ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Rоnald Marc LEVIN
Misc. Docket AG No. 75, Sept. Term, 2012
Court of Appeals of Maryland
May 16, 2014
91 A.3d 1101
ADKINS, J.
Ronald Marc Levin, for Respondent.
Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, MCDONALD and WATTS, JJ.
ADKINS, J.
Petitioner, the Attorney Grievance Commission of Maryland (“AGC“), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition“) against Respondent, Ronald Marc Levin. Bar Counsel alleged that Levin, in connection with his employment at the law firm of Joseph, Greenwald & Laake, P.A. (“JGL“) from December 2010 through November 2011, engaged in professional misconduct as defined by
Rule 8.4 Misconduct.
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce аnother to do so, or do so through the acts of another;
(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[.]
Following a hearing before the Circuit Court for Montgomery County, the hearing judge found that Levin violated Rule
THE HEARING JUDGE‘S CONCLUSIONS
The disciplinary hearing was held before a judge of the Circuit Court for Montgomery County. Both parties appeared and presented evidence. The hearing judge made the following findings of fact based upon clear and convincing evidence:
The following facts are not in dispute. Respondent Levin became a member of the Maryland Bar on June 17, 1992. The Respondent practices exclusively bankruptcy law, and appears in bankruptcy courts in both Maryland and the District of Columbia. On November 1, 2010, Respondent signed an Employment Agreement with JGL. According to the terms of the Agreement, Respondent‘s employment with JGL would commence on December 1, 2010 and continue for a period of one year. The Agreement also indicated that Respondent‘s salary would be 50% of his net originated income (“NOI“). During the hearing on April 25, 2012, David Bulitt, Esquire, a shareholder and Assistant Managing Director with JGL, testified that NOI is defined as the attorney‘s gross fee income from all cases and clients originated by that attorney minus certain charges (costs and other attorneys working on the cases). Respondent‘s initial salary could not be determined in advance, so his initial salary was set at $200,000. This salary would be reviewed on a quarterly basis by the firm‘s Director of Finance and the firm‘s Executive Committee, per the terms of the Agreement, and adjustments could be made based on actual performance.
The Respondent worked for JGL from December 2010 to October 2011, and during the course of Respondent‘s employment, Respondent made false statements to Mr. Bulitt with respect to the number of cаses he was handling, the number of legitimate bills he had sent, and his expectation of payment. Mr. Bulitt, who has been a personal acquaintance of the Respondent since childhood days, conducted the
In October 2011, the Resрondent received a job offer from another law firm and notified JGL of his intention to resign. The [R]espondent left his employment with JGL in October 2011. Based on a final review conducted by Mr. Bulitt of the Respondent‘s work performance, a significant deficiency was discovered between Respondent‘s initial salary and his actual earnings for the firm. It was determined that the Respondent owed the firm $151,191.17 based on the deficiencies in his client billings. The Respondent did not contest the deficiency and paid this debt in full to JGL on December 29, 2011.
Mr. Bulitt testified that, had the Respondent been candid with him about his actual work performance and client billings, the firm would have reduced the Respondent‘s $200,000 salary accоrdingly. This Court accepts that statement as true because, if salary adjustments were not going to be made, Mr. Bulitt would not have met with the Respondent until the end of the year. Furthermore, the Respondent feared a decrease in his pay and went to great lengths in order to deceive the firm.
The Respondent concedes [that] he has violated sections (a) and (c) of
Conclusions of Law
To be clear and convincing, evidence should be “clear” in the sense that it is certain, plain to the understanding, and unambiguous and convincing in a sense that it is so reasonable and persuasive as to cause you to believe it. This burden of proof requires more than a preponderance of the evidence, but less than beyond a reasonable doubt.
Here, the Petitioner is seeking to prove that Respondent committed four acts of misconduct under Rule 8.4. The
Rule 8.4(a) is a catch-all provision that is violated when any other Rule of Professional Conduct is violated. The Respondent concedes his violation of Rule 8.4(a) due to his violation of Rule 8.4(c). Because the factual circumstances and case law presented by the parties support the Respondent‘s violation of section (c), the Court finds by clear and convincing evidence that the Respondent also violated Rule 8.4(a).
Rule 8.4(b) provides that misconduct exists where an attorney commits a “criminal act” affecting the attorney‘s honesty, trustworthiness or fitness as an attorney “in other respects.” For purposes of section (b), an actual conviction is unnecessary to demonstrate that the Respondent‘s [sic] committed misconduct.
The Petitioner identifies the “criminal act” committed under these circumstances as Unauthorized Control Over Property—By Deception,
(b) A person may not obtain control over property by willfully or knowingly using deception, if the person:
(1) intends to deprive the owner of the property;
(2) willfully or knowingly uses, conceals, or abandons the property in a mаnner that deprives the owner of the property; or
(3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property.
The Petitioner argues that the Respondent deprived the firm of its property (money) by creating false clients and client billings. It further contends that as a direct consequence of the Respondent‘s fraudulent conduct and misrepresentations, JGL continued to pay the Respondent a salary
The Respondent counters that, as “deprive” is defined under
The Court finds that the Petitioner has not proven by clear and convincing evidence that the Respondent violated Rule 8.4(b). The evidence presented by the Petitioner demonstrates that the Respondent intended to misrepresent his client billings in order to maintain his initial salary. However, the Petitioner failed to prove that the Respondent intended to deprive the firm of its property permanently or for a period of time sufficient to dispose of a part of its value. The Respondent‘s acts did not rise to the level of a criminal act. The Respondent‘s prompt repayment of his entire debt is a mitigating factor only and does not disprove intent to commit a criminal act. Nevertheless, the Petitioner did not meet its burden of proof.
Rule 8.4(c) states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The Respondent concedes that he violated section (c) and admits that he made untrue statements to Mr. Bulitt and other JGL officials about his caseload and client billing; though he denies that they rise to the level of fraud. The Respondent admitted that he knew that he would have to “pay the piper” at some point in time. The Court finds that the factual circumstances and case law presented by the Petitioner support the conclusion that the Respondent violated Rule 8.4(c).
The Petitioner argues lastly that, pursuant to Rule 8.4(d), the Respondent engaged in conduct that was “prejudicial to the administration of justice.” The Respondent argues that
This Court is vested with the responsibility to examine every attorney grievance on its own merits, taking into account its unique factual circumstances. Thus, the Court must evaluate any aggravating and mitigating factors presents [sic] in this case.
The Court first analyzes any mitigating factors present in this case. Mitigating factors in attorney grievance cases can include:
[A]bsence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make rеstitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.
The Court finds by clear and convincing evidence that the following mitigating factors exist: the Respondent‘s recognition of the wrongfulness of his actions, his full payment of the financial debt to the firm within two months, and his self-reported misrepresentations and falsified billings to the Maryland Bar.
However, the Court must also weigh these circumstances against the aggravating factors identified in Attorney Grievance Comm‘n v. Bleecker, 414 Md. 147, 994 A.2d 928 (2010), and located at Standard 9.22 of the American Bar Association Standard for Imposing Lawyer Sanctions. The parties dispute four of these factors specifically: the Respondent‘s (b) dishonest or selfish motive, (c) a pattern of misconduct, (d) multiple offenses, and (i) substantial experience in the practice of law. Based upon the factual circumstances of this case, this Court agrees with both parties that the other aggravating factors of Standard 9.22 are inapplicable here.
As to (b), the Court acknowledges that the Rеspondent‘s motivation was not due to a purely selfish desire to gain money from JGL. The Respondent was supporting his wife and three children, two of whom were in college. As a consequence of this and other personal financial problems, the Respondent chose to proactively mislead his employer into believing that he was performing at an acceptable level of productivity. This was not a matter of willful ignorance or even passive recognition: the Respondent affirmatively made statements and drafted documents attesting to falsified information in order to misrepresent his performance to JGL.
Furthermore, the Respondent‘s defense of “embarrassment” and fear for his reputation within the firm provides little defense. The Respondent‘s conduct and statements were dishonest and selfish, and thus the Court finds that (b)
The Respondent‘s behavior was also systemic because the Respondent made misrepresentations to Mr. Bulitt at each quarterly review and on other occasions, too. He also provided false client billings in aid of these oral statements. The Court thus incorporates (c) and (d) together as factors contributing to its conclusion that the Respondent engaged in a continuous pattern of misconduct during his employment for JGL.
The Respondent had nearly twenty years of experience in bankruptcy law. Furthermore, the Respondent engaged in private practice within a firm setting for this same period of time, and should have had a thorough understanding that his conduct was unacceptable. Therefore, the Court finds that aggravating factor (i) exists.
Wherefore, this Court concludes this 10th day of June, 2013, that the Petitioner met its burden of proof and proved by clear and convincing evidence that the Respondent violated Rule 8.4(a) and (c), but failed to meet its burden of proof and did not prove that the Respondent violated Rule 8.4(b) and (d). Therefore, the Circuit Court recommends that violations under (a) and (c) be upheld, and that violations under (b) and (d) be dismissed by the Court of Appeals, but [sic].
(Citations omitted).
DISCUSSION
Our task in attorney discipline proceedings is well established:
“In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Att‘y Grievance Comm‘n v. Bleecker, 414 Md. 147, 167, 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing judge‘s findings of fact unless we determine that they are clearly erroneous.” Att‘y Grievance Comm‘n v. Edib, 415 Md. 696, 706, 4 A.3d 957, 964
(2010) (quoting Att‘y Grievance Comm‘n v. Guida, 391 Md. 33, 50, 891 A.2d 1085, 1095 (2006)). That deference is appropriate because the hearing judge is in a position to assess the demeanor-based credibility of the witnesses. Id. at 707, 4 A.3d at 964. In that regard, “[t]he hearing judge is permitted to ‘pick and choose which evidence to rely upon’ from a conflicting array when determining findings of faсt.” Guida, 391 Md. at 50, 891 A.2d at 1095 (quoting Att‘y Grievance Comm‘n v. Fezell, 361 Md. 234, 253, 760 A.2d 1108, 1118 (2000)). We review de novo the hearing judge‘s proposed conclusions of law. Att‘y Grievance Comm‘n v. Ugwuonye, 405 Md. 351, 368, 952 A.2d 226, 236 (2008). In other words, “the ultimate determination ... as to an attorney‘s alleged misconduct is reserved for this Court.” Att‘y Grievance Comm‘n v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 764 (2002) (quoting Att‘y Grievance Comm‘n v. Thompson, 367 Md. 315, 322, 786 A.2d 763, 768 (2001) (alteration in original)). In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge‘s legal conclusions, by a “clear and convincing” standard of proof. Att‘y Grievance Comm‘n v. Siskind, 401 Md. 41, 54, 930 A.2d 328, 335 (2007).
Att‘y Grievance Comm‘n v. Tanko, 427 Md. 15, 27-28, 45 A.3d 281, 288 (2012) (citations omitted).
EXCEPTIONS
The AGC submitted exceptions to the hearing judge‘s failure to find that Levin violated Rules 8.4(b) and 8.4(d). Respondent did not file any exceptions to the trial court‘s findings of fact or conclusions of law.
Concerning Rule 8.4(b), Petitioner argues that the hearing court erred by failing to conclude that “the Respondent intended to deprive the firm of its property permanently or for a period of time sufficient to dispose a part of its value.” Petitioner contends that Respondent deprived his employer of its property through deception, thereby violating Md.Code
(1) permanently; (2) for a period that results in the appropriation of a part of the property‘s value; (3) with the purpose to restore it only on payment of a reward or other compensation; or (4) to dispose of the property or use or deal with the property in a manner that makes it unlikely that the owner will recover it.
Because Respondent repaid his employer from a home equity line of credit, Petitioner argues, Respondent no longer possessed the unearned compensation, and thus had appropriated this property, satisfying the intent element under
Respondent counters that he never had the intent to deprive JGL of the funds, as he always knew he would have to repay JGL and always intended to do so. Moreover, Respondent claims that he misrepresented his client billings in order to avoid embarrassment at the firm, not to maintain his unwarranted salary. Thus, Respondent urges us to affirm the hearing court‘s conclusion that Petitioner failed to meet its burden in proving 8.4(b).
In declining to hold that Respondent violated
The Court finds that the Petitioner has not proven by clear and convincing evidence that the Respondent violated Rule 8.4(b). The evidence presented by the Petitioner demonstrates that the Respondent intended to misrepresent his client billings in order to maintain his initial salary. However, the Petitioner failed to prove that the Respondent intended to deprive the firm of its property permanently or for a period of time sufficient to dispose of a part of its value. The Respondent‘s acts did not rise to the level of a criminal act. The Respondent‘s prompt repayment of his entire debt is a mitigating factor only and does not disprove intent to commit a criminal act. Nevertheless, the Petitioner did not meet its burden of proof.
But the hearing judge never specifically explained why, in its view, Petitioner failed to meet its burden of proof. In our view, after evaluating Respondent‘s conduct against each element of the statute, the record is clear that Respondent violated
First, the hearing court found that Respondent misrepresented his caseload and expected fees, creating fictitious clients and paperwork to support these misrepresentations. Additionally, the court found that JGL would have reduced Respondent‘s salary to its warranted level had Respondent been candid and not misrepresented his billings. Thus, Respondent obtained control over the unwarranted salary through the willful use of deception.
Second, Respondent repaid JGL with funds from a home equity line of credit.2 In other words, when Respondent paid back JGL, he did not remit the unearned compensation that he obtained from JGL, but instead transmitted different funds from a separate source. Although there is not specific evi-
The remaining question is whether Respondent intended to so deprive his employer of its property. Based on our reading of the hearing court‘s conclusions of law, its failure to find a violation of
We find that principle to be instructive here. In our view, the numerous findings set forth by the hearing court compel the conclusion that Respondent intended to deprive JGL of the money constituting the unearned portion of his salary for a period sufficient to appropriate a part of its value.4 As the
That Respondent has not been convicted of a crime under
Concerning Rule 8.4(d), Petitioner argues that the hearing court erred in failing to find that Respondent‘s conduct did not ” ‘seriously imрair public confidence’ in the legal profession and ‘was essentially private in nature, consisting of false representations to his employer.‘” “An attorney engages in conduct prejudicial to the administration of justice when he or she engages in conduct which erodes public confidence in the legal profession.” Att‘y Grievance Comm‘n v. Carithers, 421 Md. 28, 56, 25 A.3d 181, 198 (2011) (citing Att‘y Grievance Comm‘n v. Clark, 363 Md. 169, 183, 767 A.2d 865, 873 (2001)). “Dishonest conduct by an attorney also may be prejudicial to the administration of justice.” Att‘y Grievance Comm‘n v. Rand, 411 Md. 83, 96, 981 A.2d 1234, 1242 (2009). Conduct that is not directly related to the practice of law is not often prejudicial to the administration of justice, but can be if it is criminal or sufficiently egregious. See Att‘y Grievance Comm‘n v. Coppock, 432 Md. 629, 647, 69 A.3d 1092, 1102
Respondent was supporting his wife and three children, two of whom were in collegе. As a consequence of this and other personal financial problems, the Respondent chose to proactively mislead his employer into believing that he was performing at an acceptable level of productivity.
Because we hold that Respondent violated the criminal law by means of deception, thereby violating Rule 8.4(b), we also hold that Respondent has necessarily violated Rule 8.4(d). See Att‘y Grievance Comm‘n v. Kapoor, 391 Md. 505, 532, 894 A.2d 502, 518 (2006) (“Because [the offending attorney‘s] conduct was dishonest, deceitful, and criminal, it was prejudicial to the administration of justice and, also, in violation of Rule 8.4(d).“). Public knowledge that an attorney deceived his own colleagues through dishonest criminal conduct in order to in maintain an unwarranted salary reinforces the most damaging cynicisms concerning lawyers’ honesty, avarice, and candor. Accordingly, we sustain Petitioner‘s exception to the hearing court‘s failure to find a violation of Rule 8.4(d).
SANCTION
“When imposing disciplinary sanctions for violations of the Maryland Rules of Professional Conduct, it is this Court‘s purpose to protect the public, promote general and specific deterrence, and maintain the integrity of the legal profession.” Att‘y Grievance Comm‘n v. Roberts, 394 Md. 137, 165, 904 A.2d 557, 574 (2006) (citing Att‘y Grievance Comm‘n v. Cherry-Mahoi, 388 Md. 124, 160, 879 A.2d 58, 80 (2005)). The appropriate sanction depends on the facts and circumstances of the case before us, including our assessment of aggravating and mitigating factors promulgated by the American Bar Association.5 See Coppock, 432 Md. at 648, 69 A.3d at 1103.
Respondent counters that a public reprimand is appropriate here, not disbarment. He contends that he lacked the intent to deprive JGL of his unearned salary, always knew that he would have to repay the unearned salary, and did repay that salary within months of leaving the firm. Respondent characterizes his misconduct as private in nature, and highlights his twenty-one years of practice without a previous attorney grievance complaint. Monetary gain, Respondent states, was not the real motivation for his misrepresentations and deceit; rather, embarrassment and humiliation over his slow business pushed him to this misconduct.
The hearing court found that “the Respondent‘s recognition of the wrongfulness of his actions, his payment of the financial debt to the firm within two months, and his self-reported misrepresentations and falsified billings to the Maryland Bar” were mitigating factors. See supra. While we accept the first two factors as supported by the evidence, we question the significance of Respondent‘s self-reporting. Respondent did not contact the AGC until after JGL indicated that thеy would be reporting him to the AGC and he retained counsel.
The hearing court also found several aggravating factors, including the Respondent‘s dishonest or selfish motive, pattern of misconduct, multiple offenses, and substantial experience in
When attorneys engage in dishonest and deceitful conduct for personal gain, this Court does not hesitate to sanction such conduct with disbarment:
[W]e have held that disbarment follows as a matter of course “when a member of the bar is shown to be willfully dishonest for personal gain by means of fraud, deceit, cheating or like conduct, absent the most compelling extenuating circumstances...” Agnew, 271 Md. at 553-54, 318 A.2d at 817. To do otherwise, we concluded, “would constitute a travesty of our responsibility.” Id. And, because “[c]andor and truthfulness are two of the most important moral character traits of a lawyer,” [Att‘y Grievance Comm‘n v. Myers, 333 Md. 440, 449, 635 A.2d 1315, 1319 (1994)] deliberate and systematic conduct amounting at least to “fraud or deceit” has resulted in the imposition of the ultimate sanction of disbarment.
Guberman, 392 Md. at 137-38, 896 A.2d at 340-41 (footnote and citations omitted). See also Att‘y Grievance Comm‘n v. Spery, 371 Md. 560, 567, 810 A.2d 487, 491 (2002) (holding that disbarment was the appropriate sanction for an attorney who “converted partnership money to his own use without authorization and without disclosure to [his] other partners.“).
We explained the rationale behind this aggressive disciplinary posture in Att‘y Grievance Commission v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001), stating that:
Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, present in an attorney‘s character.
In this case, honesty was not present in Levin‘s character. Respondent systematically engaged in a pattern of dishonest conduct. His misrepresentations stretched over several months, extending from communications with a colleague and
Notes
(b) Unauthorized control over property—By deception.—A person may not obtain control over property by willfully or knowingly using deception, if the person:
(1) intends to deprive the owner of the property;
(2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or
(3) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property.
THE COURT: Now you paid the $151,000 back at the end of 2011?
[RESPONDENT]: Yes sir.
THE COURT: Where‘d you get the money?
[RESPONDENT]: My home equity line.
THE COURT: So you took out more debt?
[RESPONDENT]: Yes sir.
- [T]he Respondent feared a decrease in his pay and went to greаt lengths in order to deceive the firm.
- The Court finds that the Respondent‘s motivations for his misrepresentations to JGL were his need to support himself and his family, and to avoid embarrassment.... The Respondent was fully aware of the wrongfulness of his acts and specifically intended to conceal such conduct. The Respondent did not elect to self-report his deficient performance to the firm prior to his departure from JGL and JGL‘s detection of his deceptive practices.
- [T]he Court acknowledges that the Respondent‘s motivation was not due to a purely selfish desire to gain money from JGL. The
(a) prior disciplinary offenses; (b) dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple offenses; (e) bad faith obstruction of the disciplinary proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (f) submission of false evidence, false statements, or other deceptive practices during the disciplinary process; (g) refusal to acknowledge wrongful nature of conduct; (h) vulnerability of victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; (k) illegal conduct, including that involving the use of controlled substances.
American Bаr Association, Standards for Imposing Lawyer Sanctions, § 9.22, Compendium of Professional Responsibility Rules and Standards (2012).
Mitigating factors include:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith efforts to make restitution or to rectify consequences of misconduct; (e) full and free disclosure to disciplinary board or cooperative attitude toward proceedings; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) mental disability or chemical dependency including alcoholism or drug abuse when: (1) there is medical evidence that the respondent is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the respondent‘s recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of that misconduct is unlikely; (j) delay in disciplinary proceedings; (k) imposition of other penalties or sanctions; (l) remorse; (m) remoteness of prior offenses.
American Bar Association, Standards for Imposing Lawyer Sanctions, § 9.32, Compendium of Professional Responsibility Rules and Standards (2012).