on inactive status in since 2001. been 2003, retained Mrs. Helen In was April Respondent matters, financial handling Brownell to assist her her estate filing income tax returns and including personal plan, Mrs. Brownell’s estate Respondent reviewed planning. trust. family and Testament and a which included Last Will Will, a revised which was suggested changes He and drafted died, unexpectedly, Brownell executed October 2004. Mrs. 12, 2005, trust were before the revisions her on June children, whom, was survived three one completed. She (Katherine), personal rep- was named as Katherine Brownell resentative of the Estate. to assist in the probate
Katherine retained September tax returns. In prepare the Estate and the estate 2005, the Estate’s initial Maine tax return. Respondent filed
Respondent had reason good to believe at the that time total value of the Estate was below the million threshold $2 necessitating filing of a federal estate tax return. He therefore did not file one. later,
About ten months in July learned property additional attached to the Estate caused its total value to exceed million. Respondent nevertheless did not $2
undertake at any action time to file a timely federal return, tax estate nor did he seek an extension of time within which to file the return or recommend to the Estate that it pay the tax due.
It was not January until 2008 that Respondent filed the tax federal return on behalf of the Estate and paid the accompanying however, tax owed. delay filing, The caused the Estate to incur penalties substantial and interest. By May $134,000 the Estate had paid in penalties and Nonetheless, interest. significant penalties interest and still owed, was prompting Respondent to request a recalculation of penalties interest. Respondent resigned as the Estate’s May counsel on day, 2008. The following reported to the Maine Board of (“the Board”) Overseers of the Bar that he had violated Rule 3.6(a)(3) of the Maine Code of Professional Responsibility by failing timely to file the federal estate tax return.9
Panel D of Maine’s Grievance Commission convened a pub- hearing, lic at which Respondent, who did not carry profes- insurance, sional liability committed to reimburse the Estate for the costs incurred as the result of delayed action. D Panel issued its report May on finding Respon- dent’s
initial ... failure to file a federal estate tax return was not *8 misconduct, but rather was the result of a professional during 9. At all disciplinary proceedings relevant times which the in proceeding, attorney disciplinary Maine were Maine’s scheme con- mandatory component judicial tained no review of the actions of the Hence, panels. Maine Grievance Commission or its Maine’s scheme at Maryland’s prior the time was much like to 1975. judgment, on made the facts and circumstances known to time, him at the turned out to be incorrect. His misconduct, therefore, consisted of failing timely take it.[10] action to problem address the once he became aware of D Panel further found: injury “While the to the client due to potential IRS penalties and interest appears significant, it is apparent that [Respondent],” upon recognizing the error in January 2008, “committed reimburse the estate losses incurred neglectf,]” and, due to his “by early May [Respondent], prior to the initiation of this action remit- [had] $50,000 ted that, to the estate.” Noting “in view expressed remorse by [Respondent] and the isolated nature of misconduct, the Panel finds little or no likelihood of a repetition misconduct[,]” Panel D dismissed the com- plaint with “a warning to [Respondent] to avoid any such in delays addressing consequences in his actions future.”11 in
Sometime or about April Katherine resigned as personal representative of the Estate. A court Maine appointed Martin L. Eisenstein to serve as a personal neutral representative. Eisenstein, On June Mr. on behalf of Estate, sued the Superior Court of Lincoln County, Maine.12 The alleged lawsuit breach of fiduciary duty in connection with Respondent’s tax return error and sought punitive damages and attorney’s later, fees. days Two Mr. Eisenstein filed a motion for prejudgment attachment of Re- spondent’s real personal property $309,172.10. toup Mr. judge present Our disciplinary in the accepted 10. matter as finding conclusive the Attorney of Panel D of the Grievance Commis- sion Maine engage any did not misconduct connection with his initial decision required that the Estate was not file a federal estate tax return. system, warning 11. In Maine’s attorney "discipline.” is not a form of 7.1(d)(4)(b). Board of Overseers of the Maine Bar Rule E Panel of Maine’s Grievance Commission found that the 12. lawsuit and motion Superior for attachment were filed in the Court on shortly after thirty days June less than after the Panel D report was issued. *9 600 “an initial the claim that the motion with supported
Eisenstein $244,767.00” in total federal “approximately analysis” revealed anticipated as well as and owed penalties state interest and $100,000, $75,000 evidently connection costs of legal returns.13 of corrected tax filing far exceed- Mr. Eisenstein’s estimates believed Respondent damages Respon- actual any reasonable assessment ed retained Respondent the Estate.14 actions had caused dent’s action and resist attach- Hull to defend the Attorney Jonathan apparent In an effort property. ment of not be attached need why Respondent’s property demonstrate amount, a sought Respondent Mr. Hull from requested at the July Respondent holdings. his real estate On list of for that informa- request to Mr. Hull’s response emailed entirety: in its The email states tion. I in the and have interests
Jon, my wife requested, as following properties: Maine Road, Boothbay East 211 Point
1. Ocean $395,000 Approximate FMV: Respondent advises us that 13. Maryland allowing prejudg- permissive than more Maine is far court, 4A(c), a after notice Under Me. R. Civ. P. ment attachment. upon finding prejudgment a hearing, may attachment and a authorize plaintiff judg- likely will recover than not that "that it is more costs, ment, equal greater to or including in an amount interest insurance, liability any aggregate attachment and sum of the than bond, by security, any property or credits attached other or other process by the defendant to be trustee shown writ of attachment or Moreover, law, Maine a satisfy judgment.” under available to (and judgment) a can reach the defendant's prejudgment attachment joint tenant or as a property that he or she owns as interest tenant the entireties. that, Maine, personal proper- both real and *10 $325,000
Approximate FMV: $313,000 Current Mortgages: Lane, 4. 7 Boothbay family Anchor East [the residence] $1,600,000 Approximate FMV: $1,300,000 Current Mortgages: $411,000 Total Minimum Equity however, not, I trust if you require, this is what please give call. me a
The first properties Respondent three listed are commercial which, properties, the title to several days after he became attached, aware of the Estate’s efforts to his have assets WEOALOT, Respondent transferred to Respondent LLC. had WEOALOT, wife, 5, established himby held and his on June testified, Respondent contradiction, 2009. without the creation of in WEOALOT was furtherance of his banker’s recommendation, at the Respondent time refinanced the three 2009, commercial properties in April that the three commer- cial properties be single entity. transferred to a Respondent established WEOALOT before he learned that the Estate filing and, would be suit him against 18, 2009, on June completed the conveyance title to the properties commercial to WEOALOT. Our in hearing judge present disciplinary proceeding expressly found that Respondent’s creation of was not WEOALOT conveyance fraudulent by Respon- done in dent an effort to have the properties shielded from prejudg- ment attachment. Hull,
Mr. with a copy Respondent, forwarded this infor- Nuzzi, mation in a letter to Mr. counsel for Mr. Eisenstein his role as personal representative of the Estate. Respondent was never asked either Mr. Hull or Mr. Nuzzi who or what entity had title to the three commercial properties; neither WEOALOT; Respondent transfer to questioned
man Hull, counsel, opposing to Mr. supply did not information the Maine Court. Mr. Eisenstein later learned he had a title conveyance properties commercial when estate had listed in performed Respondent on the real search his email. moved to resist attach- January Respondent
On Likely Respondent’s real properties. referring ment of the $411,000, $300,000 was in of which equity totaling estate residence, argued that there was suffi- personal likely to cover the amount of equity properties cient those noted, Hull Respondent’s As email to Mr. any judgment. not specify latter’s letter to Mr. Nuzzi did Yet, it and his wife held or had interests WEOALOT. was that, Estate could—and did— readily undisputed title online research of identify through the owners of record records, land the addresses that email using provided. Hull’s letter' to Mr. Nuzzi had subsequent and Mr. Eisenstein, through his February acting On Mr. *11 join an to as a attorney, party made oral motion WEOALOT in the amount in interest and a writ attachment approve $200,838.10, any property by to include owned WEOALOT. agreed the attachment should include
WEOALOT, LLC, court an order to that and the entered February 3, effect on 2010. Respon-
A settlement was reached between the Estate 2, 2010, memorializing on June and the document dent parties was both on June 2010. agreement signed $50,000 $155,000, agreed to a total of less pay initially paid Respondent timely the Estate. reimbursed Estate, in full.15 In the Board of Overseers of the Maine September 2010 Respondent, disciplinary petition against Bar filed a second Panel E Maine led to the before Griev- which $105,000, "Respondent paid another Panel E found that the Estate 15. immediately, days.” part balance within 30 and the anee Commission. The averments of petition charged that Respondent had attempted shield the three commercial properties from Following attachment. two days evidentia- ry 6, 2012, on hearings, January Panel E issued its Order and Report of Findings. Panel E concluded that Respondent violated Maine Bar Rule 3.716 and Maine Rules of Professional 8.4(c)17 Conduct by misleading attorney about his owner- ship of the commercial properties, failing to correct the learned, information when he upon having been open copied on Nuzzi, the letter Mr. Hull sent to Mr. that the information had been opposing disseminated to counsel or the court.18 16. This rule has abrogated since been and written into Maine Rules of 3.3(a)(1). Professional original Conduct The text of the rule is below:
Me. Bar Rule 3.7: (e) Adversary Conduct. (1) appearing professional tribunal, In capacity in a lawyer before a shall: (i) Employ, purpose for the maintaining the causes confided to the lawyer, only truth, such means as are consistent with and shall not seek to judge, jury, mislead the by any or tribunal artifice or false statement of fact or law[.] 8.4(c): Me. Rules of Professional professional Conduct 17. "It is miscon- lawyer duct for a engage fraud, involving dishonesty, conduct misrepresentation.” deceit or stated, Report 18. Panel pertinent E's part: knew, [Respondent] known, or should have that this information would be Nuzzi; sent on to attorney, [Mr. Eisenstein’s Mr.] and in was, by fact it Attorney July Hull’s letter of copy 15. He was a letter, addressee to this and he took no action to correct the misstate- ment. good repeated Hull in faith the misstatement to the Court, Superior when he based his Motion to Limit Attachment and Trustee January Process dated on the misstatements in the July 15 letter. WEOALOT, LLC, Whether the creation of conveyances and the innocently bank, not, thereto arose suggestion by from a is a herring. red Whatever the motivation for the creation *12 of conveyances, WEOALOT and the litigation the effect on of attorney misstatement to his would be the same. If the conveyance Nuzzi, had not by Attorney been detected the attachment entered on October prevented would Respon- not have estate, conveying dent from this real equity, which had considerable WEOALOT, through free of the attachment. If the Estate then had to chase property through down the an action for convey- fraudulent Judge’s Law Hearing Conclusions
Out concluded, convincing and evi- by clear hearing judge Our dence, 1.1 1.3 when violated MLRPC and that tax estate timely payment federal “failed recommend Estate, initial to file the but not for the failure by due further hearing judge an extension.” Our request return evidence, concluded, convincing clear and by 8.4(c). judge her hearing explained Our also violated MLRPC reasoning that conclusion: for shows, by convincing clear and evidence
The record in- knowingly misrepresented ownership his [Respondent] of land that were transferred parcels terests in the three Motion WEOALOT, three after he received the days LLC from of Trustee Process for and Attachment Attachment Hull only The email sent to Mr. indicated the Estate. WEOALOT, LLC of land transferred parcels the three names, not in his and his wife’s under WEOAL- were fact misstatement, OT, [Re- of this and because Because LLC. Hull misstatement after Mr. never corrected this spondent] email Nuzzi it true an to Mr. represented through as Eisenstein], through Motion to Mr. and [counsel Process, properties Limit and Trustee Attachment WEOALOT, subjected not initially LLC were transferred to If not for to the entered on October 2009. attachment Nuzzi, unlikely it title search Mr. is subsequent have been have been attached could property would misrep- and his wife. This conveyed freely by [Respondent] known to false at the [Respondent] was be resentation took no to correct steps it made and [Respondent] time was it. regarding that her judge pointed out “conclusion hearing
Our 8.4(c) Rule is consistent with violation Md. [Respondent’s] E Panel the Board Findings and Order of Report Then, 16-773, citing our the Maine Bar.” Rule Overseers of Report noted that Panel E’s judge anee, delay, ultimately prevailed, only additional may it have but after risk, expense. *13 is conclusive of that evidence misconduct the instant In of proceeding. light Report Findings Panel E’s and Court, presented consideration all evidence this [Re- spondent] by convincing clear and evidence violated Md. 8.4(c). Rule concluded, however, that, hearing judge
Our further “although Court ultimately finds that [Respondent] violated Rule 8.4(c) above, for the reasons stated the Court does not find [Respondent] fraudulently conveyed real property to WEOALOT, LLC, in violation of Maine’s Uniform Fraudulent Act, Transfer’s as argued Petitioner.” Our hearing judge also found that Petitioner had not established clear and convincing 8.4(d). evidence that Respondent violated MLRPC
Our hearing judge that, also concluded because Respondent 1.1, 1.3, 8.4(c), violated and he thereby also violated MLRPC 8.4(a).
Mitigation Our judge found that Respondent’s misconduct was mitigated by the facts that he self-reported his initial federal tax return error expressed and remorse for his errors. Our hearing judge further found that Respondent was forthright, cooperative, throughout honest both the Maine and Mary- Moreover, land proceedings. Respondent made full restitu- tion the Estate for the additional expenses misconduct occasioned.
II.
Maryland Rule 16-773(g) provides that “the factual
findings and
jurisdiction(s)
conclusions
law of the sister
are
treated generally as conclusive
an attorney’s
evidence of
mis
Katz,
conduct.”
Grievance Comm’n v.
429 Md.
(2012).
315, 55 A.3d 909
“The
introduction
such evidence
however,
not preclude,
does
the introduction of additional
evidence
shows
why
‘cause
no
discipline
lesser disci
”
pline should be imposed.’
Id. at
Rather,
or to
a different or more serious
based
order
under Rule 16-
‘exceptional
the existence
circumstances’
773(e).”
to a
Moreover,
reciprocal petition
once we refer a
Id.
under
assignment proceeds
Maryland
such
as
hearing judge,
16-773(f).
through
See Md. Rule
Rules 16-752
16-757.
*14
a Ma
any
discipline
In
matter referred to
attorney
the
judge,
accept
hearing judge’s findings
ryland hearing
we
clearly
correct unless shown to be
erroneous.
fact as
Lara,
v.
Md.
14
418
Attorney Grievance Comm’n
(2011). If
to
of facts are
exceptions
findings
A.3d
no
the
650
filed,
for the
may
findings
treat
those
as established
we
Rule
appropriate
sanction. Md.
purpose
determining
16-759(b)(2)(A). If, however,
exceptions
findings
to the
filed,
long
those
will
overruled so
as
exceptions
facts are
be
Attorney
not
erroneous.
findings
clearly
are
Grievance
(2014).
695, 718,
III. each exceptions, have filed Both Petitioner and examine, in turn. of which we shall
A. Hearing Exceptions to our in Judge’s Connection Conclusions 8.1(c). MLRPC hearing judge’s to our conclusion Respondent excepts to attorney his his interest knowingly misrepresented he and, consequently, excepts in also properties the WEOALOT to our ultimate judge’s conclusion that Respondent 8.4(c). violated MLRPC sustain exceptions. We both 8.4(c) provides MLRPC professional is misconduct “[i]t for lawyer to ... in engage involving dishonesty, conduct fraud, deceit or misrepresentation.” commentary The official 8.4(c) to MLRPC clear proscription makes that this is not law, limited to conduct in practice extends to action but attorney an or personal business on affairs reflect the individual’s character and law. See practice fitness to 8.4(c) Comment [2].
Respondent contends that our con- hearing judge erred in cluding misrepresented that he to his knowingly attorney, Mr. Hull, ownership the form his interest took the three com- June, WEOALOT, mercial properties conveyed, that he LLC. Respondent maintains that the information supplied to Mr. Hull accurately latter’s responded request various interests real Respondent argues: estate.
According [hearing judge], the email “indicated” that the Weoalot in fact in properties [sic] “were his and his *15 email, however, wife’s names.” The does of the nothing Instead, sort. the email lists the four Maine in properties which [Respondent] his wife “have interests.” It does not specify interests, nature but uses broad and (“have interests”) language inclusive an expansive in effort to all disclose of the real estate to which a could creditor look to satisfy against a judgment him.
Respondent argues further that our hearing judge misap- prehended the purpose Respondent’s emailed communica- tion to Hull Mr. and the later communications Mr. between Hull opposing relating counsel to that email. Respondent points out that the of his content email to Mr. Hull in was not response to formal from interrogatories opposing counsel him “required precise to detail the nature of his and wife’s Instead, in interests land.” [sic] in Respondent, his email to Hull, Mr. intended no more than voluntary a and preemptive disclosure of information. The given information was Mr. to Hull, he, turn, so that in could demonstrate to opposing that, had in as- Respondent sufficient value
counsel because judgment, “a satisfy any prejudgment his control to sets under further unnecessary.” Respondent maintains attachment was in that, no connection having misrepresentation there been Hull, to response to silence Respondent’s with his email Mr. Nuzzi, a wrote to subsequently Mr. Hull Mr. letter correct, no misstatements to Respondent, contained copy time any then or thereafter. The Respondent’s position. email supports
The record listed, Hull to his primary sent to Mr. addition Respondent residence, to all of properties, the three commercial which interest, as in his had an not title such represented that he reflects, that representa- alone. Insofar as record name Likewise, there is no indication in tion was correct. more sought Respondent Mr. Hull had from a record that Moreover, at no supplied. the one he specific response than Hull, to Mr. the contents following Respondent’s time email Nuzzi, Hull or along to Mr. did either Mr. passed which was Respondent clarify counsel ask to declare or opposing any holdings. of the real estate exact nature his interest period, proper- the relevant time the commercial Throughout albeit portfolio, financial part ties remained conveyed properties title those had that, so, entity even he and wife owned. WEOALOT—an Moreover, as a Respondent agreed to include WEOALOT proceeding the attachment when Mr. Eisenstein party to title do so he conducted a search. moved to after short, hearing evidence our In the uncontroverted before E) (as well, discloses, as the record before Panel judge insofar did ever intended to or does not demonstrate silence, the overtly through nature either misrepresent, properties.19 three commercial Our his interest *16 difficult, indeed, why imagine Respondent, had he intended 19. to It is holdings by of estate misrepresent the Estate the form his real to to WEOALOT, not conveying properties would have elected title of the to residence, equity in convey personal to which alone carried to title the sought by the in its roughly equivalent the amount Estate an amount to original attachment motion. contrary to is judge’s unsupported by conclusion the the and, thus, no requisite of evidence we defer- quantum owe it insufficiency evidentiary ence. Given the of for a support 8.4(c) violation, MLRPC it is that our possible judge may compelled give weight appro- have felt to more than was circumstances, to priate, under the and conclu- findings in the report sions contained of Panel E. This is even perhaps hear, more our likely given hearing judge’s to for opportunity herself, testimony Respondent conclude, based on that testimony, conveyed he had not fraudulently note, properties regard, to WEOALOT. our We this hearing judge’s statement that “conclusion regarding [Re- her 8.4(c) spondent’s] violation Md. Rule is consistent Report Findings E Order of Panel of the Board of Bar[,]” Overseers of the Maine as well as her further state- ment, by 16-773, her accompanied Maryland citation Rule that Panel Report E’s “is conclusive evidence of that miscon- duct in the instant proceeding.” Regardless, on our based independent record, review we hold that Petitioner establish, failed evidence, to clear and convincing that Respondent misrepresented to either Mr. Hull or Eisen- Mr. stein his interest the three commercial he con- properties veyed to WEOALOT. It follows that Petitioner failed to establish, evidence, clear and convincing that 8.4(c) committed an MLRPC violation. Exception
Petitioner’s Hearing our Judge’s Conclusion 8.1t(d)
toas the MLRPC Charge Petitioner, Counsel, through Bar takes exception our hearing judge’s conclusion that did not violate 8.4(d). Petitioner argues Respondent’s violation 8.4(c) of MLRPC shows was acting a manner prejudicial to the justice. administration of Petitioner also claims Respondent’s false statements adversely affected the pending litigation properties because under WEOAL- OT, LLC were not initially subject the attachment.
We overrule Petitioner’s exception the same reasons as we have sustained exceptions to our hearing
610 8.4(c) in with the connection MLRPC judge’s conclusions title, in the equity the accumulated charge. Regardless part remained properties three commercial wife, co-owner, portfolio as WEOALOT. financial to and the Maine Court made known the Estate Respondent throughout properties, of those and the existence and value to subject properties those remained operative period, the attachment. prejudgment Remaining MLRPC Violations
The to exception nor takes Neither Petitioner that, or of law hearing findings of fact conclusions judge’s our evidence, Respondent violated convincing clear and fact, see Md. findings those accept MLRPC 1.1 and 1.3. We 16-759(b)(2)(A), judge hearing and with our agree we Rule 1.1 and both MLRPC 1.3. violated com attorney 1.1 the to requires “provide
MLRPC
Attorneys
poten
to a client.”
remain
representation
petent
notwithstanding
1.1
violating
to
MLRPC
tially susceptible
a
knowledge
represent
skill or
to
requisite
they possess
Paz,
De
418 Md.
v.
La
Attorney
client.
Grievance Comm’n
(2011).
553,
attorney
to act or
534,
If an
“fails
MLRPC
hearing
Our
also concluded
judge
violated
8.4(a),
professional
which states: “It is
misconduct
(a)
a lawyer
to:
violate or attempt
Maryland
to violate the
Lawyers’
Conduct,
of
Rules
Professional
knowingly assist or
so,
induce another to
or do so
do
the acts of
through
anoth-
any
The violation of
other rule of professional
er[.]”
miscon-
8.4(a).
duct is
of
thereby a violation MLRPC
Attorney Griev-
Nelson,
363,
Comm’n
344,
ance
v.
425
Van
Md.
IV. We turn to the proper now sanction for Respon 8.4(a). 1.1, 1.3, dent’s violations of MLRPC and The severity attorney’s sanction for an “depends misconduct on the case, circumstances of each the intent which the acts committed, were gravity, nature and effect the viola tions, and any mitigating Attorney factors.” Grievance Ward, (2006). v. Comm’n 394 Md. 904 477 A.2d The of a purpose sanction is not to punish attorney, Attorney Garcia, 521, Grievance Comm’n v. 410 Md. 979 A.2d 146 (2009), but protect rather “to public public’s
612 legal profession,” Attorney
confidence in the
Grievance
Zimmerman,
119, 144,
When factors. Grievance any mitigating also consider (2014). Levin, v. 438 Md. A.3d Comm’n may Mitigating factors include: record; absence of a dishon prior disciplinary absence aof motive; or personal problems; est or emotional selfish rectify or to timely good faith efforts to make restitution misconduct; free to dis full and disclosure consequences cooperative proceedings; or attitude toward ciplinary board law; character or practice reputation; in the inexperience delay in disci disability impairment; or mental or physical rehabilitation; imposition interim plinary proceedings; sanctions; remorse; and remote finally, other penalties prior ness of offenses. *19 Gordon, 413 991
Attorney Grievance Comm’n v. Md. (2010) v. Sweit- (quoting Attorney A.2d 51 Grievance Comm’n (2006)). zer, 599, 586, 911 440 395 Md. A.2d that from the Maine sanction Petitioner we deviate requests and Re- public indefinitely suspend of a instead reprimand Maryland. in Petitioner practice from the of law spondent ac- Respondent’s is warranted because argues deviation corre- dishonesty were and deceit” and tions “infested injustice in incon- grave would and sponding discipline result making our In that precedent. within State’s discipline sistent judge’s relies on our argument, heavily hearing Petitioner 8.4(c), violated conclusion of law that Petitioner, in have to be error. which conclusion we found moreover, that not found aggravating three factors were cites more judge, our which Petitioner believes warrant by hearing First, Re- Petitioner public argues than a reprimand. conveyances in regard actions to the WEOALOT spondent’s motives; second, that by dishonest and selfish were motivated Respondent engaged multiple offenses during represen- tation of transfers; the Estate and the later property and third, that experience he has substantial practice of law. Given our conclusion that our judge erred conclud- 8.4(c) ing that Petitioner had violation, established an MLRPC only aggravating factor that remains relevant here is experience practice of law. On the other side of the ledger are the facts in mitigation were found our hearing judge: Respondent self- reported his initial error; federal tax return he expressed errors; remorse for his and he was forthright, cooperative, and honest throughout both the Maine Maryland proceed- ings. We also take into account committed to, did, make the Estate whole.
This case is quite similar to Attorney Grievance Comm’n v.
Queen,
556,
(2009),
Md.
This Court does not have a bright line rule for determining the appropriate sanction when an attorney fails to timely client, file for a papers long how of a delay is *20 required to warrant a type certain of discipline. We instead analyze continue to attorney’s an failure to file paperwork on a case-by-case and, basis in determining sanction, proper we to weigh continue heavily client, the harm done to the failure, reason for and other factors bearing on aggrava- 614 e.g., Attorney Grievance Compare, mitigation.
tion and
(2011)
25-26,
Respondent, Estate, violated tax return on behalf estate federal 8.4(a). and, also MLRPC With- 1.1, accordingly, 1.3 Moreover, Respon- doubt, are serious. those violations out of tax the areas attorney, practicing experienced dent is an In handling to the of estates. law relevant law and the reflects, not Respondent did addition, the record insofar as delay filing for explanation a reasonable advance Nevertheless, we the Estate. on behalf of tax return estate evident- Respondent, the facts that credit to significant accord we have for the reasons discipline; no record ly, prior has any Respondent’s is no there evidence explained, an were prompted with this matter in connection actions to the Overseers motive; his error self-reported improper Maine; repay a commitment to he made of the Bar error; a result of his monetary loss incurred as any for Estate the Estate upon, he made and, agreed that sum was once us to facts, totality, in their lead considered These whole. sanction appropriate is the reprimand conclude that a misconduct. PAY ORDERED; RESPONDENT SHALL IT SO IS THE THIS TAXED BY CLERK OF AS ALL COSTS TRANSCRIPTS, ALL COURT, COSTS OF INCLUDING 16-761, WHICH MARYLAND RULE FOR TO PURSUANT THE IN ENTERED FAVOR OF IS JUDGMENT SUM AGAINST COMMISSION ATTORNEY GRIEVANCE G. ADAMS. SCOTT JJ., WATTS, concur and dissent.
BATTAGLIA and
615 WATTS, J., concurring and in dissenting, which BATTAGLIA, J., joins. I concur in I
Respectfully, part part. agree and dissent Majority (“Adams”), with the Gregory Scott Adams Re- spondent, Maryland Lawyers’ violated Rules Professional (“MLRPC”) 1.1 (Competence), (Diligence), Conduct 1.3 8.4(a) MLRPC), 596-97, (Violating Maj. see at 109 Op. 117-18; however, A.3d at I would hold that Adams also 8.4(c) Fraud, Deceit, (Dishonesty, violated MLRPC or Misrep- resentation) 8.4(d) (Conduct Prejudicial That Is to the Justice). Administration of I Accordingly, indefinitely would suspend Adams from practice Maryland. of law in
I disagree
Majority’s
with the
conclusion that the hearing
judge erred in
determining
“knowingly misrepre-
Adams
ownership
sented his
interests
in”
properties
three
Adams and his
Maj.
wife had transferred to an
Op.
LLC. See
606-09,
at
I unpersuaded am by Majority’s reliance on the circum- stance that Adams used the word “interests” instead “title,” 607-09, Maj. Op. 124-25, word at 109 A.3d at as well as was, Adams’s contention that the worst, word “interests” “[a]t ... ambiguous[.]” Adams’s use of the word “interests” in this context is so vague that Adams obviously intended it as doublespeak, engaged and thus in misrepresentation. if
Even the Majority were correct in giving Adams the benefit of the doubt by determining that the hearing judge erred in finding that Adams engaged misrepresentation, I disagree would still with the Majority’s determination that 8.4(c) Adams did not violate by failing to disclose that 616 to the properties the three and his wife had transferred 608-09, lawyer at 124-25. A at 109 A.3d Maj. Op. LLC. See “ 8.4(c) and lack of by ‘misleading] silence
violates MLRPC
”
Nwadike,
v.
Attorney Grievance Comm’n
communication.’
(2010)
287,
(quoting
6 A.3d
416 Md.
Calhoun,
532, 548, 894 A.2d
v.
391 Md.
Comm’n
Grievance
(2006)).
words,
lawyer
violates MLRPC
In other
8.4(c)
example,
For
dishonesty by
omission.
by engaging
*22
Calhoun,
575, 547-48,
this
I am the statement, clarify see that Adams was not asked to his stances 124-25; 608-09, that Adams did at 109 A.3d at Maj. Op. LLC, at Maj. Op. to the see not transfer his home residence 8.4(c) obligated 125 n. 19. MLRPC 608 n. 109 A.3d at same, the of wheth affirmatively regardless to disclose Adams regardless his statement and clarify er he was asked to to transferring his home residence whether he refrained from it Adams’s statement—not his and Plainly put, the is LLC. properties of the three transferring intent
wife’s Thus, it does not dishonesty by involved omission. LLC—that his home transferring that Adams refrained from matter LLC, carried or that his home residence residence to the to the equal that was approximately in an amount equity Adams and his wife to be attached. sought amount was reasons, of the independent valid may perfectly have had attachment, transferring prejudgment Estate’s motion for only three properties, properties, three that, fact, LLC. matters after Adams What is failed to (and concealed) thus accurately disclose the nature of his properties “interests” the three and his wife had LLC, regardless to the the reasons for transferred transfer.*
Whether Adams or engaged misrepresentation dishones- omission, 8.4(c), violated which states: ty Adams professional is misconduct for a to ... lawyer engage “It dishonesty, fraud, or involving misrepresenta- conduct deceit tion!.]” 8.4(c)
The conclusion that Adams sup- violated MLRPC is indeed, ported—and, warranted—by the circumstance that E of Panel the Grievance Commission Board of Over- (“Panel E”) seers the Bar of Maine determined Adams 8.4(c), violated Maine Rule of Professional which Conduct is 8.4(c). adjudication identical MLRPC final in a “[A] disci- court, or remedial plinary proceeding by agency, another attorney that an has guilty professional tribunal been misconduct[,]” ... misconduct is conclusive evidence of that R. 16-773(g), Md. unless
Bar Counsel attorney or the demonstrates clear and *23 (1) convincing evidence that: the was so procedure lacking in notice or opportunity to be to heard as constitute a (2) deprivation of due process; was such infirmity [or] there proof of the establishing give misconduct as to rise to a Court, clear conviction th[is] that with duty, consistent its accept cannot as final the of determination misconduct!.] 16-773(e) omitted). R. (paragraph Md. breaks Instead of determining that was such proof there infirmity establishing misconduct give the as to rise to a clear conviction that this Court, duty, consistent "with its accept cannot as final Panel misconduct, determination E’s the Majority simply sweeps * Court, this Attorney alleges In the Grievance Commission neither that MLRPC, challenges the transfer was a violation the the nor judge's convincing determination clear and that evidence did not estab- engaged transferring properties lish Adams in fraud three the 8.4(c) only respect the LLC. MLRPC is at issue to Adams's statement.
618
the rug by
of misconduct under
Panel E’s determination
that,
Majority’s]
review of
independent
“based on
positing
[the
8.4(c). Maj.
record,”
Op.
did not violate MLRPC
the
Adams
above,
609,
even absent
For the above in part. dissent *24 that she BATTAGLIA has authorized me to state
Judge joins opinion. this notes further subject to attachment. ty of the defendant are E as a fact that 14. Panel found $75[,000]-[$]100,000 legal costs to redo the was for the claim of $14,000 returns, charged approximately had while vein, the claim for produce first instance. In like them in the $100,000 $245,000 greater than penalties was at least for interest and in the Panel D Respondent's and the amount referenced estimate Report. $366,000 Mortgages: Current Road, 2. 247 Boothbay Ocean Point East $590,000 Approximate FMV: $520,000 Mortgages: Current Road, 3. Mills Newcastle