Lead Opinion
The Attorney Grievance Commission of Maryland filed a petition with this Court for disciplinary action against Richard J. Reinhardt, alleging violations of the Maryland Rules of Professional Conduct.
I.
“The Petitioner has charged Respondent with violating the following rules of Maryland Rules of Professional Conduct.
Rule 1.1. Competence.
A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.
Rule 1.2. Scope of Representation.
(a) A lawyer shall abide by a client’s decisions concerning the objectives of representation, subject to paragraphs (c), (d) and (e), and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client’s decision whether to accept an offer of settlement of a matter. In a criminal case, the lawyer shall abide by the client’s decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify.
(b) A lawyer’s representation of a client, including representation by appointment does not constitute an endorsement of the client’s political, economic, social or moral views or activities.
(c) A lawyer may limit the objectives of the representation if the client consents after consultation.
(d) A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith*214 effort to determine the validity, scope, meaning or application of the law.
(e) When a lawyer knows that a client expects assistance not permitted by the rules of professional conduct or other law, the lawyer shall consult with the client regarding the relevant limitations on the lawyer’s conduct.
Rule 1.3. Diligence.
A lawyer shall act with reasonable diligence and promptness in representing a client.
Rule 1.4. Communication.
(a) A lawyer shall keep a client reasonably informed about the status of a matter and promptly comply with reasonable requests for information.
(b) A lawyer shall explain a matter to the extent reasonably necessary to permit the client to make informed decisions regarding the representation.
Rule 3.2. Expediting Litigation.
A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.
Rule 8.4. Misconduct.
It is professional misconduct for a lawyer to: ...
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice; ...
“The parties entered into a Stipulation (Joint Exhibit 1) in which most of the allegations of Petitioner’s Complaint have been admitted.
“All the Petitioner’s charges against the Respondent arise out of the Respondent’s handling of a personal injury claim of his client, Ms. Bernice Cohen, who was involved in an automobile accident on August 2, 1996. The evidence was undisputed that Ms. Cohen was injured in a multi-vehicle
“It is further undisputed that on or about July 30, 1999, the Respondent filed a lawsuit in the Circuit Court for Baltimore County on behalf of Ms. Cohen where he named five Defendants including a corporate entity. It is further undisputed that on or about July 30, 1999, the Circuit Court for Baltimore County did issue summons to the Defendants named in the action. It is further undisputed and admitted by the Respondent that he failed to serve said Defendants and failed to take any further action on Ms. Cohen’s claim. The Respondent further admits that Ms. Cohen wrote to him on January 14, 2000, requesting a status on her case. The Respondent admitted that he did not respond to this letter and in fact lost the file. According to the testimony, he placed the file in a briefcase and later put that briefcase in a closet, obtained a new briefcase, and did not realize that he had left the file in the old briefcase. It is further admitted by the Respondent that on or about February 20, 2001, Ms. Cohen wrote to the Respondent again requesting information about the status of the case and the Respondent admits to not responding to her letter.
“Furthermore, in reviewing the Respondent’s file that was admitted into evidence in Petitioner’s Exhibit 1, there is no evidence that the 2-507 notification is in the Respondent’s file for Ms. Cohen.
“It is further undisputed that on or about April of 2003, Ms. Cohen asked a friend, who is an attorney, to contact the Respondent to gain additional information about the status of her case. On or about May 15, 2003, it is admitted that Elizabeth O’Leary, a New York attorney, spoke with the Respondent by phone and indicated that he was trying to determine the status of her case and promised to contact Ms. Cohen in a few days. Respondent failed to contact Ms. Cohen following the May, 2003, telephone conversation. It is also admitted that on or about July 8, 2003, Ms. O’Leary, counsel in New York, sent Respondent a letter as a followup again requesting follow-up.
“Respondent testified that sometime around July or August of 2003, he conducted an aggressive search for the file. He also testified that although he had been searching for the file since January of 2002, that at this point in time he underwent a more rigorous search and ultimately found the lost file in a briefcase in the closet. It is further undisputed that on August 27, 2003, the Respondent sent Ms. Cohen a letter enclosing a copy of the lawsuit.
“Respondent admits that he never told Ms. Cohen that he had lost her file and that he had taken no action on her case
“It is further admitted that on or about April 7, 2004, Ms. Cohen contacted the Attorney Grievance Commission of Maryland concerning Respondent’s conduct. Respondent admitted in his testimony that he lost the file and continued to search for it over an eighteen month period to no avail until August of 2003. He denies that he ever knew that the case was dismissed and testified that he first learned of the dismissal when meeting with a representative of the Attorney Grievance Commission. He testified that he was “overwhelmed” when he found out that the case was dismissed.
“The Respondent admits to violating Rule 1.3 (Diligence), 1.4(a) (Communication) and Rule 3.2 (Expediting Litigation). The Respondent denies that he violated Rule 1.1 and 1.2 as he argues that both of these Rules are subsumed by his lack of diligence which he admits in Rule 1.3. The Respondent denies that he violated Rule 8.4 (Misconduct) as a result of the Respondent’s admitting to violating Rules 1.3, 1.4(a) and 3.2, this Court only will address Rule 1.1, 1.2 and 8.4 in making its Finding of Fact and Conclusion of Law.
Rule 1.1. Competence.
“In considering all the facts and circumstances elicited through testimony and exhibits in this case, this Court finds
Rule 1.2. Scope of Representation.
“The Respondent admitted to not taking any action on the case after July 30, 1999, when the file was lost. He further admits to not communicating with Ms. Cohen as to the fact that the file was lost and that he was taking no action on her behalf despite her numerous requests regarding status and ultimate resolution of this case. This Court finds by clear and convincing evidence that the Respondent therefore did violate Maryland Rule of Professional Conduct 1.2(a).
Rule 1.4(b). Communication.
“The Respondent testified that he failed to explain at any time following July 30, 1999, that he had lost the file and that no additional action had been taken on her case. This failure is, in this Court’s opinion, by clear and convincing evidence, a violation of Maryland Rule of Professional Conduct 1.4(b) since the Respondent did nothing to permit Ms. Cohen to make an informed decision regarding her representation.
Rule 8.4. Misconduct.
“It is Petitioner’s position that the Respondent violated Rule 8.4(c) and (d). It is the Petitioner’s position that there is insufficient mitigation based on the Respondent’s testimony or the report of Dr. Janofsky regarding a serious or debilitating disorder. Furthermore, it is Petitioner’s position that his conduct in failing to take any action on Ms. Cohen’s case and failing to tell her that he had lost the file
Mitigating Factors
“The Respondent has introduced into evidence a report dated July 21, 2005, of Dr. Jeffrey Janofsky. Dr. Janofsky is a psychiatrist who evaluated the Respondent for purposes of rendering an opinion as to his mental state at this time. Dr. Janofsky opined that Mr. Reinhardt was not suffering from a diagnosable mental disorder but did suffer from personality trait vulnerabilities that may have interfered with his ability to adequately resolve the Cohen matter. Dr. Janofsky reaffirmed what Mr. Reinhardt stated to him and to both counsel and in fact to this Court, that the reason he failed to deal with what he had done in the Cohen matter was due to “embarrassment”. Dr. Janofsky opined that he failed to face the consequences of misplacing the file which led to additional errors in judgment on his part. Dr. Janofsky further notes that his difficulties are exacerbated by a lack of secretaries, associates, partners or other support systems to help him deal with case management. This
Conclusions of Law
“The Respondent has admitted to violating Maryland Rule of Professional Conduct 1.3, 1.4(a) and 3.2.
“This Court finds that the Respondent violated Maryland Rule of Professional Conduct 1.1 by losing the client’s file and failing to reconstruct it in a timely fashion.
“This Court further finds that the Respondent violated Rule 1.2 by failing to follow the client’s instruction to pursue this case and inform her of the status of the case.
“This Court finds that the Respondent violated Rule 1.4(b) in failing to inform the client of his actions or lack of actions, therefore, denying her the opportunity to make an informed decision as to further representation of her case.
“This Court finds that the Respondent did not violate Rule 8.4(c) and (d) in that he did not have sufficient intent rising to the level of dishonesty, fraud, deceit or misrepresentation to a standard of clear and convincing evidence. This Court has considered the mitigating factors as well as the credibility of the Respondent in arriving at this conclusion.”
II.
Bar Counsel excepts to the hearing judge’s failure to find violations of 8.4(c) and (d). Respondent has not filed any exceptions to the hearing judge’s findings of fact or conclusions of law.
This Court has original and complete jurisdiction in attorney discipline matters. Attorney Grievance v. James,
Bar Counsel argues that the hearing judge’s findings as to Rule 8.4(c) are clearly erroneous because, in considering whether respondent violated the rules, the hearing judge impermissibly considered mitigation evidence offered by respondent. Citing Attorney Grievance v. Zuckerman,
Bar Counsel paints with too broad a brush. Evidence presented to the hearing judge may be relevant for different purposes. Evidence may be relevant as to a rule violation as well as to the appropriate sanction. For example, assuming that Bar Counsel alleged that an attorney engaged in fraudulent conduct, evidence as to an attorney’s specific intent would be relevant and properly considered in assessing whether Rule 8.4(c) was violated. It would also be relevant in the consideration of the appropriate sanction.
In concluding that respondent did not violate Rule 8.4(c) and (d) by clear and convincing evidence, the hearing judge indicated that she considered respondent’s intent, his explanation as to why he did not tell the client that he had lost the file and had taken no action on her case since July 1999, and the credibility of the witnesses, as well as the mitigating factors testified to by respondent and the psychiatric evidence presented by respondent. The hearing judge concluded that “[tjhis court finds that [respondent did not violate Rule 8.4(c) and (d) in that he did not have sufficient intent rising to the level of dishonesty, fraud, deceit or misrepresentation to a
Respondent was dishonest and misrepresented the truth when he told his client that he was working on the case when, in fact, he had lost the file and was not working on the case at all. In dealing with his client, respondent exhibited a lack of probity, integrity and straightforwardness, and, therefore, his actions were dishonest in that sense. See Attorney Grievance v. Sheridan,
Respondent’s admission as to violation of Rules 1.3, 1.4(a), and 3.2, along with the court’s finding by clear and convincing evidence that respondent violated Rules 1.1, 1.2, 1.4(b), and this Court’s holding that respondent violated 8.4(c), establish a violation of Rule 8.4(d). Behavior that may seriously impair public confidence in the entire profession, without extenuating circumstances, may be conduct prejudicial to the administration of justice. See Attorney Grievance v. Childress,
We now turn to the appropriate sanction. The sanction for a violation of the Maryland Rules of Professional Conduct depends on the facts and circumstances of each case, including a consideration of any mitigating factors. Attorney Grievance v. Zuckerman,
Bar Counsel maintains that disbarment is the appropriate sanction because respondent has engaged in a “continuing course and pattern of dishonest and deceitful conduct” absent any compelling, extenuating circumstances. Respondent contends that a suspension of between fifteen and thirty days would be appropriate.
Respondent testified at the hearing that he did not inform his client about the missing file when she asked about the status of her case “out of absolute embarrassment.” He testified that he looked frequently for her file, but that he then “would get sidetracked with other stuff.” Respondent acknowledged that the lost file and his substantial inaction was information “that the client needed to know so that she could make educated decisions about her case.”
The hearing judge apparently considered this testimony credible, because she accepted respondent as credible in arriving at her conclusion that his conduct lacked “sufficient intent” rising to the level of dishonesty, fraud, deceit, or misrepresentation. Although we have found the hearing
Respondent presents several factors in mitigation. He has fully cooperated with Bar Counsel. He has engaged in negotiations with the client’s attorney regarding restitution, expressed great remorse to the client, and informed the hearing judge that he continues to work with the client’s new counsel to settle the matter. Respondent presented psychiatric evidence. Dr. Janofsky opined that respondent suffered from personality trait vulnerabilities that may have interfered with respondent’s ability to adequately resolve the problems that occurred with regard to Ms. Cohen’s case. Dr. Janofsky further observed that respondent’s failure to face the consequences of his action led to additional errors in judgment.
Bar Counsel maintains that the appropriate sanction is disbarment, arguing that Dr. Janofsky’s report does not constitute “compelling extenuating circumstances” necessary to justify a sanction less than disbarment for respondent’s acts of intentional dishonesty. Bar Counsel points out that this incident is not the first disciplinary matter for respondent, and that respondent was suspended indefinitely in 1989, with the right to reapply after the expiration of ninety days.
At the outset, we note that lying to a client reflects most negatively on the legal profession. It goes without saying that a lawyer should not lie to the client about the status of the client’s case. See, e.g., Iowa Supreme Court Attorney Disciplinary Bd. v. Sotak,
Every misrepresentation, however, does not call for disbarment. Writing for this Court, Judge Cathell discussed the reach of Attorney Grievance v. Vanderlinde,
“We have not, however, always found disbarment to be the appropriate sanction where there is misrepresentation involved, especially where misappropriation of money was not involved. In Attorney Grievance Commission v. Harrington,367 Md. 36 ,785 A.2d 1260 (2001), we found an indefinite suspension to be the appropriate penalty for an attorney who had made one misrepresentation to one client but whose major transgression was his lack of cooperation with the Attorney Grievance Commission. We did not apply Vanderlinde as a bright-line rule, but applied the facts and circumstances of that case to determine the appropriate*226 sanction. What Vanderlinde holds is that ‘ordinarily’ disbarment will be the appropriate sanction when dishonesty is involved; however, we must still examine the facts, circumstances, and mitigation in each case. In Harrington, there was one instance of a degree of misrepresentation. There was, however, no pattern of a course of deceitful conduct over an extensive period of time sufficient, in our view to support a disbarment. The gravaman of the disciplinary proceeding was the attorney’s lack of diligence and his lack of cooperation with bar counsel. There, we determined that the appropriate sanction was an indefinite suspension.”
Attorney Grievance v. Lane,
Respondent’s conduct related to one client and one case. Significantly, this is not a case of misappropriation of funds or criminal conduct. Considering all of the circumstances, we conclude that the appropriate sanction is an indefinite suspension from the practice of law.
HARRELL, BATTAGLIA and GREENE, JJ. dissent.
Notes
. The version of the Maryland Rules of Professional Conduct applicable to this case is the version of the Maryland Rules in effect prior to July 1, 2005.
. In respondent’s 1989 matter, alcohol was found to be a substantial cause of respondent's conduct. See Attorney Grievance v. Nisbett,
Dissenting Opinion
Dissenting Opinion by HARRELL, J„ which BATTAGLIA and GREENE, JJ., Join.
I respectfully dissent as to the sanction only. Rather than an indefinite suspension, disbarment is more appropriate.
The majority is correct in sustaining the Commission’s exceptions. Thus, Reinhardt, for sanctioning purposes, stands adjudged as having violated the Maryland Rules of Professional Conduct (“MRPC”) 1.1, 1.2, 1.3, 1.4(a) and (b), 3.2, and 8.4(c) and (d) in the course of his representation of Ms. Cohen.
Mitigation is analyzed traditionally by the Court in terms of the American Bar Association’s (ABA) recommended standards. For example, in Attorney Grievance Comm’n v. Glenn,
The mitigating factors listed in the ABA Standards include: absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution 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. (Footnote omitted)
Id.; see also Attorney Grievance Comm’n v. Zuckerman,
We intentionally set a high bar for respondents in cases where the flagship violation is of MRPC 8.4(c) (“conduct involving dishonesty, fraud, deceit or misrepresentation”), such as the present one. That high bar is described best in Attorney Grievance Comm’n v. Vanderlinde,
In cases of intentional dishonesty, misappropriation cases, fraud stealing, serious criminal conduct and the like, we will not accept, as “compelling extenuating circumstances,” anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the “root cause” of the misconduct and that also result in an attorney’s utter inability to conform his or her conduct in accordance with the law and the MRPC.
Vanderlinde explained why the bar was set at that height:
Unlike matters related 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. Disbarment ordinarily should be the sanction for intentional dishonest conduct.
Vanderlinde,
The majority in the present case points out, appropriately so, that we are not inflexible and unyielding in our application of Vanderlinde, The majority seeks to illustrate this by quoting dicta from Attorney Grievance Comm’n v. Lane,
Not cited by the majority in the present case, but referred to in Lane, is Attorney Grievance Comm’n v. Harrington,
In settling on suspension in Harrington, the Court focused almost entirely on Harrington’s multiple violations of MRPC 8.1, evinced by his “flagrant disregard of and response to communications from Bar Counsel.” Harrington,
Turning then to Dr. Janofsky’s report, I find it to be of little service in the mitigation analysis. Dr. Janofsky’s letterhead indicates that he was a Board-certified psychiatrist and neurologist. The opening paragraph of his report, however, states that Reinhardt’s counsel in the present case engaged the doctor only “to assess whether Mr. Reinhardt was suffering from psychological factors that would impact negatively on his ability to practice law.” (Emphasis in original). Having administered an MMPI-2 test
The ultimate opinion expressed by Dr. Janofsky was, in pertinent part:
It is my opinion that around his alleged mismanagement of the Cohen matter, Mr. Reinhardt was not suffering from a diagnosable mental disorder. However, Mr. Reinhardt was suffering from personality trait vulnerabilities that may have interfered with his ability to adequately resolve the Cohen matter.
Personality traits are enduring lifelong patterns of perceiving, relating to and thinking about the environment and oneself and are exhibited in a wide range of important social and personal contexts. In Mr. Reinhardt’s case, Mr. Reinhardt’s tendency to misinterpret the motives of others and his rationalization of his own behavior in his way of avoiding his own feelings of hostility and affects his ability to deal with difficult matters. Additionally, his tendency to cover over and to deny the intensity of his resentments could have also exacerbated his problems in effectively dealing with his misplacement of the Cohen file.
Mr. Reinhardt’s statements to both myself and to the Bar Counsel investigator that “embarrassment” led to his behaviors in the Cohen matter is a very accurate statement. Failure to face the consequences of misplacing the file led to further errors in judgment on Mr. Reinhardt’s part.
Mr. Reinhardt’s difficulties were further exacerbated by his lack of a secretary, associates, partners or any other support systems to help him more appropriately deal with case difficulties. (Emphasis in original).
there ... needs to be almost conclusive, and essentially uncontroverted evidence that would support a ... finding not only that the attorney had a serious and debilitating mental condition, but that the mental condition, in a sustained fashion, affected the ability of the attorney in normal day to day activities, such that the attorney was unable to accomplish the least of those activities in a normal fashion. Unless that standard is met the impairment is not the “root cause” of the misconduct.
Vanderlinde,
Respondent engaged in intentional deceitful conduct, over an extended period of time, on multiple occasions. Embarrassment, however triggered, at having mislaid (or lost) Ms. Cohen’s file is not an acceptable excuse for avoiding the client’s many inquiries about the status of her case. Knowing that he had done nothing to effectuate service of process, or engaged in any other meaningful activity in furtherance of her case since filing suit on 30 July 1999, Reinhardt knew or should have known, given modern docket management practices and technologies used by clerk’s offices statewide, that Md. Rule 2-507(c) (dismissal after one year for lack of prosecution) likely would be effectuated, irrespective of whether he actually received a copy of the formal Notice of Contemplated Dismissal from the clerk, sent on 27 September 2001. He made no effort at any time to reconstruct those parts of his file that could be found easily from other sources, such as obtaining a copy of the complaint from the court jacket, thus
I would order disbarment of Respondent.
Judge BATTAGLIA and Judge GREENE join in the dissenting opinion.
. Lane violated MRPC 1.1, 1.2, 1.3, 1.4(a) and (b), and 8.4(a), (c), and (d) regarding one complainant. As to the other complainant, he violated MRPC 1.1, 1.2, 1.3, 1.4(a) and (b), 1.5(c), and 8.4(a), (c), and (d).
. Dr. Janofsky did not supply live testimony before the hearing judge. Therefore, demeanor-based credibility could not have been a factor in the hearing judge’s analysis.
. In Harrington, the respondent attorney paid the particular complainant in the 8.4(c) violation case $35,000 in settlement of the loss she claimed as the result of his misconduct. Reinhardt, as he stands before us, offers only good intentions in similar regard.
. In addition to noting his prior indefinite suspension, Dr. Janofsky’s report, under the “Case Summary” heading, lists additional disciplinary contacts Reinhardt had with Petitioner. It was reported that he had been reprimanded in 1987 for neglect of a personal injury case. In August 2003, he received a warning from the Commission for lack of diligence in handling an estate.
. The Minnesota Multiphasic Personality Inventory (MMPI)-2 is a frequently used clinical test to assess an individual’s psychological personality profile.