ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Bradford Jay BARNEYS.
Misc. AG No. 2, Sept. Term, 2001.
Court of Appeals of Maryland.
Aug. 28, 2002.
805 A.2d 1040
For the aforementioned reasons, I respectfully dissent.
Judge WILNER and Judge HARRELL have authorized me to state that they join in the views expressed herein.
thereto. As we stated in Miles, there exists no specific length of time by which the taint of unlawful conduct will be purged. Miles, 365 Md. at 527-28, 781 A.2d at 810. The majority, on the one hand, acknowledges that “a lengthy detention can be used to exploit an illegal arrest at least as easily as a brief detention” and thus, the temporal factor is “ambiguous,” see maj. op. at 550 (quoting Ferguson v. State, 301 Md. 542, 550, 483 A.2d 1255, 1259 (1984)); on the other hand, however, the majority seems to indicate that if “[t]he time between the illegal arrest and the confession is the natural time that likely would have lapsed in such a situation,” then the temporal factor should automatically weigh against the State. See maj. op. at 550. I disagree with any implication that the “natural lapse of time” should be a decisive standard in evaluating attenuation. The temporal factor cannot be considered in a vacuum; surrounding facts and circumstances must also be considered.
Bradford Jay Barneys, Washington, DC, for respondent.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
HARRELL, Judge.
The Attorney Grievance Commission of Maryland, Petitioner, acting through Bar Counsel and at the direction of the Review Board, see
I.
From the evidentiary record below, the hearing judge, in a memorandum dated 5 September 2001, found that Respondent, a member of the Bars of New York, Connecticut, and the District of Columbia, held himself out as a Maryland attorney beginning in August of 1996, when he opened an office at 7505 New Hampshire Avenue, Suite 301, Langley Park, Maryland. Without noting any jurisdictional limitation on the practice, Respondent used the name “Law Offices of Bradford J. Barneys, P.C.” on his letterhead and business cards. The hearing court also found as a fact that, without being admitted to the Maryland Bar, Respondent engaged in the practice of law in methods, or procedures, or otherwise, that the person is authorized to practice in the State.
The hearing judge further found that, of special note, Respondent engaged in the unauthorized practice of law in the case of State of Maryland v. Santiago Sanchez, CT980986X.12 There, Respondent entered his appearance and filed other papers. He also contacted Gates Bail Bonds to arrange for Mr. Sanchez‘s one hundred fifty thousand dollars bond. Specifically, Respondent proposed that Deborah Gates, on behalf of Gates Bail Bonds, “accept an assignment of Mr. Sanchez‘s worker‘s compensation settlement proceeds, promising future payment in the amount of Fifteen Thousand Dollars,” because the settlement agreement already existed and the funds would be available within thirty days. When Ms. Gates agreed to the assignment, Respondent gave her a document printed on his letterhead and captioned, “Assignment of Settlement Proceeds,” which was signed by Respondent and purportedly by Mr. Sanchez. In that document, Respondent committed “to observe all terms of [the assignment agreement] and ... to withhold such funds from any settlement, judgment or verdict as may be necessary to adequately protect Gates Bail Bonds.”
Furthermore, notwithstanding Respondent‘s agreement to withhold funds from the proceeds of Mr. Sanchez‘s worker‘s compensation case, Judge Whalen found that Martin Gerel, Esquire, of the law firm of Ashcraft & Gerel, not Respondent, represented Mr. Sanchez in that case. The hearing judge also determined that, although Respondent did not state affirma-
Investigating Ms. Gates’ complaint against Respondent, one of Petitioner‘s investigators, Mr. Peregoy, visited the building in which Respondent‘s office was located on 19 November 1998, finding a lobby sign describing Barneys as an “attorney at law” and “a law office sign in Respondent‘s name outside his suite.” In response to Petitioner‘s subsequent letter apprising him of the Gates’ complaint and threatening to seek an injunction unless he closed his Langley Park Office, Respondent agreed in a reply letter of 12 December to close his practice on New Hampshire Avenue, including removing the sign outside his suite door. The removal of the suite sign was confirmed by the investigator during a second visit to the building on 28 December 1998. Respondent later removed his business cards from open view and availability, although the lobby sign had not been removed, as of 22 January 1999, the date of the investigator‘s third visit to Respondent‘s Maryland office.
As indicated, on these findings, the hearing judge concluded that Respondent committed each of the rule violations charged. With respect to the
The
Respondent was less than truthful with Ms. Gates and led her to believe that he had the ability to disburse the settlement proceeds. Moreover, Respondent was deceitful and dishonest to the judges of the District and Circuit Courts of Prince George‘s County by entering his appearance on behalf of clients when he knew that he was not authorized to practice law in the state of Maryland.
....
Although Petitioner did not allege with specificity what conduct Respondent engaged in to violate this subsection of 8.4[(d)], the Court finds that the overall conduct of Respondent as detailed in the Findings of Fact shows that Respondent‘s conduct was prejudicial to the administration of justice.
The hearing judge further noted in his conclusions of law that Respondent did not dispute “that he violated [
Petitioner took no exceptions to the findings of fact or conclusions of law. The recommendation for sanction filed by Petitioner seeks Respondent‘s disbarment.14 In support of that recommendation, Petitioner reminds us of our decision in Attorney Grievance Comm‘n v. Harper and Kemp, 356 Md. 53, 70, 737 A.2d 557, 566 (1999), where we stated that “unadmitted attorneys must be deterred from attempting to practice law in violation of the statutory prohibition against unauthorized practice.” Petitioner asserts that there is “no reasonable basis” on which Respondent “could have thought that his conduct was lawful.” Petitioner also cites the various instances of misrepresentation in which the hearing judge found Respondent engaged. In summary, citing our decision in Attorney Grievance Comm‘n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001), Petitioner argues:
The Respondent has displayed a total absence of respect for the law by his conduct in this matter. In addition to the unauthorized practice of law, he repeatedly engaged in other conduct involving dishonesty, fraud, deceit and misrepresentation. For such conduct, the appropriate sanction is disbarment.
Respondent is deeply remorseful for his conduct in this case and has no prior disciplinary record in any jurisdiction. When Respondent opened his office in Maryland, Respondent was a new solo practitioner and was not aware of the prohibition of operating a law office in Maryland even where the primary law practice was in the District of Columbia. Respondent, however, was fully aware of the prohibition of entering his appearance in the Maryland Courts. For that, Respondent believes he should be punished. However, the appropriate sanction is not disbarment but rather an Order preventing Respondent from applying for admission to the Maryland Bar for a period of two years.
Other than asserting that he excepted to one of the hearing judge‘s factual findings and stating the point of dis-
Perhaps Respondent‘s failure to argue more expansively in support of his exception is explained by his recognition that, in attorney discipline cases, we review the findings of the hearing judge to determine whether they are based on clear and convincing evidence, see Attorney Grievance Comm‘n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992); Attorney Grievance Comm‘n v. Clements, 319 Md. 289, 298, 572 A.2d 174, 179 (1990), and that the “hearing court‘s findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous.” Attorney Grievance Comm‘n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm‘n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993)). Here, there certainly is sufficient evidence in the record to support the hearing judge‘s finding that Respondent misrepresented to Petitioner‘s investigator the number of clients on whose behalf he was engaged, or had been engaged, in the unauthorized practice of law. Consequently, the finding is far from clearly erroneous.
II.
The purpose of the sanction imposed on an attorney following disciplinary proceedings is the same as for the proceedings themselves, which is well settled and often stated by this Court: to protect the public rather than to punish the attorney who engages in misconduct. See Attorney Grievance Comm‘n v. Jeter, 365 Md. 279, 289, 778 A.2d 390, 396 (2001); Attorney Grievance Comm‘n v. Tolar, 357 Md. 569, 584, 745 A.2d 1045, 1053 (2000); Attorney Grievance Comm‘n v. Myers, 333 Md. 440, 446, 635 A.2d 1315, 1318 (1994); Goldsborough, 330 Md. at 364, 624 A.2d at 513; Attorney Grievance Comm‘n v. Protokowicz, 329 Md. 252, 262, 619 A.2d 100, 105 (1993); Attorney Grievance Comm‘n v. Hamby, 322 Md. 606,
[t]he public interest is served when this Court imposes a sanction which demonstrates to members of this legal profession the type of conduct that will not be tolerated. By imposing such a sanction, this Court fulfills its responsibility to insist upon the maintenance of the integrity of the Bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.
369 Md. 85, 98, 797 A.2d 757, 764 (2002) (quoting Attorney Grievance Comm‘n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002) (internal quotations omitted) (quoting Attorney Grievance Comm‘n v. Wallace, 368 Md. 277, 289, 793 A.2d 535, 542-43 (2002) (citations omitted))). See also Attorney Grievance Comm‘n v. Lane, 367 Md. 633, 642, 790 A.2d 621, 626 (2002); Attorney Grievance Comm‘n v. Harris, 366 Md. 376, 405, 784 A.2d 516, 532-33 (2001); Attorney Grievance Comm‘n v. Zdravkovich, 362 Md. 1, 31-32, 762 A.2d 950, 966 (2000). “Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case,” Garfield, 369 Md. at 98, 797 A.2d at 764 (quoting Dunietz, 368 Md. at 428-29, 795 A.2d at 711 (citation omitted)), and “tak[es] account of any particular aggravating or mitigating factors.” Id. (quoting Attorney Grievance Comm‘n v. Glenn, 341 Md. 448, 484, 671 A.2d 463, 481 (1996) (citing Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994))).
Our research reveals six relatively recent cases dealing with attorneys whose flagship violations were of
1. The Exception
In Harris-Smith, we concluded that Harris-Smith violated
Based on this conduct, we nonetheless found that Harris-Smith violated
In our consideration of the appropriate sanction, we gauged the graveness of Harris-Smith‘s conduct against
In imposing the 30-day suspension, we noted that Harris-Smith‘s admission to the Maryland federal court distinguished her case from two other cases, Harper and Kemp and James, where the violations of
2. The Twilight Zone
The significance of the “federal overlay” relied on in Harris-Smith is evident in Kennedy v. The Bar Ass‘n of Montgomery County, 316 Md. 646, 561 A.2d 200 (1989). In Kennedy, the Bar Association of Montgomery County brought suit and obtained a permanent injunction “directed at preventing continuation of the illegal conduct [(unauthorized practice of law)] in which the court found Kennedy to be engaged.” Kennedy, 316 Md. at 668, 561 A.2d at 211.17 Kennedy, who was admitted to the District of Columbia Bar and the Maryland federal court, had a law office in Silver Spring, Maryland. His partner, Edward Jasen, was a member of the Maryland and District of Columbia Bars. As we explained, “Kennedy produced ninety percent of the business for the firm, and did eighty to ninety percent of the work done by the firm in the office.... Jasen and Kennedy almost always presented themselves together before the court. But Jasen rarely moved for
In modifying the broad injunction of the Circuit Court, we addressed Kennedy‘s “claimed right to practice federal and non-Maryland law [in Maryland].” Kennedy, 316 Md. at 661, 561 A.2d at 207. While we acknowledged that the “federal overlay” permitted by Kennedy‘s admission to the federal court in Maryland enabled Kennedy to practice law before the local federal court, Kennedy, 316 Md. at 661, 561 A.2d at 208, we rejected Kennedy‘s contention that he was free to practice federal and non-Maryland law from his Silver Spring office. Stating that “Kennedy‘s theory ... would ... permit the unadmitted attorney to advise the client concerning only a portion of the general legal spectrum but then prohibit the unadmitted attorney from advising as to the balance of the spectrum,” Kennedy, 316 Md. at 662-63, 561 A.2d at 208, we further pointed out, similar to Harris-Smith, that “[Kennedy] is not permitted to sort through clients who may present themselves at his Maryland office ... because the very acts of interview, analysis and explanation of legal rights constitute practicing law in Maryland.” Kennedy, 316 Md. at 666, 561 A.2d at 210. Even though we considered it “practically impossible” for Kennedy to maintain a principal office in Maryland exclusively for engaging in a practice before the courts to which he was admitted, Kennedy, 316 Md. at 667, 561 A.2d at 211, we suggested possible exceptions, indicating in a footnote that “[f]or example, Kennedy might limit his practice from the Silver Spring office to Maryland federal and D.C. cases referred by other attorneys.” Kennedy, 316 Md. at 668 n. 9, 561 A.2d at 211 n. 9.
3. The Rule
As in Kennedy; Attorney Grievance Comm‘n v. Harper and Kemp involved an unadmitted attorney aligning himself with a Maryland attorney in order to cloak his unauthorized practice of law. Harper, who was admitted to the District of Columbia Bar, and Kemp, who was admitted in Maryland, established the law firm of “Harper and Kemp” in Baltimore in 1995 to
We addressed three complaints from the firm‘s clients that resulted in the petition for disciplinary action against both Harper and Kemp. Finding that Harper violated
In considering the appropriate sanction for Harper, we found his violation of
[h]e set up an office for the general practice of law in Baltimore City in order to wring whatever value he could out of the inventory of pending cases of a disbarred lawyer who had practiced in Baltimore City. There is no reasonable basis on which Harper could have thought that his conduct was lawful. His motive in creating Harper & Kemp was greed. There is no mitigation. Other unadmitted attorneys must be deterred from attempting to practice law in violation of the statutory prohibition against unauthorized practice.
Id. Therefore, we found that the appropriate sanction was disbarment.
Johnson is the most recent case of an attorney whose unauthorized practice resulted in disbarment. Johnson, admitted in Virginia and the District of Columbia, opened a law practice in Silver Spring, Maryland, with an attorney admitted in Maryland. Although Johnson testified that he only handled Virginia and D.C. cases, leaving Maryland cases to his partner, we concluded that Johnson had violated
A substantial portion of our opinion in Johnson was dedicated to addressing Johnson‘s legal representation of a Maryland couple whose home he contracted to purchase. While the couple was living abroad, Johnson filed a bankruptcy petition on their behalf without their knowledge or consent, forging their signatures on the papers, as well as his partner‘s signature. We found that this conduct constituted violations of
We further justified disbarment by stating that Johnson “repeatedly engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.” Johnson, 363 Md. at 633, 770 A.2d at 151. Regarding
Of the
In James III, we found that James held himself out as an attorney, and represented two clients (Romano/Orimogunje) during the period of his 1994-1995 suspension. James IV, 355 Md. at 477-78 n. 2, 735 A.2d at 1034 n. 2. Because James III
James argued, regarding Wrubelski and Jackson, that he neither requested nor received payment for the legal services he provided them. We rejected this proffered distinction, holding that “‘[a]lthough an agreement upon the amount of a retainer and its payment is rather conclusive evidence of the establishment of the attorney-client relationship, the absence of such an agreement or payment does not indicate conclusively that no such relationship exists.‘” James IV, 355 Md. at 476, 735 A.2d at 1033 (quoting Central Cab Co. v. Clarke, 259 Md. 542, 549-50, 270 A.2d 662, 666 (1970)).
In mitigation, James “produced evidence that he was an alcoholic and that his alcoholism had substantially impaired his judgment, resulting in his failure to comply with his suspension. James further produced evidence that, since July 1996, he had been sober.” James IV, 355 Md. at 471-72, 735 A.2d at 1031. Referring to James’ representation of Roane, we rebuffed James’ claim, finding that “James’ asserted mitigation disintegrated ... with evidence that he was violating his suspension in 1997,” after he had become sober. James IV, 355 Md. at 486-87, 735 A.2d at 1039. Furthermore, we concluded that “[t]he result is a record that starkly reveals James’ deliberate violation of the order of suspension that has
Briscoe was decertified three times as a practicing attorney in Maryland, each time for his failure to pay Client‘s Security Trust Fund dues. The last decertification was imposed in April of 1998, but in September 1998, while still decertified, he represented a client in a Maryland courtroom. This instance sufficed for us to find Briscoe in violation of
has consistently failed to cooperate with Bar Counsel, has practiced law when unauthorized to do so, and has entered into a contingency fee arrangement, but not reduced the same to writing. He has cashed checks from settlements for clients at a time when he did not maintain a trust account and failed to make the appropriate disbursements from those settlements, was unable or unwilling to produce records relating to some of the disbursements, and he failed to refund fees when required to do so.
Briscoe, 357 Md. at 568, 745 A.2d at 1044.
Although the “latter violations involving the mishandling of clients’ funds alone warrant[ed] disbarment,” Id. (citing Attorney Grievance Comm‘n v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998) (citation omitted)), we also found that “commingling and conversion of client funds, in the absence of mitigating circumstances, ordinarily warrants disbarment.” Id. (citations omitted). Therefore, where “[Briscoe] ha[d] presented nothing in mitigation,” we disbarred him from the practice of law. Briscoe, 357 Md. at 568, 745 A.2d at 1044.
B.
Where Does Barneys’ Case Fall on the Unauthorized Practice Continuum?
In four of the six unauthorized practice cases discussed supra, we expressly identified “deterrence” as one objective of the imposed sanctions (Harris-Smith, Harper and Kemp,
The second distinguishing factor of Respondent‘s case from Harris-Smith is the absence here of a “federal overlay.” The “federal overlay” factor is significant because it provides at least some plausible reason why an attorney might believe that he or she is within his or her rights in maintaining a practice or office in Maryland. In fact, we gave one example in Kennedy of how an attorney legitimately might maintain an office in Maryland for the purpose of practicing federal law without running afoul of
The third distinguishing factor between Respondent‘s case and Harris-Smith is that, unlike Respondent, Harris-Smith endeavored to practice law within her arguable jurisdictional
Respondent claims that he “has cooperated fully with the Attorney Grievance Commission” by voluntarily closing his Maryland office and operating from his office in the District of Columbia since approximately May 1999. The “voluntary” nature of Respondent‘s act is tempered, however, as he closed his office only after his involvement in the Sanchez case was discovered and he was threatened with an injunction action. Had his misconduct not been discovered then, there is nothing in the record to suggest Barneys would not have continued or even expanded his illegal activities. In our view, it seems that Respondent, at best, cooperated with the investigation (to the extent he did) only when he had little real choice to do otherwise.21 In addition, even if Respondent‘s ultimate termination of misconduct was viewed as voluntary, this alone would not warrant necessarily a sanction less than disbarment. Although Harris-Smith, who was suspended, terminated her practice of law in Maryland when the investigation by Bar Counsel commenced, Harper, who also ceased his misconduct upon its discovery, was not spared disbarment.
Although remorse and regret are recognized as mitigating factors (see Johnson, 363 Md. at 632, 770 A.2d at 150 (discussing Attorney Grievance Comm‘n v. O‘Neill, 285 Md. 52, 53, 400 A.2d 415, 416 (1979)); Attorney Griev. Comm‘n v. Wyatt,
Overall, our review of the unauthorized practice cases resulting in disbarment leads us to believe that they have more elements in common with Respondent‘s case than does his case with Harris-Smith. For example, although Harper seemed to have represented many more clients than Respondent, the cases share at least two common features. First, both attorneys held themselves out as admitted in Maryland, in violation of
Respondent‘s conduct regarding Mr. Sanchez also highlights his deceptive tendencies,22 making his case like Johnson, where we found the attorney “repeatedly engaged in conduct involving dishonesty, fraud, deceit, and misrepresentation.” Both Johnson and Respondent forged signatures of purported clients, and both caused significant damage to third parties; in Respondent‘s case, the losses incurred by Gates Bail Bonds and Ms. Gates.
In addition, whether the facts of a particular case sustain related or companion violations of
Finally, suspending Barneys rather than disbarring him would give the impression that we view his conduct as more similar to the conduct of attorneys who violate
Conclusion
Based on the Court‘s trend of disbarring attorneys for unauthorized practice violations under
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT; INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST BRADFORD JAY BARNEYS; RESPONDENT‘S DISBARMENT SHALL COMMENCE THIRTY DAYS FROM THE FILING OF THIS OPINION.
Dissenting Opinion by BELL, C.J. in which ELDRIDGE, J., joins.
I have no quarrel with the majority‘s statement of the purpose of the sanction imposed on an attorney following disciplinary proceedings or the role that the facts and circumstances of the particular case plays in the determination of that sanction. We have long recognized, see Bar Ass‘n of Baltimore City v. Marshall, 269 Md. 510, 519, 307 A.2d 677, 682 (1973) (“It must be borne in mind that the purpose of disciplinary actions such as this is not to punish the offending attorney, as that function is performed in other types of legal proceedings, but it is to protect the public from one who has demonstrated his unworthiness to continue the practice of law“), and emphatically stated, most recently in Attorney Griev. Comm‘n v. Santos, 370 Md. 77, 88-89, 803 A.2d 505, 511-12 (2002), that it is to protect the public rather than to punish the attorney who engages in misconduct and that the decision as to sanction in a particular case does, and must, depend on the facts and circumstances of that case. Attorney Griev. Comm‘n v. Garfield, 369 Md. 85, 98, 797 A.2d 757, 764 (2002). See Attorney Griev. Comm‘n of Maryland v. Hayes, 367 Md. 504, 519, 789 A.2d 119, 129 (2002); Attorney Griev. Comm‘n of Maryland v. Jeter, 365 Md. 279, 290, 778 A.2d 390, 396 (2001); Attorney Griev. Comm‘n of Maryland v. Tolar, 357 Md. 569, 585, 745 A.2d 1045, 1053 (2000); Attorney Griev. Comm‘n v. Franz, 355 Md. 752, 761, 736 A.2d 339, 344 (1999); Attorney Griev. Comm‘n v. Ober, 350 Md. 616, 631-32, 714 A.2d 856, 864 (1998); Attorney Griev. Comm‘n v. Hamby, 322 Md. 606, 611, 589 A.2d 53, 56 (1991); Attorney Griev. Comm‘n v. Babbitt, 300 Md. 637, 642, 479 A.2d 1372, 1375 (1984). My disagreement, which involves the application of these principles, is, however, quite basic and sharp.
Relevant to and, indeed, a part of the facts and circumstances that inform the sanction decision is “the nature and gravity of the violations and the intent with which they were committed.” Attorney Griev. Comm‘n. v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). See Attorney Griev. Comm‘n of Maryland v. Pennington, 355 Md. 61, 78, 733 A.2d 1029, 1037-38 (1999); Attorney Griev. Comm‘n of Maryland v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998); Attorney Griev. Comm‘n v. Montgomery, 318 Md. 154, 165, 567 A.2d 112, 117 (1989). Likewise relevant are whether the objective of the sanction has been achieved, Attorney Griev. Comm‘n v. Harris-Smith, 356 Md. 72, 90-91, 737 A.2d 567, 577 (1999), the attorney‘s prior grievance history, whether there were prior disciplinary proceedings, the nature of the misconduct involved in those proceedings and the nature of any sanctions imposed, as well as any facts in mitigation, Franz, 355 Md. at 762-63, 736 A.2d at 344; Maryland State Bar Ass‘n v. Phoebus, 276 Md. 353, 362, 347 A.2d 556, 561 (1975), the attorney‘s remorse for the misconduct, Attorney Griev. Comm‘n v. Wyatt, 323 Md. 36, 38, 591 A.2d 467, 468 (1991), and the likelihood of the conduct being repeated. Attorney Griev. Comm‘n v. Freedman, 285 Md. 298, 300, 402 A.2d 75, 76 (1979). As to the latter, while we have held that conduct that is an aberration nevertheless can be so egregious as to warrant the imposition of a significant sanction, see Attorney Griev. Comm‘n v. Protokowicz, 329 Md. 252, 263, 619 A.2d at 100, 105 (1993), we have also held that an attorney‘s voluntary termination of the charged misconduct, when accompanied by an appreciation of the serious impropriety of that past conduct and remorse for it, may be evidence that the attorney will not again engage in such misconduct. Freedman, 285 Md. at 300, 402 A.2d at 76. See Franz, 355 Md. at 762-63, 736 A.2d at 344. See also Harris-Smith, 356 Md. at 90-91, 737 A.2d at 577 (acknowledging the principal objective of sanction in that case, deterrence of other non-admitted attorneys from undertaking a federal practice from an office in Maryland, was achieved when firm dissolved after bar counsel‘s investigation commenced).
To be sure, the misconduct in this case, as the petitioner and the majority maintain, is quite serious. As they appropriately remind us, it is the kind of misconduct, unauthorized practice of law, that this Court, has indicated must be deterred. See Attorney Griev. Comm‘n v. Harper and Kemp, 356 Md. 53, 61-64, 737 A.2d 557, 561-63 (1999). Just as troublesome, if not more so, are representations that the
On the other hand, while serious, the respondent‘s misconduct does not rise to the level of egregiousness of the misconduct in Harper and Kemp and Attorney Griev. Comm‘n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001), on which the petitioner relies and in both of which the ultimate sanction of disbarment was imposed. In Harper and Kemp, we characterized the misconduct as “deliberate and persistent” where the attorney “set up [an] office for the general practice of law in Baltimore City in order to wring whatever value he could out of the inventory of pending cases of a disbarred lawyer who had practiced in Baltimore City.” 356 Md. at 70, 737 A.2d at 566. As the petitioner points out, we also concluded that there was “no reasonable basis on which [the attorney] could have thought his conduct was lawful,” id., observing further “[h]is motive in creating Harper & Kemp was greed. There is no mitigation.” Id.
In Johnson, to be sure, the unauthorized practice of law in Maryland was at the core of the case; however, there were a great many more violations implicating the fitness of the respondent in that case to practice law anywhere, including violations of Rules 8.4(a), (c) and (d),1 363 Md. at 631, 770 A.2d at 150. There, the respondent and another lawyer “forged a professional association when they began sharing office space, equipment, support staff, and expenses in Silver Spring, Montgomery County, Maryland,” practicing under the firm name, “Law Offices of McLemore and Johnson, P.C.” 363 Md. at 604,
Aware of the factors to be considered when determining the appropriate sanction, we observed that the respondent “neither recognize[d] that his conduct violated the MRPC nor expresse[d] any regret for the harm he caused.” Johnson, 363 Md. at 632, 770 A.2d at 151. In fact, the hearing judge found that his actions were “without excuse or mitigation.” Id. Then, after acknowledging that the respondent had engaged in “repetitive instances of unauthorized practice of law,” we specifically noted his repeated engagement in conduct involving dishonesty, fraud, deceit, and misrepresentation; “[h]e made false statements to a tribunal, and he acted against the interests of [his clients] during and after the sale of their home to him.” Id. at 633, 770 A.2d at 151.
Taking a slightly different tack, the majority‘s analyzes the relatively recent cases in which the flagship violation was the unauthorized practice of law,2 in addition to Johnson and Harper and Kemp; Attorney Griev. Comm‘n v. Briscoe, 357
To be sure, the conduct in this case is more egregious than that in Harris-Smith. Unlike in this case, there, Harris-Smith, who was admitted to the bar of the United States District Court for the District of Maryland, did not represent clients in Maryland state court proceedings, and made an effort to conduct her practice in Maryland consistent with her admission to the federal court.3 And the
It simply is not accurate to say that the facts of this case are close to the facts in the cases on which the majority relies. I have already, in refuting the petitioner‘s argument, demonstrated the extreme difference between the case sub judice and Harper and Kemp and Johnson. What the Harris-Smith court had to say about James concisely and accurately describes the situation and clearly differentiates that case from
Briscoe similarly can be distinguished. This Court pointed out as a most significant factor that Briscoe “has disregarded an order of this Court by continuing to practice law while decertified as a practicing attorney because of his failure to pay Client‘s Security Trust Fund dues (and, he has been decertified three times since 1989 for failure to pay these dues).” 357 Md. at 566, 745 A.2d at 1044. By itself, this makes Briscoe a stronger case for disbarment, for it demonstrates both a disregard for an order of court specific in its application to the attorney and in its prohibition against that attorney practicing law. In addition, however, other factors entered into the disbarment decision, as the majority acknowledges, 370 Md. at 587-588, 805 A.2d at 1052:
“Respondent, at least since the February 2, 1999 Inquiry Panel hearing, if not before, has consistently failed to cooperate with Bar Counsel, has practiced law when unauthorized to do so, and has entered into a contingency fee arrangement, but not reduced the same to writing. He has cashed checks from settlements for clients at a time when he did not maintain a trust account and failed to make the appropriate disbursements from those settlements, was unable or unwilling to produce records relating to some of the disbursements, and he failed to refund fees when required to do so. As this Court has noted many times before, these latter violations involving the mishandling of clients’ funds alone warrant disbarment. Id. [Atty. Griev. Com‘n v. Milliken] at 519, 704 A.2d at 1241 (“Respondent‘s treatment of his trust account in violation of
Rules [16-607] and[16-609]
Kennedy, too, fails to assist the majority. Kennedy consented to disbarment. Attorney Griev. Comm‘n v. Kennedy, 319 Md. 110, 570 A.2d 1243 (1990).
Here, the respondent has not heretofore been sanctioned for misconduct and, in fact, has not before been the subject of disciplinary proceedings. He also readily admitted his involvement in the unauthorized practice of law and has never sought to deny or minimize it. Similarly, he has not disputed any of the other violations except the one charging him with making an untruthful statement to the petitioner‘s investigator. As the majority has pointed out, dismissal of that violation would not have changed the nature or the seriousness of the violations. Moreover, the respondent terminated the misconduct voluntarily, albeit after his involvement in the Sanchez case was discovered. See Franz, 355 Md. at 762-63, 736 A.2d at 344 (where the respondents self reported, but only after becoming aware that the media intended to do a story about lawyers soliciting clients after a train derailment and that they were among the lawyers who would be mentioned). And the respondent has expressed remorse and regret for having engaged in the misconduct.
To reach the sanction it wishes to impose, the majority pays “mere lip service” to the test that this Court has adopted and it has itself acknowledged, that the appropriate sanction for
Nor can the respondent‘s conduct regarding Mr. Sanchez be equated with that in Johnson or be characterized as “repeatedly engag[ing] in conduct involving dishonesty, fraud, deceit, and misrepresentation.” 370 Md. at 591, 805 A.2d at 1054. The respondent‘s conduct with respect to the Sanchez matter was reprehensible and caused damage to a third party, but it was a single instance. Johnson‘s conduct, according to this Court, in addition to being appropriately characterized as “repeatedly engag[ing] in conduct involving dishonesty, fraud, deceit, and misrepresentation,” consisted of making false statements to a tribunal and acting against the interests of his clients during and after the sale of their home to him. Johnson, 363 Md. at 633, 770 A.2d at 151. In addition, while Johnson forged the signatures of his purported clients, they disputed having retained him, and the signature of his “part-
The majority questions the voluntariness of the respondent‘s cooperation and the sincerity of his remorse, concluding, as to the latter, “we find it impossible to parse with sufficient certainty whether Respondent‘s claimed remorse is sincere, mere lip service, or simply damage control.” 370 Md. at 591, 805 A.2d at 1054. It relies also on the fact that the respondent was found to have violated Rules 8.4(b), (c) and (d), which is consistent with the Harper violation of Rule 8.4(b) and (d), and Johnson‘s violation of Rule 8.4(a), (c), and (d). Id.
As we have seen, this Court has stated that the voluntariness of the respondent‘s cooperation, even though it occurs after an investigation has begun, is mitigating, as is the respondent‘s remorse. Freedman, 285 Md. at 300, 402 A.2d at 76 (“‘The Respondent voluntarily terminated his relationship with Williams over seven years ago. He voluntarily made this information known to the Federal investigators and has not used runners since discharging Williams.‘“). See Franz, 355 Md. at 763-64, 736 A.2d at 344, in which we observed:
“The respondents, within a short time of its occurrence, recognized the impropriety of their having made direct contact with the victims of the train accident and immediately withdrew as counsel for those clients. They subsequently cooperated with those former clients and new counsel of their choice, turning over the results of their investigation in the process. The respondents neither charged, nor accepted, a fee for the time spent investigating the accident or facilitating, with new counsel, a smooth transition. Nor did they seek, or accept, reimbursement for the expenses incurred. Moreover, the respondents self reported their misconduct to the petitioner, prior to the publication of a newspaper article that detailed their and other attorney‘s conduct in connection with the train accident. In addition, the respondents cooperated fully with the petitioner in its investigation leading to these charges being filed. As we have seen, the respondents have never denied their misconduct or sought to minimize it; rather, they have taken full
responsibility and stated repeatedly their regret for having engaged in it.”
We have even recognized that whether the objective of the sanction has been achieved is a legitimate consideration and that the objective may be achieved by voluntary action prompted by the investigation. Harris-Smith, 356 Md. at 90-91, 737 A.2d at 577.
What the majority says about cooperation and remorse can be said about those matters in any case. Rather than a legitimate application of the factors, it seems more an unwillingness to apply factors that the Court already has determined to be appropriate in assessing the sanction in an attorney disciplinary case. In any event, there is an objectivity about both the cooperation and remorse issues that the majority discounts. At all times, the respondent has admitted the serious impropriety, accepted full responsibility, except for disputing the allegation that he made a misrepresentation to the petitioner‘s investigator concerning the number of cases he had filed in Maryland courts, and cooperated with the petitioner‘s investigation. Quite significantly, the respondent did not dispute the Rule 8.4 violations, quite serious charges, a clear indication both of the acceptance of responsibility and the expression of remorse.
Considering all of the facts and circumstances, not simply some of them, and viewing them objectively, without predetermining what the appropriate sanction should be, I believe that the appropriate sanction is an indefinite suspension from the practice of law.
I dissent.
Judge ELDRIDGE joins in the views expressed herein.
Notes
Commencement of disciplinary or remedial action.
Upon approval of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. Maryland Rule of Professional Conduct 8.4, in relevant part, provides:
“It is professional misconduct for a lawyer to:
“(a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through acts of another;
****
“(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
“(d) engage in conduct that is prejudicial to the administration of justice.”
****Misconduct.—“Misconduct” means an act or omission by an attorney, individually or in concert with any other person or persons which violates the Maryland Rules of Professional Conduct, as adopted by Rule 16-812, whether or not the act or omission occurred in the course of an attorney-client relationship.
Effective 1 July 2001, the definition of “professional misconduct” is codified at Maryland Rule 16-701(i), which adopts “the meaning set forth in Rule 8.4” as adopted by Rule 16-812. Professional misconduct “includes the knowing failure to respond to a request for information authorized by this Chapter without asserting, in writing, a privilege or other basis for such failure.” See Rule 16-701(i). Another relatively recent case, Attorney Griev. Comm‘n v. Brown, 353 Md. 271, 725 A.2d 1069 (1999), involved a violation of
“None of the court pleadings associated with Ms. Jones’ case contain Mr. Wilder‘s signature; nevertheless, Mr. Wilder‘s name appears below respondent‘s signature on those pleadings. Respondent also introduced Mr. Wilder as co-counsel on behalf of Ms. Jones to the administrative hearing examiner. The clerk of this Court has certified that Mr. Wilder is not admitted to practice in Maryland and records show that he has moved to practice pro hac vice only once in an unrelated 1995 case. Mr. Wilder‘s oral appearance on behalf of Ms. Jones at the administrative hearing constituted a “practice of law,” in which respondent assisted in violation of
In none of the cases on which the majority relies, except Harris-Smith, was there a federal overlay in the context of a disciplinary proceeding. That is not because none of the respondents was admitted to the federal bar, both Kemp and Harper were, as the majority itself notes, see 370 Md. 582 n. 16, 805 A.2d 1048, 1049 n. 16, rather, it is because none of them raised that as a defense or could have, given the nature and situs of the activity involved.
The federal overlay issue in Kennedy arose in the context of proceedings to limit an injunction entered against Kennedy and enjoining his unauthorized practice of law, proceedings that preceded disciplinary proceedings being initiated against Kennedy v. Bar Ass‘n of Montgomery County, Inc. 316 Md. at 646-650, 561 A.2d at 200-202. As the Harris-Smith court pointed out,
“Kennedy was not admitted to practice in Maryland and did not in fact attempt to limit his practice from his Maryland office to matters before the Maryland District. The federal overlay issue arose in Kennedy only after he had been enjoined from the unauthorized practice of law, and he sought to limit the scope of the state court injunction.”
356 Md. at 91, 737 A.2d at 577. That the case sub judice compares unfavorably to Harris-Smith has been admitted; accordingly, as to it, if there were a federal overlay, it would add nothing. Nor does it add anything when this case, which has no federal overlay, is compared to other cases, which also do not have a federal overlay.
(a) A lawyer shall not use a firm name, letterhead or other professional designation that violates Rule 7.1 [(Communications concerning a lawyer‘s services)]. A trade name may be used by a lawyer in private practice if it does not imply a connection with a government agency or with a public or charitable legal services organization and is not otherwise in violation of Rule 7.1.
(b) A law firm with offices in more than one jurisdiction may use the same name in each jurisdiction, but identification of the lawyers in an office of the firm shall indicate the jurisdictional limitations on those not licensed to practice in the jurisdiction where the office is located.
....
(d) Lawyers may state or imply that they practice in a partnership or other organization only when that is the fact.
MRPC 7.1 provides:
A lawyer shall not make a false or misleading communication about the lawyer or the lawyer‘s services. A communication is false or misleading if it:
(a) contains a material misrepresentation of fact or law, or omits a fact necessary to make the statement considered as a whole not materially misleading;
(a) In the course of representing a client a lawyer shall not knowingly:
(1) make a false statement of material fact or law to a third person; or
(2) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client.
(b) The duties stated in this Rule apply even if compliance requires disclosure of information otherwise protected by Rule 1.6.
....
(b) commit a criminal act that reflects adversely on the lawyer‘s honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice....”
Unless authorized by law to practice law in the State, a person may not represent to the public, by use of a title, including “lawyer“, “attorney at law“, or “counselor at law“, by description of services, (b) is likely to create an unjustified expectation about results the lawyer can achieve, or states or implies that the lawyer can achieve results by means that violate the rules of professional conduct or other law; or (c) compares the lawyer‘s services with other lawyers’ services, unless the comparison can be factually substantiated.
A lawyer not admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that:
(1) involves the practice of law in this State by that lawyer, or
(2) involves that lawyer holding himself or herself out as practicing law in this State....
Rule 16-701(a) defines an attorney for purposes of discipline or inactive status as including “a member of the bar of any other state, district, or territory of the United States who engages in the practice of law in this State, or who holds himself or herself out as practicing law in this State, or who has the obligation of supervision or control over another attorney who engages in the practice of law in this State.”