*1 THE JUDGMENT OF COURT OF SPECIAL APPEALS REVERSED. REMANDED CASE THAT TO COURT WITH DIRECTIONS AFFIRM THE TO JUDGMENT OF THE CIRCUIT COURT FOR ANNE ARUNDEL COUNTY. PAY RESPONDENT TO THE IN COSTS THIS COURT AND IN THE COURT OF SPECIAL APPEALS.
911A.2d 440 ATTORNEY GRIEVANCE COMMISSION MARYLAND OF
v. Bаrry E. SWEITZER. 69, Sept. Term, Misc. Docket No. AG 2005. Appeals Maryland. Court of Nov. *3 Thompson, (Melvin
Fletcher P. Asst. Bar Counsel Hirsh- man, Bar Counsel for Atty. Com’n), petitioner. Grievance for Flores, Jr.,
Dion E. Rockville, for respondent. BELL, Argued C.J., before RAKER, WILNER, CATHELL, HARRELL, GREENE, BATTAGLIA and JJ. BATTAGLIA, J. (“Peti- Maryland Grievance Commission
tioner”), pursuant Mary- through Bar Counsel and acting l6-75l(a),1 or re- petition disciplinary a Rule filed land Sweitzer, on Barry E. Respondent, action against medial in- complaints were two which there December client, Counsel, a cluded, by Bar and the other one of James respect Complaint L. to the James Sebold. With Sebold, violated alleged it that L. was by failing 1.3 (Diligence)2 Conduct Rule Professional recording promptness diligence act with reаsonable Sebold, Respondent pre- land Mr. which conveying deed With re- pared, County. Land Records of Garrett Counsel, alleged it that spect complaint of Bar he, penalties under the deceitfully acted when Form con- presented a Gift Certification perjury, signature of his former wife to Motor forged tained (“MVA”), the nature misrepresented Administration Vehicle by presenting the Gift Certification Form of the transaction auction, misrepresented for a vehicle purchased authority Certifica- sign had his former wife’s the Gift he 8.4(b), (c), behalf, Rule Form on in violation of tion her (Misconduct).3 (d) 16-751(a) provides: Rule (a) Upon disciplinary or remedial action. Commencement Upоn approval or approval Attorney Grievance] Commission. [the Commission, [Attorney Bar Counsel shall Grievance] direction of the Disciplinary or in the Court of
file a Petition for Remedial Action Appeals. *4 provides: 2. 1.3 Rule lawyer diligence promptness in act reasonable and
A shall with representing a client. provides part: 3. Rule 8.4 in relevant lawyer professional for a to:
It is misconduct (b) adversely lawyer’s a on the commit criminal act reflects lawyer honesty, respects; or fitness as a in other trustworthiness fraud, (c) dishonesty, misrepre- engage involving in conduct deceit sentation; 16-752(a)4 In Maryland accordance with Rules and 16- 757(c),5we the petition referred to Judge Donald E. Beachley of the Circuit Court fоr Washington County for an evidentiary hearing and to findings make of fact and conclusions of law. Judge Beachley held a hearing on May and on June 2006, issued of Findings Law, Fact and Conclusions of which he found by clear and convincing evidence that Respon- dent had violated Maryland Rules of Professional Conduct 1.3 8.4(c) with respect (d) to Mr. complaint Sebold’s with respect to Bar complaint: Counsel’s
Findings of Fact and Conclusions of Law that, “The Court finds except indicated, as otherwise following facts have been established by convincing evi- dence:
“1. graduated from West Virginia University Law School and was admitted the Maryland Bar on 16,1999. December
“2. is currently a member in good of standing the Maryland Bar. Findings
I. Concerning of Fact Complaint of Bar Coun- (Re: sel Transfer of of Gift Certifica- TahoelPresentation A) tion Form to MV
“3. Respondent and Kepple Cristine were married on Au- gust 1991. They separated March, 2001 and were (d) engage prejudicial in conduct to the administration of justice.... 16-752(a) 4. Rule states: (a) Upon filing Order. of a Disciplinary Petition for or Remedial Action, Appeals may the Court of designating enter an order judge any circuit court to hear the action responsible and the clerk maintaining the designation record. The require order of shall
judge, after consultation attorney, with Bar Counsel and the to enter scheduling defining order discovery the extent of setting dаtes motions, completion discovery, for the filing hearing. 16-757(c) pertinent Rule part: states in judge prepare shall and file or dictate into the record a statement fact, judge's findings including findings any toas evidence action, regarding remedial and conclusions of law. *5 April Divorce dated by Judgment a of Absolute divorced 2004. the Circuit Court by issued
“4. Pursuant Order 14, 2004, items certain County, Maryland July dated Garrett of the to be at auction. One property were sold personal Tahoe Chevrolet at auction was items to be sold Kepple. Ms. joint Respondent titled in the names father, Respon- of the acting agent as the “5. Respondent’s public at dent, Tahoe the 1997 Chevrolet purchased $2,700.00. Respondent 2004 for auction on September Tahoe, but he was bid on the personally had intended to for the auction. arrested when he arrived Certifi- Kepple signed “6. the back Ms. 5) (Petitioner’s Exhibit the Tahoe cate of Title for prior to sale. delivered it the auctioneer may attempt to Respondent “7. Due to her concern title to his sole transferring register the Tahoe without name, to the Motor Vehicle Administra- Ms. wrote Kepple (“MVA”) in ensuring assistance agency’s tion to seek the prior to its title to the vehicle transfer to the MVA Kepple’s A of Ms. letter registration. copy as Petitioner’s 2004 was admitted September dated Exhibit 4. to the MVA went
“8. November On title tо transferring for the purpose office in Cumberland MVA was the Tahoe his sole name. He assisted Respondent present- Eva agent customer service Gibbs. of Title for the Certificate ed Ms. Gibbs with form. The Cer- Gift Certification corresponding Tahoe and and Ms. signed by Respondent Title properly tificate of Kepple. procedure, Ms. Gibbs
“9. In accordance with standard computer into the relevant information entered ‘flag’ The pertaining to this vehicle. ‘flag’ discovered computer on the and was ‘Investigative denoted Services’ Kepple’s letter a result of Ms. apparently generated September dated
“10. significance Uncertain of the of the ‘flag,’ Ms. Gibbs took both documents to with supervisor. consult her *6 supervisor Ms. to directed retain the Gibbs Certificate Title and Gift Certification form and specifically give not the to Respondent. documents
“11. counter, Ms. Gibbs returned to the customer service at which time she advised Respondent problem there was a with Gibbs, the transaction. Respondent asked Ms. “What’s problem?,’ the to which Ms. T responded, Gibbs don’t know.’ “12. Respondent then asked Ms. if he look Gibbs could (Certificate the paperwork of Title and Gift Certification form). Gibbs, contrary instructions, Ms. to her supervisor’s gave Respondent, the two documents to at which time he tore off the Gift Certification form stapled which had been of Title left Respon- Certificate the office. MVA dent not Title, did take the Certificate of which left on the counter.
“13. Gift presented Certification form to Ms. Gibbs However, was not produced hearing. at the Ms. Gibbs testified that a signature purported that to be Respondent’s on appeared ‘Signature the signature of Giver’ line and a to purporting be Kepple Cristine Cristine Sweit- Kepple zer appeared ‘Signature on the line. When Co-Giver’ questioned by the concerning Court her recollection of the signatures, Ms. Gibbs said she was ‘pretty sure’ that the signature for Kepple Ms. was not in a representative capaci- ty-
“14. Respondent he signed testified that on name the ‘Signature of Giver’ line and that he signed ‘Barry Sweitzer for C.K. Sweitzer’ or ‘B.E. C.K. Sweitzer for Sweitzer’ on the ‘Signature Co-Giver’ Respondent line. testified that he had the to authority sign the Gift Certification form on behalf of his wife based on statements by made Ms. Kep- ple’s divorce attorney.
“15. Law, As set forth in the Conclusions of infra, Court cannot find clear convincing evidence that Gift Certification presented form by Respondent to Ms. Kepple’s to be Ms. purporting a signature contained Gibbs signature. direct, au- express no he had Respondent
“16. concedes of Ms. form on behalf Certification thority sign Gift authorize did not confirmed she Kepple. Kepple Ms. form on her behalf sign the Gift Certification Respondent. making gift no had intention she Ms. between proceeding “17. The divorce Ms. According Respondent, was not amicable. Kepple him cause diffi- every possible use means to would Kepple of criminal culty, including filing charges. lines on of Giver’ Immediately ‘Signature
“18. above statement: following Certification form is Gift all statements perjury certify penalty under “I/we *7 of my/our to the best herein are true and correct made information, certify further knowledge, and belief. I/we is involved money no or other valuable considerations that contrary being transfer is not made this transfer. This to Vehicle Laws. legally
“19. of a effective Gift Certification In the absence price a tax on the form, the would 5% sаles charge MVA $2,700.00, $135.00, the have to be or and vehicle would tax inspected. inspection requirement There no sales or is validly a executed Gift pursuant to vehicles transferred form. Certification of Law
Conclusions violated Respondent contends that initially “Petitioner (d) (c), a 8.4(b), presenting a document with by Rules forged signature representa- customer service MVA However, testimony Ms. on this assessing tive. after Gibbs’ issue, by convincing this conclude clear and Court cannot to presented form Ms. evidence that Gift Certification purporting Kepple’s. contained a to be Ms. signature Gibbs 8.4(b), (c), Hence, not violate Rules Respondent did (d) respect. in this 8.4(c) (d)
“However, Respondent viоlated by Rules attempting to transfer title the Gift using Certification form. purchased public The Tahoe was at a auction and therefore was not a clearly gift Respondent spouse. to from his former Although financial incentive to use to Gift Certification minimal, form was Respondent was nevertheless attempting to paying avoid the 5% sales tax and having the vehicle inspected. The Court finds by convincing clear and evi- Respondent’s that presentation dence of the Gift Certifica- tion form was an attempt by misrepre- deceive the MVA senting the true nature the transfer of the Tahoe. Such 8.4(c) (d). action a constitutes violation of Rules “Similarly, the Court finds clear by convincing evi- Respondent dence did not have authority sign Gift form Kepple. Certification on behalf Ms. Respon- testimony dent’s Kepple’s attorney Ms. gave divorce him authority sign Gift Certification form is simply not Respondent credible. and Mr. Kepple were involved a rancorous It improbable divorce. under Respondent these circumstances that to sign authorized on any document behalf of Ms. Kepple in the Fall Kepple, Bar, Ms. member of the did not author- ize treat transfer of a gift. the Tahoe as Respondent knew that the transfer was not as a result gift and the reasonable is that inference he did not attempt to obtain Ms. Kepple’s signature or express authority to sign оn her behalf because knew Kepple Ms. conduct, not comply. would This established clear and *8 evidence, 8.4(c) convincing is also a violation of Rules (d). See generally, Attorney Grievance Comm’n v. Chil- dress, (professional A.2d 117 misconduct is not to limited conduct within the of course the attorney-client relationship). Findings Concerning
II. of Fact Complaint of James Sebold
“20. part Sometime toward the latter James Se- requested bold Respondent prepare to transferring deed certain real property to Ms. Sebold from his mother. deed, existing copy obtained Respondent “21. his deed, with Mr. Sebold and met the new prepared mother and Mr. Sebold’s signed by The deed was mother. the document. prepared who person as the by Respondent, property to a deed attached the executed Respondent “22. Assess- County to Garrett it presented intake sheet Office’) (‘Assessments with his in accordance ments Office normal prac- that the testified Respondent practice. usual to Assessments presented first for a deed be tice was the Assessments delivered Office, would then be which hall for recor- across the Office to the Land Records Office dation. re- recordation, customarily Respondent would
“23. After House. Howev- mail slot in his Court ceive deed no had transaction, longer er, Respondent at the time this law closing process a mail slot he was in Land he asked the Clerk He testified practice. to Mr. Sebold. to mail the recorded deed Records up he not follow concedes that did “24. in the Land Rec- had recorded that the deed been ensure County. Garrett ords of in the Land Records
“25. The deed was never recorded County. Garrett of the deed. copy not maintain a
“26. did transaction to the Sebold “27. The fee for service related costs. plus recording $25.00 $100.00 legal fee and representing the “28. The sum of $125.00 provided Respondent’s counsel recording cost has been Mr. reimburse Sebold.
Conclusions of Law provides ‘[a] Rule 1.3 which “Respondent violated promptness lawyer diligence act with reasonable shall invоlving In a client.’ transactions representing important legal the most of title to real property, transfer records of the deed the land act is recordation is situation. Md.Code. Ann., county property where the *9 3-101(a) (2006). § Prop. Respondent’s obligation to Real Mr. that the verify Sebold deed has been recorded in for County, Maryland. the Land Records Garrett Attor- Cfi v. ney Cassidy, Grievance Comm’n Md. 766 A.2d (2001). The evidence is clear convincing and Respondent failed act with diligence reasonable in con- cluding very simple legal this transaction.6
DISCUSSION hearing judge found violations of Maryland Rules of 8.4(c) (d). 1.3, Professional Conduct Neither Petition- er nor took Respondent exception judge’s tо the hearing findings Therefore, of fact or conclusions of law. accept we fact, the hearing established, court’s findings for the purpose of determining Maryland sanction. 16-759(b)(2)(A). Rule Logan, Grievance Comm’n v. (2005). Respondent conceded, find, and we hearing that the court’s findings of fact support the conclusions law. The sole issue we confront is imposed. the sanction to be
SANCTION In judice, the case sub Respondent was found to have 8.4(c) violated Rules of Professional Conduct 1.3 and (d). Sebold, With respect complaint of Mr. Respon 1.3, dent violated Rule of Professional Conduct duty requiring ethical him to act with diligence reasonable promptness representing Sebold, Mr. when Judge failed conclude Beachley what called “very simple legal transaction” verifying Mr. Sebold’s deed had been properly recorded in the County Garrett Land Records Although concerning pay- there is no direct evidence the method of costs, recording presumably Respondent ment of the would have issued a check from his trust account. In such event have should noted due course that the recording check for had not been tendered payment. *10 reprimand that a would be Respondent asserts Office. for this violation.
appropriate sanction this, any without additional In a situation such as violations, may a public reprimand a sanction such as еthical Lee, See, v. e.g., Attorney Grievance Comm’n appropriate. be (2006) 526-27, 273, 517, (reprimanding 890 278 390 Md. A.2d act failing for first offense of to with reasonable attorney meeting with diligence promptness responding and client). Ward, 394 also Comm’n v. Attorney See Grievance (2006) 477, repri that a (stating Md. 904 A.2d 499-500 multiple mand too a sanction for rules would be lenient violations). involving more imposing sanctions cases When however, violations, we complaint multiple than rules one impose single infractions sanction together consider the facts and of the case. upon particular based circumstances rec- complaint, Respondent to Bar Counsel’s respect With impose a month for the suspension ommends that we three 8.4(c) and Maryland Rule of Professional Conduct violations (d). suspension that a month argues He three injured no client was and because the misconduct because that he Additionally, Respondent isolated incident. asserts at the requests has with all Bar Counsel’s complied violations, inexperienced attorney time was an of the he divorce. emotional distress as a result of his recent suffering Pe- recommends that be disbarred. Petitioner that to consider important titioner contends the most factors when sanctions are the nature imposing disciplinary lawyer’s argues misconduct and the motives. Petitioner Conduct violated Rule Prоfessional 8.4(c) two the Gift making misrepresentations presenting — a vehicle purchased Certification Form MVA for he he had former wife’s misrepresenting auction and the Gift Form on her behalf—in authority sign Certification inspection payment an effort to avoid of a vehicle sales tax and fee.7 Respondent's Rule did not allude to violation of Petitioner 8.4(d) Conduct in his Recommendation for Sanction. Professional impose
In this case we shall the sanction of an indefi nite the Rule 1.3 and the suspension, encompassing violation 8.4(c) (d) Rule violations. E.g. Attorney Grievance Mininsohn, v. A.2d Comm’n sanction of (imposing single multiple disbarment complaints against attorney involving multiple rules viola tions). Angst, also Grievance v. See Comm’n (2002). 404, 420-21, Md. duties of this is the
Among highest protec Court tion of the as we must legal profession, “uphold highest ... professional protect public standards of conduct unfit imposition by unscrupulous practitioner.” from *11 Guberman, 131, 136, v. Attorney Grievance Comm’n 392 Md. 337, (2006), A.2d 340 Rheb v. Bar Ass’n quoting 896 of (1946). 200, 205, 289, City, Baltimore 186 Md. 46 A.2d 291 See Sheridan, 1, 27, Attorney Grievance Comm’n v. 357 Md. 741 (1999) (“Because 1143, 1157 A.2d character attorney’s must remain this beyond reproach duty, Court has the since attor officers, neys are its to insist the maintenance of upon integrity prevent of the bar and to of an transgressions lawyer individual from bringing image disrepute.”), its into Deutsch, quoting 353, Grievance v. 294 Attorney Comm’n Md. (1982) 368-69, 450 A.2d (emphasis original). “ sanctions, that, we imposing When have enunciated ‘[t]he public protected is when sanctions are imposed are commensurate with the nature and of the violations gravity ” they and the intent with which were committed.’ Gore, 455, 472, Grievance v. 380 Md. Comm’n 845 A.2d (2004). sanction for violations of the Rules of depends upon Professional Conduct the facts and circumstances of each case. v. Attorney Grievance Comm’n Glenn, (1996). Judge Glenn, Raker, for writing this Court has that the suggested American Bar Association Standards for Imposing Lawyer (“Standards”) Sanctions provides appropriate framework and can be accessed of a sanction for the determination asking: through
(1)
duty
of the ethical
violated?
nature
What
(2)
mental state?
lawyer’s
was the
WTiat
(3)
injury
potential
actual or
the extent
What was
lawyer’s
misconduct?
caused
mitigating
or
circumstances?
any aggravating
Are there
American Bar Association
(citing
at
Id. Sanctions, Standard 3.0 Imposing Lawyer Standards (1987)). Lawyer’s Bar Association See also American (2003) (discussing 101.3001 on Professional Conduct Manual and deter- lawyer misconduct analysis characterize similar considering whether sanction” before presumptive mine “the present). are mitigating or circumstances any aggravating factors,” to the Stan- pursuant defined “mitigating We have dards, including record; a dishon- absence of prior disciplinary
absence motive; problems; or emotional personal est or selfish rectify or to to make restitution timely good faith efforts misconduct; full and free disclosure dis- consequences proceedings; attitude toward cooperative or ciplinary board law; reputation; character or practice inexperience in disci- disability impairment; delay or mental or physical rehabilitation; imposition interim plinary proceedings; sanctions; remorse; finally, remote- penalties other *12 prior ness of offenses.
Glenn,
488-89,
(citing
The first two factors included the state of duty lawyer’s of the ethical violated and the nature mind, simultaneously. Attorney See frequently are considered Calhoun, 532, 572, 391 Md. 894 A.2d v. Grievance Comm’n (“It 518, dishonesty, of effective finding 542 is not the however, that is essential to our misappropriation, fraud or selec is the determination whether disbarment of tion, gravity the intent. ‘The miscon- attorney’s rather but 600 the of solely by
duct is not measured number rules broken but conduct’.”), by lawyer’s the largely quoting is determined Culver, 265, 280-81, Attorney Grievance Comm’n v. 371 Md. 1251, (2002), in quoting 808 A.2d turn Griev Briscoe, 554, 568, 1037, 1044 745 A.2d ance Comm’n v. Md. (2000). judice, Respondent In the case sub violated 8.4(c) (d) to by attempting Rules Professional Conduct Maryland by avoiding payment defraud the State found, tax. As Judge Beachley Respondent vehicle sales Form to submitted the Gift Certification the MVA under “attempting paying to avoid the 5% sales рenalties perjury having inspected.... Respondent’s presen tax and the vehicle tation of the Form was an to deceive attempt Gift Certification the true nature of the transfer of misrepresenting MVA Beachley the Tahoe.” also found that Judge Respondent the form on knowingly misrepresented authority sign “Respondent of his former wife: conceded that he had behalf direct, authority sign no form express Gift Certification on Kepple. Kepple behalf Ms. Ms. confirmed she did sign not authorize the Gift Certification form making gift on her behalf and she had no intention of Respondent.” alleged has that because there was no Counsel, Complaint
client involved in the
of Bar
the еthical
potential
violation is lessened because the
loss was to the
no
on
government, which would have collected
sales tax
gov
transfer
the automobile. Misconduct
affects the
ernment, however,
as
equally
abhorrent
misconduct
clients. As
involving
Judge
aptly
Glenn Harrell
stated
“
Gore,
see no
moral
supra,
significant
We
distinction be
tween
willfully defrauding
cheating
personal gain
client,
individual,
government. Cheating
one’s client
defrauding
government
reprehensible
equal
are
1213,
In in many government of the cases which the has been the Maryland victim of a violation of Rules of Professional Con- 8.4(c) (d), and have either an indefinite imposed duct we suspension or a disbarment. suspension
Indefinite
has
deemed
when
been
of a violation of
of Professional
proof
Maryland Rules
8.4(c)
(d)
proof
Conduct
has fallen short of
and
fraudulent
Clark,
Attorney
intent.
In
Grievance Commission v.
363 Md.
(2001),
indefinitely suspended
A.2d 865
we
an attor-
for
ney
failing
pay employee
Maryland
taxes
violation of
1.15(b),
8.4(a), (b), (c),
Rules of Professional Conduct
and
and
(d)
noted,
because we
significantly,
attorney had
never
sought
completely
payment
avoid
of the taxes and
possessed
there was never a
that he
finding
fraudulent
184-85,
Moreover,
intent.
Id. at
In we disbarred (c), 8.4(a), (b), of Professional Conduct Maryland Rules that he had others, “misappropriating funds (d), for among 572, at Comptroller.” of ... collected on behalf misconduct, we severity of his Regarding at 846 A.2d 374. the re- failure to make repeated that Mininsohn’s explained “ re- ‘exemplifies tax withholding payments quired employee engaging for honesty proclivity lack of spondent’s at justice’.” of Id. to the administration conduct prejudicial 420, 372, at Angst, 369 Md. quoting 846 A.2d at A.2d at 271 Md. at Agnew, also at See income tax re- attorney filing fraudulent (disbarring fraud, with turns, is a crime “infested tax evasion because of the bar deceit, dishonesty,” and “when member of by means personal gain dishonest for willfully shown to bе conduct, the most com- fraud, deceit, or like absent cheating circumstances, ... follow[s] disbarment pelling extenuating course”). a matter of for an Gore, sanction pondered appropriate
In
we
supra,
tax returns
faffing
to file
plead guilty willfully
who
attorney
months in
exceeding thirty
for a period
sales tax
pay
amount-
operated,
he
a restaurant
owned
connection with
$800,000, thereby violating
of over
owing
to a tax due and
ing
(d).
8.4(b), (c), and
Conduct
Maryland Rules
Professional
attorney’s
findings that the
hearing judge’s
affirmed the
We
give
decision to
attorney’s
willful
actions were
because
knew or should have
checks “that he either
tax authorities
this more than
by
dishonored
thе bank makes
known would be
Gore,
A.2d
Md. at
failure-to-file case.”
simple
“[wjhile
that,
the record does not
emphasized
at 1214. We
returns, attorney]
any
filed
fraudulent
indicate that [the
decep-
type
reflects the same
to issue bad checks
decision
willful tax evasion.” Id.
involving
tive intent found
cases
concluded that disbarment was the
sanction.
We
Id.
In conduct the case constituted attempt and the defraud State MVA tax; of the payment Judge Beachley avoid sales found form penalties perjury submitted the under the “attempting to avoid the 5% sales tax and paying having inspected.... Respondent’s vehicle presentation Gift Certification Form was an attempt deceive the MVA misrepresenting the true nature of the transfer the Tahoe.” *15 Respondent presented the Form to Gift Certification the MVA auction, for a vehicle he at purchased misrepresent- knowingly ing both nature of the the transaction and his to authority sign the form on of behalf his former wife. Judge Beachley also that “Respondent determined that the knew transfer was not gift as a result of a and the reasonable inference is that he did not attempt Ms. Kepple’s signature express obtain authority sign on her behalf because knew Ms. Kepple comply.” would not
Regardless of
relatively
the
modest nature
the financial
conduct,
benefit that
gained,
could have
inten-
tionally
interеst,
deceitful and
by pecuniary
motivated
egregious.
require honesty
We
and
from
integrity
attorneys,
White,
as we remarked in Attorney Grievance
v.
Commission
346,
(1999),
354 Md.
[A] or deceit cause public the lawyers lose confidence in other the [Cjandor judicial system as a whole.... in by lawyer, any capacity, is one of the most important character traits of a member of the Bar.... very integrity judicial the system demands that who in attorneys practice this state, courts, represent who in clients and who interact in judicial matters with the courts do so with absolute honеsty personal integrity.
604 367, 457, 364, Similarly, explicated at 459. we Id. at 731 A.2d Vanderlinde, 364 Md. Attorney Commission v. Grievance (2001): 376, A.2d 463 diligence and the relating competency,
Unlike matters
like,
closely
conduct
entwined with
intentional dishonest
to such
important
most
matters of basic character
as
aby lawyer
as to
intentional dishonest conduct
degree
make
are,
Honesty
dishonesty
or are
beyond
almost
excuse.
not,
attorney’s
character.
present
418,
at
at 488. See
Grievance Comm’n
Id.
A.2d
(2005)
596-97,
642,
876 A.2d
Pennington,
v.
387 Md.
honesty in
importance
(referring
“unparalleled
law”),
at
Angst,
With
factor
Bar
for Imposing Lawyer
American
Association Standards
Sanctions,
potential injury
actual or
is a factor
amount of
*16
consider,
to an ethical
provide
to
but does not
a defense
Glenn,
488,
Here,
Md. at
The final factor by recommended Bar American Associ- ation Standards for Imposing Lawyer Sanctions, whether any there are mitigating circumstances, or aggravating has been seized upon by Respondent posits as he that the ethical violations were not of part misconduct; a of pattern that he record; does not have a prior disciplinary that he fully cooper- ated with discipline process; that he inexperienced was an attorney; and that suffering he was emotional from distress a recent divorce. We note that these factors were not the subject of any findings by the hearing judge did not except 16-757(b) to the findings. See Maryland Rule (“A respondent who asserts an affirmative defense or a matter or mitigation extenuation has the proving burden of defense matter by preponderance a evidence.”); Lee, Grievance Comm’n v. 566-67, (2006) (“The A.2d 907-08 hearing judge made no findings as to whether Respondent established a preponderance of factors____We the evidence any mitigating acknowledge that Respondent may have faced health times, issues at certain but observe that not has established by preponder- a ance of the evidence his medical condition as a mitigating factor for his throughout misconduct period time question.... Respondent also present failed to any mitigating factors to this Court during argument.”). oral
Nevertheless, we recognize that Respondent not does have a disciplinary record and his instant violations are not the result pattern of misconduct; the two violations occurred two years In apart. Mininsohn, supra, we noted: “Mininsohn’s ...
conduct demonstrates an pattern extensive indifference, . . . ‘exemplifies ... lack of honesty proclivity [a] engaging in conduct prejudicial jus- administration of ... tice’ pattern [such that] misconduct may also serve as factor,” aggravating and determined that disbarment the appropriate sanction. Id. at 846 A.2d at quoting *17 at 756 that the (remarking 369 Md. at
Angst, lien had to file a cumulative Comptroller against also (internal cita- delinquency”) attorney, “evidencing рattern a omitted). Bar See also American Association Standards tions Sanctions, 9.22 at 49 Lawyer Standard Imposing fac- (delineating pattern aggravating “a of misconduct” tor). Here, suspension is more appropriate an indefinite a disciplin- no other impose sanction because has pattern his violations were not a misconduct. ary record and ORDERED; ALL PAY IT IS SO RESPONDENT SHALL COURT, THE AS TAXED BY CLERK OF THIS COSTS TRANSCRIPTS, ALL COSTS OF PURSUANT INCLUDING 16-715(c), WHICH SUM MARYLAND RULE FOR TO THE ATTOR- IS ENTERED IN FAVOR OF JUDGMENT NEY GRIEVANCE COMMISSION. GREENE, JJ.,
HARRELL and Dissent. GREENE, HARRELL, J., J., Dissenting Opinion by which joins. (and starting ending)
I not with the quarrel Majority’s do suspension My is here. point an indefinite I it with a qualify from that conclusion is that would departure ninety days. no than sooner right reapply complaint I intent in the agree that Sweitzer’s matter from that of the cases indistinguishable of Bar Counsel Yet, oрinion op. in the at 14-18. Majority slip mentioned mone- attorney significant where each in those cases received misconduct, from his or her consummated tary gain benefit fell only actually receiving conduct not short his Sweitzer’s efforts, i.e., his his was an monetary misguided benefit from last moment attempt unconsummated withdrawn hand, exceedingly from the potential gain attempt own ($135) to the facts of indefi- compared open-ended modest cases suspension by Majority. nite discussed suspen- may dispute open-ended whether an indefinite One right than with qualified sion is a lesser sanction one time. period no sooner than a minimum Under the reapply *18 former, a respondent may seek granted and be readmission at theoretically any time after the effective date of the suspen- sion. That I notwithstanding, am of the view that such an open-ended can, indefinite suspension in practice, be more onerous than a minimum “sit-out” time indefinite suspension because at least the latter offers some clue to a respondent when the Court deems it likely most appropriate to reapply with some hope success. The open-ended version leaves a respondent usually and completely the dark as to when it is propitious most to reapply, and fosters potentially multiple frustrating attempts seeking Court, readmission until the (if its wisdom, ever). infinite grants one While there certainly are cases that merit that approach, this them, is not one of my judgment.
Judge Greene authorizes me to state that joins he this dissent.