ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Nikolaos Panagiotis KOURTESIS.
Misc. Docket AG No. 4, Sept. Term, 2013.
Court of Appeals of Maryland.
March 24, 2014.
87 A.3d 1231
Robert N. Levin, Esq. (The Law Offices of Robert N. Levin, P.C., Gaithersburg, MD), for Respondent.
Argued before BARBERA, C.J., HARRELL, GREENE, ADKINS, McDONALD, WATTS, LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.
HARRELL, J.
This reciprocal disciplinary action involves Nikolaos Panagiotis Kourtesis, who was admitted to the Bar of this Court on 17 December 1997 and to the Bar of the District of Columbia on 14 November 2005. On 14 February 2013, the District of Columbia Court of Appeals suspended indefinitely Kourtesis from the practice of law in the District of Columbia, and ordered further that pending disciplinary charges filed against him in the District be held in abeyancе due to his self-professed disability preventing him from defending himself (or assisting his counsel in the defense) against the charges. On 10 March 2013, the Attorney Grievance Commission of Maryland, through Bar Counsel, filed, pursuant to
On 20 March 2013, we issued a Show Cause Order. Bar Counsel responded on 17 May 2013, asking that reciprocal sanction (indefinite suspension) be imposed against Kourtesis in this State. In response, Kourtesis urged us to refer the matter to a judge of the Circuit Court for Montgomery County (where Respondent maintains an office for the practice of law) for an evidentiary hearing prior to acting on the request by Bar Counsel for his indefinite suspension. We hold that a separate hearing to determine his fitness to practice law in this State is inappropriate at present. Rather, we order that Kourtesis be placed on inactive status, the most analogous remedy in this State, until further order by this Court.
I. UNDISPUTED FACTS
A. Proceedings in the District of Columbia
On 25 May and 12 July 2012, counsel for the Board on Professional Responsibility filed “Specifications of Charges” against Kourtesis in the District of Columbia based on allegations arising from his representation of certain clients in personal injury matters.1 On 7 August 2012, Kourtesis filed his Answеr. Prior to a merits adjudication of these charges, Kourtesis petitioned in December of 2012 for his suspension and the abeyance of the pending disciplinary charges due to his disability, pursuant to a special procedure in the District of Columbia.
If, in the course of a disciplinary proceeding, the attorney claims to be suffering from a disability because of mental or physical illness or infirmity, or because of addiction to drugs or intoxicants, which makes it impossible for the attorney to present an adequate defense,
the Court shall enter an order immediately suspending the attorney from the practice of law until a determinаtion is made of the attorney‘s capacity to practice law in a proceeding under subsection (c) of this section.
As grounds for his motion, Kourtesis asserted that he suffered from depression, making it impossible (indefinitely) to defend himself in the disciplinary matters or to assist his counsel in the defense against the charges. Pursuant to
On 31 December 2012, the Board on Professional Responsibility, acting through its Chair and under
Bar Counsel‘s response asserts that it “lacks knowledge” of how [Kourtesis]‘s alleged disability affects his ability to defend himself, but it “admits that [Kourtesis] has provided medical support for this claim.” Bar Counsel also
notes that [Kourtesis]‘s counsel has confirmed that [Kourtesis] appears not to be able to assist counsel with his defense of these disciplinary matters.
Upon consideration of the Board on Professional Responsibility‘s petition, the District of Columbia Court of Appeals ordered, on 14 February 2013:
[Kourtesis] is indefinitely suspended from the practice оf law in the District of Columbia, effective immediately, and that any pending matters be held in abeyance pursuant to
D.C. Bar Rule XI, § 13(e) until further order of the court pursuant toD.C. Bar Rule XI, § 13(c) .
The Order provided further that his “reinstatement to the District of Columbia Bar shall be in accordance with the provisions of
Reinstatement of Incapacitated Attorney. An attorney suspended under this section may apply for reinstatement once a year, or at such shorter intervals as the Court may direct in its order of suspension or any modification thereof. Upon the filing of such application, the Court may take or direct such action as it deems appropriate, including the examination of the attorney by such qualified medical experts as the Court shall designate. In its discretion, the Court may direct that the expense of such an examination shall be paid by the attorney, and that evidence be presented establishing proof of the attorney‘s competence and learning in the law, which may include certification by the bar examiners of the attorney‘s successful completion of an examination for admission to practice. An application for reinstatement under this subsection shall be granted by the Court upon a showing by the attorney, by clear and convincing evidence, that the disability has ended and that the attorney is fit to resume the practice of law.
At the 5 December 2013 show cause hearing in the reciprocal proceedings initiated in Maryland, Kourtesis‘s counsel reported that Kourtesis had not filed for reinstatement in the District of Columbia, but planned оn seeking reinstatement at some non-specific time in the future.
B. Reciprocal Proceedings in Maryland
On 10 March 2013, the Attorney Grievance Commission of Maryland (“Bar Counsel“) filed, pursuant to
In his Verified Response to Show Cause Order, Kourtesis argued that no reciprocal action should be imposed upon him in Maryland because exceptional circumstances exist under
(e) Exceptional circumstances. Reciprocal discipline shall not be ordered if
Bar Counsel or the attorney demonstrates by clear and convincing evidence that: . . .
(3) the imposition of corresponding discipline would result in grave injustice [or]
. . .
(5) the reason for inactive status no longer exists.
Kourtesis argues first that the circumstances which led to his submitting voluntarily to indefinite suspension of his license to practice in the District of Columbia “were all related to a perfect storm of emotional issues in which he was ensnared.”6
According to Kourtesis‘s counsel at oral argument, the perfect storm has passed now and, thus, the reason for his suspension no longer exists. Because the exceptional circumstances exception of
On 5 December 2013, this Court held a hearing to consider the petition, show cause responses, and argument of counsel.
II. DISCUSSION
A. Deference to the Factual Findings or Adjudications of the Originating Jurisdiction.
In “reciprocal” attorney grievance cases, this Court gives deference generally to the factual findings or adjudications of the originating jurisdiction pursuant to
Conclusive effect of adjudication. Except as provided in subsections (e)(1) and (e)(2) of this Rule, a final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional misconduct or is incapacitated
is conclusive evidence of that misconduct or incapacity in any proceeding under this Chapter. The introduction of such evidence does not preclude the Commission or Bar Counsel from introducing additional evidence or preclude the attorney from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed.
See also Attorney Grievance Comm‘n v. Whitehead, 390 Md. 663, 668-69, 890 A.2d 751, 754 (2006) (citing Attorney Grievance Comm‘n v. Weiss, 389 Md. 531, 886 A.2d 606 (2005); Attorney Grievance Comm‘n v. Scroggs, 387 Md. 238, 249, 874 A.2d 985, 992 (2005); Attorney Grievance Comm‘n v. Ayres-Fountain, 379 Md. 44, 56, 838 A.2d 1238, 1245 (2003); Attorney Grievance Comm‘n v. Cafferty, 376 Md. 700, 703, 831 A.2d 1042, 1045-46 (2003)). “In that regard, this Court‘s cases are clear, pursuant to
In the present case, although the District of Columbia Court of Appeals has not adjudicated finally the disciplinary charges against Kourtesis, the court reached an interlocutory adjudication that Kourtesis is indefinitely incapacitated, i.e., unfit “to practice law because of mental infirmity or illness,” see
B. Determining the Appropriate Reciprocal Sanction or Remedy.
In determining the appropriate sanction or remedy in reciprocal cases, this Court has “a duty to ‘assess for itself the propriety of the sanction imposed by the other jurisdiction.‘” Whitehead, 390 Md. at 672, 890 A.2d at 756 (citing Attorney Grievance Comm‘n v. Steinberg, 385 Md. 696, 704 n. 9, 870 A.2d 603, 608 n. 9 (2005); Ayres-Fountain, 379 Md. at 57, 838 A.2d 1238, 1246 (2003)). “[W]e are prone, but not required, to impose the same sanction the original jurisdiction imposed.” Id. at 671, 890 A.2d at 756 (citing Weiss, 389 Md. at 546, 886 A.2d at 615). Thus, when considering the appropriate sanction or remedy in a reciprocal attorney grievance case, “‘we look not only to the sanction imposed by the other jurisdiction but to our own cases as well.‘” Id. at 672, 890 A.2d at 756 (emphasis added in Whitehead) (quoting Weiss, 389 Md. at 548, 886 A.2d at 616). Although we will reach often the same conclusion as the original jurisdiction and impose an identical sanction or remedy, see id. at 672-73, 890 A.2d at 757 (citing Willcher, 340 Md. at 220, 665 A.2d at 1060; Attorney Grievance Comm‘n v. Roberson, 373 Md. 328, 357, 818 A.2d 1059, 1077 (2003); Cafferty, 376 Md. at 728, 831 A.2d at 1059; Attorney
Grievance Comm‘n v. Moore, 301 Md. 169, 171, 482 A.2d 497, 498 (1984)), “[w]hen our cases . . . clearly demonstrate that we would apply a different sanction—had the conduct occurred or the case originated here—we need not follow the original jurisdiction‘s determination.” Id. at 673, 890 A.2d at 757. The appropriate sanction “‘will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct [or incapacity].‘” Id. at 672, 890 A.2d at 756 (emphasis added in Whitehead) (quoting Weiss, 389 Md. at 548, 886 A.2d at 616).
The rationale underlying our duty to assess the appropriate sanction or remedy for ourselves is that, “[e]ven though attorney discipline is for the primary purpose of protecting the public, [not the punishment of the attorney,] the bar and public policy are served best by determinations consistent with other Maryland sanctions for similar misconduct.” Id. at 674, 890 A.2d at 757. We recognize that “‘the public interest is served when this Court imposes a sanction [or remedy] which demonstrates to members of the legal profession the type of conduct that will not be tolerated. . . .‘” Id. at 674, 890 A.2d at 758 (quoting Attorney Grievance Comm‘n v. Sperling, 380 Md. 180, 191, 844 A.2d 397, 404 (2004)). Moreover, in imposing sanctions and remedies consistent with other Maryland determinations, 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 [the profession‘s] image into disrepute.‘” Id. (quoting Sperling, 380 Md. at 191, 844 A.2d at 404).
As we explained further in Whitehead:
[T]he public interest is served when sanctions designed to effect general and specific deterrenсe are imposed on an attorney who violates the disciplinary rules. . . . This goal of effecting general and specific deterrence is best achieved by ensuring that every member of the bar clearly understands the standards of conduct to which he or she is expected to adhere and the consequences of failing to meet those standards. One of our goals, in maintaining these standards is to ensure that consistent determinations as to sanctions for similar misconduct are reached in our cases. Whether the case arises in this jurisdiction, or it comes to us as a “reciprocal” discipline case, does not changе this Court‘s duty to apply consistent treatment, i.e., sanctions [and remedies]—as far as is possible.
Our position on sanctions [and remedies] in “reciprocal” cases has to do with ensuring consistency, which in turn provides the appropriate deterrent for incompetent, unscrupulous or unethical lawyers. Nor do we abandon well reasoned principles of comity in reaching our decision. As required by
Rule 16-773(g) , the heaviest weight is given to our sister jurisdictions’ factual findings. From them we rarely stray. We deviate from their sanctions, however, when the history of our cases warrants a substantially different disposition. . . .
Id. at 674-75, 890 A.2d at 758 (emphasis added in Whitehead). With the foregoing in mind, we turn now to determine what sanction or remedy is imposed typically in Maryland for an attorney pleading incapacity due to mental illness and seeking an abeyance or stay of the adjudication of pending disciplinary charges.
A second path to finding an attorney incapacitated in this State is provided by
Lastly,
Similarly, in Attorney Grievance Comm‘n v. Draper, 307 Md. 435, 514 A.2d 1212 (1986),9 we, agreeing with the hearing judge‘s conclusion that the attorney was incompetent, were confronted with “decid[ing] how to dispose of this matter in order to protect the public.” Id. at 440, 514 A.2d at 1215. The Court began by repeating the well-established principle that “[t]he purpose of a disciplinary proceeding is to protect the public, rather than to punish the errant attorney.” Id. at 441, 514 A.2d at 1215 (citing Attorney Grievance Comm‘n v. Kahn, 290 Md. 654, 431 A.2d 1336 (1981)). The Court concluded: “When an attorney is incapacitated to the extent she is unable to engage in the practice of law, it is appropriate to place her on inactive status.” Id. (citing Attorney Grievance Comm‘n v. Demyan, 299 Md. 652, 474 A.2d 1342 (1984); Attorney Grievance Comm‘n v. Harrison, 292 Md. 81, 437 A.2d 228 (1981)). The Court reasoned that inactive status is the most appropriate sanction because thаt “action
Assuming that an attorney is incapacitated, we determine which “remedy” is appropriate. In this regard, a significant difference exists between our regulatory scheme and the procedures in the District of Columbia. The Maryland Rules differentiate between “remedies” appropriate for “incapacity” and “sanctions or remedies” appropriate for “professional misconduct” as follows:
(a) Professional Misconduct. One or more of the following sanctions or remedies may be imposed upon an attorney for professional misconduct:
(1) disbarment by the Court of Appeals;
(2) suspension by the Court of Appeals;
(3) reprimand by the Court of Appeals or, with the attorney‘s consent, by the Commission;
(4) conditional diversion in accordance with a Conditional Diversion Agreement entered into pursuant to
Rule 16-736 ; and(5) termination of a disciplinary or remedial proceeding accompanied by a wаrning pursuant to
Rule 16-735(b) .(b) Incapacity. One or more of the following remedies may be imposed upon an attorney for incapacity:
(1) placement on inactive status, subject to further order of the Court, or
(2) conditional diversion in accordance with a Conditional Diversion Agreement entered pursuant to
Rule 16-736 .(c) Conditions. An order, decision, or agreement that imposes a disciplinary sanction upon an attorney or places an attorney on inactive status may include one or more specified conditions, as authorized by
Rules 16-736 ,16-760 , and16-781 .
Thus, the Maryland Rules reserve the sanction of indefinite suspension for attorney misconduct. Accordingly, we impose “indefinite suspension” upon an incapacitated attorney typically only when the attorney is adjudicated also of misconduct warranting such a sanction.10 In the present case, because there has been no final adjudication finding misconduct by Kourtesis in the District of Columbia, an “indefinite suspension” sanction in Maryland is not appropriate. Rather,
We acknowledge the imposition of “inactive status” upon Kourtesis differs from the District of Columbia‘s imposition of “indefinite suspension“; however, we point out that the difference is largely in name alone. The District of Columbia has no remedy equivalent to our “inactive status,” but rather deploys “indefinite suspension” as both a sanction and a remedy. Because Maryland differentiates between sanctions and remedies, we conclude that this State‘s “indefinite suspension” sanction, and its concomitant condemning connotation, is inappropriate here; instead, plаcement on inactive status is commensurate with our treatment of past cases involving incompetency where no final adjudication on the merits of the underlying misconduct charges has taken place as yet.12
Before imposing the most analogous remedy (inactive status) on Kourtesis, however, we must determine whether any reciprocal remedy is appropriate in this case. Kourtesis urges this Court to send the matter to a judge of the Circuit Court for Montgomery County for a hearing on his fitness to practice law in Maryland because reciprocal discipline should not be ordered in this case due to exceptional сircumstances under
First, Kourtesis alleges that the reason for his indefinite suspension in the District of Columbia no longer exists and, thus, pursuant to
To conclude otherwise would convert Maryland into an asylum for attorneys wishing to flee from pending disciplinary matters in other jurisdictions. Allowing an аttorney, who petitioned in a sister jurisdiction for disciplinary proceedings to be held in abeyance due to self-professed incompetency, to seek safe haven in our State by demonstrating regained competency and permitting him or her to continue to practice here, while continuing to
We dismiss additionally Kourtesis‘s claimed “exceptional circumstances” of “grave injustice.” See
In conclusion, we hold that the appropriate reciprocal remedy in Maryland for Kourtesis is, at present, inactive status until further order by this Court.14
Notes
I, Nikolaos Kourtesis, hereby acknowledge that during the period of March, 2010—Present, I suffered from a disability (or addiction) by reason of depression. In this disciplinary proceeding against me, I am contending that the alleged violations of the Code of Professional Responsibility would not have occurred but for such disability (or addiction), and I am requesting mitigation of sanctions based on such disаbility (or addiction). I understand, and hereby stipulate, that this acknowledgement may be used by the Board on Professional Responsibility, if appropriate under the provisions and limitations of Board rule 11.12, in seeking from the District of Columbia Court of Appeals an order imposing probationary conditions or suspensions from the practice of law pursuant to Section 13(e) of Rule XI of the Rules Governing the Bar.
If the Board has reason to believe that an attorney is incapacitated from continuing to practice law because of mental infirmity or illness or because of addiction to drugs or intoxicants, the Board may petition the Cоurt to determine whether the attorney is so incapacitated. Upon the filing of the Board‘s petition, the Court may take or direct such action as it deems appropriate, including the examination of the attorney by such qualified medical expert or experts as it shall designate. If the Court concludes that the attorney is incapacitated from continuing to practice law, it shall enter an order suspending the attorney on the ground of such disability for an indefinite period, effective immediately and until further order of the Court, and any pending disciplinary proceeding against the attorney shall be held in abeyance.