Attorney Grievance v. CollinsAttorney Grievance v. Collins
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION – This attorney grievance matter involves attorney who was subject of sixty-day definite suspension from practice of law in Maryland as result of unrelated disciplinary action. As result of information attorney alleged in petition for reinstatement and subsequent complaint, Bar Counsel filed new petition for disciplinary or remedial action against attorney. Bar Counsel dismissed allegations of misconduct in petition with respect to new complaint and proceeded on allegations in petition related to attorney‘s allegedly false statements in petition for reinstatement and failure to respond to Bar Counsel‘s requests for information concerning new complaint.
Although Court of Appeals determined that attorney violated Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 3.3(a)(1) (Candor Toward Tribunal), 8.1(a) (False Statement of Material Fact), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to Administration of Justice), and 8.4(a) (Violating MARPC), Court concluded that, given nature of false statements at issue and developing caselaw, disbarment was not appropriate sanction. In numerous attorney disciplinary cases involving intentional dishonesty under MARPC 8.4(c) and knowingly made false statements under MARPC 3.3(a)(1) and 8.1(a), Court has not imposed sanction of disbarment and has not found pursuant to Attorney Grievance Comm‘n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), existence of compelling extenuating circumstances to be “root cause” of misconduct to warrant lesser sanction. Given this line of cases, Court expressly recognized that holding in Vanderlinde no longer exclusively sets standard for imposition of sanction in cases involving intentional dishonesty. Court of Appеals indefinitely suspended attorney from practice of law in Maryland.
Opinion by Watts, J.
Filed: February 25, 2022
*McDonald, J. now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled Pursuant to
On March 20, 2020, C.J. Irving filed a complaint against Collins with Bar Counsel. Irving had been a party to a child custody case in which Collins represented the children‘s other parent. Collins did not respond to requests from Bar Counsel for information during the investigation of the Irving complaint and represented in the petition for reinstatement that no complaints were pending against her.
On April 21, 2021, on behalf of the Attorney Grievance Commission, Petitioner, Bar Counsel filed a “Petition for Disciplinary or Remedial Action” against Collins, charging her with violating Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) 3.3(a)(1) (Candor Toward the Tribunal), 4.1(a)(1) (False Statement to Third Person), 8.1(a) (False Statement of Material Fact), 8.1(b) (Failing to Respond to Lawful Demand for Information), 8.4(b) (Criminal Aсt), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct that is Prejudicial to the Administration of Justice), and 8.4(a) (Violating the
First, based on the Irving complaint, Bar Counsel asserted that Collins engaged in misconduct during a telephone call with Irving. Specifically, Bar Counsel alleged that on June 13, 2018, Irving, who was represented by counsel, filed in the Circuit Court for Baltimore County a complaint to modify custody against C. Davis, the father of her two minor daughters. Collins entered her appearance as counsel for Davis and filed an answer and other papers on his behalf. On May 9, 2019, the circuit court entered an emergency order for child access, returning the children to the primary physical custody of Davis and providing for Irving to have supervised access. On October 23, 2019, the circuit court entered a consent order for temporary child access, providing Irving with visitation. On November 6, 2019, the circuit court granted a motion by Irving‘s counsel to withdraw her appearance. On January 22, 2020, the circuit court entered an order granting joint legal and physical custody of the children as specified.
According to the allegations in the petition, at some point after the January 22, 2020 award of custody, Collins telephoned Irving and “falsely identified” herself as calling from an elementary school about an issue with one of Irving‘s children. Irving allegedly provided Collins with personal information, believing that she was speaking with a school employee, before Collins “confessed to being ‘opposing counsel.‘” Bar Counsel charged that Collins engaged in dishonest conduct because, in the telephone call with Irving, she allegedly initially identified herself as associated with Irving‘s child‘s school, but later acknowledged that she was Davis‘s attorney.
In the petition, Bar Counsel did not indicate that Irving‘s report of the telephone call had been corroborated in any way оr refer to any investigation of Irving‘s complaint other than correspondence that Bar Counsel sent to Collins that went unanswered. Also, the petition did not indicate that there were any ongoing proceedings between Irving and Davis at the time of the alleged telephone call or provide any reason for the call. When the case was called for oral argument, in response to a question from this Court about the disposition of the Irving complaint, Senior Assistant Bar Counsel stated that the allegations in the petition concerning the Irving complaint were dismissed by Bar Counsel before the evidentiary hearing for “a number of reasons.”2
In the petition, Bar Counsel asserted that Collins had failed to respond to correspondence sent to her requesting a response to the Irving complaint. Bar Counsel did not dismiss this aspect of the petition.
On April 23, 2021, we designated the Honorable Julie R. Rubin (“the hearing judge”) of the Circuit Court for Baltimore City to hear this attorney discipline proceeding. On July 2, 2021, Collins filed an answer to the petition. Bar Counsel filed notices of service of discovery material, stating that Bar Counsel had served Collins with interrogatories, a request for admission of fact and genuineness of documents, a request for production of documents, and a notice of deposition. On July 30, 2021, Bar Counsel filed a motion for sanctions and a motion to shorten time based on Collins‘s failure to respond to the request for production of documents and failure to appear at a properly noticed deposition. Collins did not respond to the motion. On August 18, 2021, the hearing judge granted in part and denied in part the motion for sanctions. The hearing judge precluded Collins from calling witnesses or presenting documents as evidence on her behalf at the disciplinary hearing and precluded Collins from testifying at the hearing except as to mitigation.3
On August 23, 2021, the hearing judge conducted a hearing, at which Bar Counsel introduced thirty exhibits into evidence.4 Collins appeared at the hearing and testified as to mitigation. On September 14, 2021, the hearing judge issued an opinion including findings of fact and conclusions of law, concluding that Collins had violated MARPC 3.3(a)(1), 8.1(a), 8.1(b), 8.4(b), 8.4(c), 8.4(d), and 8.4(a). The hearing judge also found that Bar Counsel established the existence of numerous aggravating factors, and that Collins failed to establish the existence of any mitigating factors.
Oral argument in this Court was scheduled on January 11, 2022, and Collins failed to appear.5 For the below reasons, we indefinitely suspend Collins from the practice of law in Maryland.
BACKGROUND
The hearing judge found the following facts, which we summarize.
On June 20, 1991, this Court admitted Collins to the Bar of Maryland. From October 2019 to approximately June 15, 2020, Collins was employed by the Franklin Law Group. At all relevant times, Collins maintained the following contact information on file with Maryland‘s Attorney Information System (“AIS”): (1) a business address located at the Franklin Law Group on Ingleside Avenue; (2) a personal address located on St. Paul Street in Baltimore; (3) an alternative address of a P.O. Box in Towson; (4) a business e-
mail address at Franklin Law Group; and (5) a personal e-mail address at Yahoo.com. In January 2020, Collins used her personal Yahoo e-mail
Bar Counsel‘s Communications with Collins Concerning the Irving Complaint
On March 20, 2020, Irving filed a complaint against Collins with Bar Counsel. On March 31, 2020, Bar Counsel e-mailed Collins at her Yahoo address, attaching a copy of the complaint and a letter requesting a written response by April 21, 2020. Bar Counsel received an e-mail notification indicating that the March 31, 2020 e-mail had been delivered to Collins‘s inbox.
After receiving no response from Collins, on June 16, 2020, Bar Counsel wrote to Collins a second time requesting a response to the complaint. Bar Counsel sent the letter by first-class mail to Collins‘s business address at the Franklin Law Group on Ingleside Avenue and e-mailed a copy to her Yahoo address. Bar Counsel received an e-mail notification indicating that the e-mail had been delivered to Collins‘s inbox. Collins did not respond.
On August 5, 2020, Bar Counsel sent Collins a third letter requesting a response to the complaint. Bar Counsel mailed the letter to Collins‘s P.O. Box. Collins did not respond.
Collins‘s Suspension from the Practice of Law and Petition for Reinstatement
On June 8, 2020, in an unrelated disciplinary matter, Collins was suspended from the practice of law in Maryland for sixty days, effective July 8, 2020. As part of the opinion and order, Collins was ordered to “pay all costs as taxed by the Clerk of this Court, including costs of all transcripts, pursuant to
In a letter dated June 15, 2020, Bar Counsel advised Collins to review
On September 10, 2020, Collins filed in this Court a petition for reinstatement pursuant to
In the petition, Collins stated that she had complied with
In addition, the hearing judge found that Collins “misrepresented that she had complied with ‘all requirements and conditions specified in the suspension order[,]” as Collins did not pay the judgment assessed against her in the “June 8 Opinion and Order.” The hearing judge noted that at the disciplinary hearing, while testifying in mitigation, Collins advised that she did not pay the judgment because she could not afford it.
In the petition, Collins stated that, to the best of her “knowledge, information, and belief no[] complaints or disciplinary proceedings [were] currently pending against the attorney.” The hearing judge found that this was a misrepresentation because, as of the date Collins filed the petition, she had received multiple forms of correspondence from Bar Counsel concerning Irving‘s then-pending complaint. The hearing judge found that Collins had actual notice of the Irving complaint at the time that she filed the petition and that “she knowingly and intentionally misrepresented to the Court of Appeals that there were no pending complaints against her.”
On September 15, 2020, Bar Counsel e-mailed a letter to Collins at her Gmail address, attaching a copy of the Irving complaint and copies of Bar Counsel‘s correspondence to her from March 31, 2020, June 15, 2020, June 16, 2020, and August 5, 2020. Bar Counsel requested a response to the Irving complaint and advised Collins that, contrary to the representations she made in the petition for reinstatement, she had not provided Bar Counsel with the records required by
On the same day, Bar Counsel filed in this Court a motion for extension of time to respond to the petition for reinstatement, indicating that Collins failed to comply with
On September 21, 2020, Bar Counsel e-mailed Collins at her Gmail address, providing her a copy of the September 15, 2020 letter and attachments, and requesting a response. Bar Counsel received an e-mail notification indicating that the e-mail had been delivered to Collins‘s inbox. Collins did not respond to Bar Counsel.
On October 1, 2020, Bar Counsel filed an objection to the petition for reinstatement, arguing that the petition should not be granted due to Collins‘s failure to comply with
On October 15, 2020, Collins filed a response to the objection. In the response, Collins stated that she did not receive Bar Counsel‘s September 15, 2020 correspondence. Collins also stated: “[T]he first time I am aware that a Complaint has been filed against me by C.I. is with the filing of the AGS‘s [sic] Objection.” Collins stated: “I still cannot respond to the Complaint because the AGS‘s [sic] Exhibit is redacted and I cannot ascertain the Complainant.” The hearing judge found these statements to be misrepresentations. The hearing judge stated that she “accord[ed] no credibility to, and d[id] not believe, the proposition that Collins received Bar Counsel‘s objection via e[-]mail [at her Gmail address] but did not receive Bar Counsel‘s other communications sent to the same e[-]mail address.”
The following day, October 16, 2020, Bar Counsel e-mailed Collins at her Gmail address, providing her with an unredacted copy of the Irving complaint and requesting a response. Bar Counsel received an e-mail notification indicating that the e-mail had been delivered to Collins‘s inbox. On October 26, 2020, Bar Counsel received a letter from Collins dated October 22, 2020, responding to the Irving complaint. In the letter, Collins
stated that she “did not receive notice of an outstanding complaint against [her] until [she] read the Attorney Grievance Commission‘s response to” the petition for reinstatement. According to the hearing judge, Collins‘s statement was a knowing and intentional misrepresentation.
On October 21, 2020, this Court denied the petition for reinstatement. Collins remains suspended from the practice of law in Maryland.
STANDARD OF REVIEW
We review a hearing judge‘s findings of fact under the clearly erroneous standard. See
DISCUSSION
(A) Findings of Fact and Conclusions of Law
Neither party excepts to the hearing judge‘s findings of fact or conclusions of law. We conclude, with one variation, that the hearing judge‘s findings of fact are not clearly erroneous. To the extent the hearing judge found that payment of the costs assessed against Collins in connection with her earlier disciplinary proceeding was a condition of reinstatement and that Collins misrepresented that she had complied with the condition, the record does not support the finding.
As to the hearing judge‘s conclusions of law, to which Collins has not excepted, upon our de novo view of the record, we conclude that Collins has indeed violated MARPC 3.3(a)(1), 8.1(a), and 8.4(c), but we do not sustain a violation of the MARPC
MARPC 3.3(a)(1) (Candor Toward the Tribunal), 8.1(a) (False Statеment of Material Fact), and 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
MARPC 3.3(a)(1) provides that “[a]n attorney shall not knowingly [] make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the attorney[.]” In Attorney Grievance Comm‘n v. Steinhorn, 462 Md. 184, 197, 198 A.3d 821, 828 (2018), we stated that “[w]hat matters for purposes of finding an M[A]RPC 3.3(a)(1) violation is whether an attorney knows that the information he or she presents to the tribunal is incorrect.” (Citation omitted).
MARPC 8.1(a) provides that “[a]n applicant for . . . reinstatement to the bar, or an attorney . . . in connection with a disciplinary matter, shall not[] knowingly make a false statement of material fact[.]” In Attorney Grievance Comm‘n v. Page, 430 Md. 602, 634-35, 62 A.3d 163, 182-83 (2013), a case in which, among other things, an attorney was found to have knowingly made false statements of fact in a petition for reinstatement, we stated that we have held that MARPC “3.3 and 8.1 are violated when a lawyer makes an admission to a tribunal he or she knows is untrue and makes false statements to induce Bar
Counsel to believe the lawyer did not violate the M[A]RPC.” (Citations omitted). In Page, id. at 633, 62 A.3d at 181, while the attorney was suspended from the practice of law, he continued to represent a client and filed a motion on her behalf in the trial court. Yet, in a petition for reinstatement, the attorney stated that he had abided by what is now
MARPC 8.4(c) provides that “[i]t is professional misconduct for an attorney to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation[.]” In Steinhorn, 462 Md. at 198-99, 198 A.3d at 829, we observed that “there is significant overlap between M[A]RPC 3.3(a)(1) and 8.4(c). Indeed, a lawyer that violates M[A]RPC 3.3(a) generally violates M[A]RPC 8.4(c) as well.” (Cleaned up). In Attorney Grievance Comm‘n v. Ambe, 466 Md. 270, 295, 297, 218 A.3d 757, 771-72 (2019), we concluded that an attorney‘s statements to Bar Counsel and the Immigration Court, which violated MARPC 3.3(a)(1) and 8.1(a), “also constitute[d] violations of MARPC []8.4(c), as they [were] misrepresentations.”
In this case, the hearing judge did not clearly err in finding that Collins made knowing and intentional misrepresentations in the petition for reinstatement by stating that to the best of her knowledge no new disciplinary complaints were pending against her, and in her October 15, 2020 response to Bar Counsel‘s objection to her petition for reinstatement and October 22, 2020 letter to Bar Counsel, by stating in both that she did not know of the Irving complaint until receiving Bar Counsel‘s response to her petition for reinstatement, i.e., on more than one occasion, Collins falsely denied having knowledge of
the Irving complaint.
It is a far closer question as to whether Collins violated the charged MARPC by stating in the petition for reinstatement that she had complied with
In mitigation, I have never, until June the 8th, ever been disciplined. And when I was disciplined, I took every effort not to violate the Court again. I thought I was doing right. I did not -- I am remorseful, but I did not fully read and understand the law that required me to file an affidavit. But I thought that at the time, that giving the cases and allowing the clients to agree to some other attorneys to handle the cases was sufficient. That I had adequately prepared, prepared and made sure that the two clients that I have privately at the time were taken care of and were not left hanging.
In mitigation, it was not my intent to lie to the Court. In fact, I knew I had not filed the affidavit. And in reviеwing in mitigation, you‘ll see that I did not say that I had filed an affidavit. Because I knew I had not filed the affidavit as required.
Although Collins‘s testimony in mitigation does not foreclose the possibility that she was, as she indicated, confused about the requirements of
Generally, though, where an attorney expresses an opinion about a matter and the opinion is wrong or the attorney‘s logic is faulty, that is not a ground for a finding of dishonesty or a finding that the attorney has made a false statement. See Attorney Grievance Comm‘n v. Neverdon, 473 Md. 631, 699, 251 A.3d 1157, 1198 (2021) (“Where an attorney gives a response to Bar Counsel that is ‘more a matter of opinion than fact[,]’ we have concluded that the attorney‘s statement does not form the basis of a violation of MARPC 8.1(a).” (quoting Attorney Grievance Comm‘n v. Sperling, 472 Md. 561, 608, 248 A.3d 224, 251 (2021) (alteration in original))). In determining whether to seek the Commission‘s authorization for the filing of a petition for disciplinary or remedial action alleging that an attorney has knowingly made a false statement in connection with a petition for reinstatement, Bar Counsel must be watchful for cases in which attorneys are doing nothing more than filing a petition for reinstatement and stating their views with respect to having satisfied all of the necessary prerequisites as opposed to attorneys who are knowingly making false statements in a petition for reinstatement.
In this case, the hearing judge‘s finding that Collins made knowingly false statements of material fact to this Court in the petition for reinstatement concerning compliance with
addresses, and telephone numbers of all of the attоrney‘s current clients and (ii) identify, by client name, tribunal, and docket reference, all client matters pending in any court or other tribunal or agency[.]”6
- (i) the manner and extent to which the attorney has complied with the order and this Rule;
- (ii) all actions taken by the attorney pursuant to subsection (c)(2)(A) and (B) of this Rule;
- (iii) the names of all State and Federal jurisdictions in which and administrative agencies before which the attorney has been admitted to practice;
- (iv) the residence and other addresses of the attorney to which future communications may be directed;
- (v) the name and address of each insurer that provided malpractice insurance coverage to the attorney during the past five years, the policy number on each policy, and the inclusive dates of coverage; and
- (vi) a copy of each letter sent pursuant to subsection (c)(2)(B) of this Rule.8
There is no indication in the record that Collins complied with
We decline, however, to uphold the hearing judge‘s determination that Collins made a misrepresentation in the petition for reinstatement by stating that she had complied with the requirements and conditions of the June 8, 2020 suspension order as the evidence does not establish that
180, 182 (2020). In the opinion, in imposing the sanction, we stated that “[a] 60-day suspension under these circumstances is appropriate. The suspension shall begin 30 days after the date on which this opinion is filed.” Id. at 153, 229 A.3d at 182. There were no terms or conditions of suspension specified in the opinion. In the mandate, as is customary in attorney disciplinary cases, and in most cases resolved by this Court with a written opinion, costs were assessed. In Collins‘s case, the mandate stated: “It is so ordered; Respondent shall pay all costs as taxed by the Clerk of this Court, including costs of all transcripts, pursuant to
The hearing judge found that, at the disciplinary hearing, Collins admitted that, at the time she filed the petition for reinstatement, she knew she had not paid the court costs assessed against her. In mitigation, as the hearing judge noted, Collins testified that she failed to pay the costs assessed against her because she could not afford to do so at the time. In addition, however, Collins testified: “I didn‘t pay the Attorney Grievance Commission‘s, but I did not take that as having to comply with the Suspension Order.” In her opinion, the hearing judge did not address whether the payment of costs was indeed a requirement or condition of Collins‘s suspension or whether at the time that she filed the petition for reinstatement Collins, in fact, believed the payment of costs to be a requirement or condition of her suspension and had nonetheless filed the petition falsely stating that she
had fulfilled the condition. It appears that the hearing judge implicitly accepted Bar Counsel‘s representation that payment of the costs was a condition or requirement of Collins‘s suspension.the attorney has complied with all financial obligations required by these Rules or by court order, including (i) reimbursement of all amounts due to the attorney‘s former clients, (ii) payment of restitution which, by court order, is due to the attorney‘s former clients or аny other person, (iii) reimbursement of the Client Protection Fund for all claims that arose out of the attorney‘s practice of law and satisfaction of all judgments arising out of such claims, and (iv) payment of all costs assessed by court order or otherwise required by law.
Next, in concluding that Collins violated the MARPC, the hearing judge found that Collins falsely stated in the petition that to the best of her “knowledge, information, and belief” there were no disciplinary complaints pending against her, despite Bar Counsel‘s correspondence to her on numerous occasions concerning the Irving complaint. This aspect of the hearing judge‘s conclusions of law is easily supported by clear and convincing evidence. The hearing judge‘s findings of fact and the record show that, as of September 10, 2020, the date that Collins filed the petition, Bar Counsel had sent Collins multiple letters and e-mails concerning the Irving complaint. On March 20, 2020, Irving filed the complaint against Collins with Bar Counsel. Over the course of more than four months, before Collins filed the petition for reinstatement, Bar Counsel sent Collins three letters about the complaint—on March 31, 2020, June 16, 2020, and August 5, 2020. In the objection to the petition for reinstatement, which was admitted into evidence at the disciplinary hearing, Bar Counsel outlined and attached as exhibits the various correspondence sent to Collins with respect to the Irving complaint both before and after the petition for reinstatement was filed—on March 31, 2020, June 16, 2020, August 5, 2020, September 15, 2020, and September 21, 2020.
On March 31, 2020, Bar Counsel sent a letter to Collins at her Yahoo e-mail address, the personal e-mail address on file with AIS, attaching a copy of the Irving complaint and requesting a written response by April 21, 2020. The letter was addressed to Collins at the Franklin Law Group and stated that it was sent by e-mail only to Collins at her Yahoo e-mail address. The letter advised that Bar Counsel was making a preliminary inquiry into the Irving complaint. Bar Counsel received a confirmation that the e-mail had been delivered to Collins‘s Yahoo e-mail address stating the following: “Delivery to these recipients or groups is complete, but no delivery notification was sent by the destination server: [Collins‘s Yahoo e-mail address].” (Paragraph break omitted).
In response to Bar Counsel‘s objection, Collins stated that she did not receive the March 31, 2020 letter from Bar Counsel
On June 16, 2020, Bar Counsel sent Collins a second letter, enclosing a copy of the Irving complaint as well as the March 31, 2020 correspondence, and requested a written response by June 30, 2020. In the letter, Bar Counsel stated that if Collins failed to respond by that date, Bar Counsel might docket the complaint for investigation without a response. The letter was sent by first-class mail to Collins at the Franklin Law Group, her business mailing address on file with AIS, and e-mailed to Collins at her Yahoo e-mail address. Bar Counsel received the same notification indicating that the June 16, 2020 e-mail had been delivered to Collins‘s Yahoo e-mail address.
On August 5, 2020, Bar Counsel wrote to Collins and advised that the Irving complaint had been docketed for investigation, enclosed a copy of the complaint, and requested a written response by August 24, 2020.10 The letter was sent to Collins at her P.O. Box in Towson, the alternative mailing address on file with AIS.
The hearing judge determined that Collins received Bar Counsel‘s correspondence concerning the Irving complaint, “that she had actual notice and knowledge of its pendency at the time of her petition, and that her sworn misrepresentation to the contrary was knowing and intentional.” The hearing judge specifically found that Collins received Bar Counsel‘s e-mails of March 31, 2020 and June 16, 2020 that were sent to Collins‘s Yahoo e-mail address. The hearing judge noted that, at the disciplinary hearing, Collins testified in mitigation that she maintained the Yahoo address until June 2020 and forwarded e-mails from that address to her work e-mail address. The hearing judge apparently determined that Bar Counsel‘s receipt of e-mail notifications indicating that the e-mails were delivered, along with Collins‘s acknowledged use of the Yahoo e-mail address, provided a sufficient basis on which to find that Collins received the e-mails and would have been aware of their content. In the absence of any other evidence, this was a reasonable inference for the hearing judge to make.
It would be reasonable to infer that an attorney in Collins‘s position, who identified the Yahoo address on file with AIS as her personal e-mail address and who had used the Yahoo address to communicate with Bar Counsel just months earlier (in January 2020) in an unrelated disciplinary matter, would pay attention to messages delivered to that inbox, particularly messages from Bar Counsel. The hearing judge‘s conclusion that Collins violated MARPC 3.3(a)(1) and 8.4(c) by knowingly making а false statement in the petition for reinstatement that there were no pending disciplinary complaints against her is supported by clear and convincing evidence.
The hearing judge also found that Collins knowingly made false statements of fact in the response to Bar Counsel‘s objection to the petition for reinstatement
With each of the e-mail deliveries to Collins, first to her Yahoo address and then to her Gmail address, Bar Counsel received a receipt stating that delivery to the recipient was complete, but no delivery notification was sent by the destination server. In the absence of evidence to the contrary, it was reasonable for the hearing judge to infer that Bar Counsel‘s receipt of e-mails stating that the deliveries were complete, rather than that they were undeliverable or returned, meant that Collins had received the e-mail messages. Based on the evidence, the hearing judge‘s conclusion that Collins made false statements in the response to Bar Counsel‘s objection, in violation of MARPC 3.3(a)(1) and 8.4(c), and in the October 22, 2020 letter to Bar Counsel, in violation of MARPC 8.1(a) and 8.4(c), by stating that she had not received notice of the pending Irving complaint until she received Bar Counsel‘s objection to the petition for reinstatement is supported by clear and convincing evidence.
MARPC 8.1(b) (Failing to Respond to Lawful Demand for Information)
MARPC 8.1(b) provides:
An applicant for . . . reinstatement to the bar, or an attorney . . . in connection with a disciplinary matter, shall not . . . knowingly fail to respond to a lawful demand for information from a[] disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by [MARPC] 1.6[].
An attorney violates MARPC 8.1(b) by failing to respond to Bar Counsel‘s lawful requests for information and documentation. See Attorney Grievance Comm‘n v. Hensley, 467 Md. 669, 686, 226 A.3d 41, 51 (2020); see also Attorney Grievance Comm‘n v. Gracey, 448 Md. 1, 26-27, 136 A.3d 798, 813-14 (2016) (We concluded that an attorney violated MARPC 8.1(b) where the attorney “failed to timely respond to the initial complaint and failed to provide copies of the client file for the [clients] and trust account records.“).
In this case, between March and September 2020, Bar Counsel sent five lawful requests for information to Collins on March 31, 2020, June 16, 2020, August 5, 2020, September 15, 2020, and September 21, 2020, and Collins failed to respond to any of the requests. The record supports
MARPC 8.4(b) (Criminal Act)
“It is professional misconduct for an attorney to . . . commit a criminal act that reflects adversely on the attorney‘s honesty, trustworthiness or fitness as an attorney in other respects[.]” MARPC 8.4(b). To establish a violation of MARPC 8.4(b), “Bar Counsel must prove two elements by clear and convincing evidence: (1) [the attorney] committed a criminal act; and (2) that criminal act reflects adversely on [the attorney‘s] honesty, trustworthiness or fitness as a lawyer in other respects.” Attorney Grievance Comm‘n v. Katz, 443 Md. 389, 403, 116 A.3d 999, 1007 (2015) (citations omitted). “We have consistently held that so long as there is clear and convincing evidence of facts constituting a criminal offense, there need not be a criminal conviction in order to find that an attorney violated M[A]RPC 8.4(b).” Id. at 403, 116 A.3d at 1008 (cleaned up).
Under
Although Collins was not charged with perjury, clear and convincing evidence demonstrates that Collins committed the criminal offense by affirming under the penalties of perjury that the content of the petition for reinstatement was true to the best of her knowledge, information, and belief. Arguably, Collins‘s affirmation under the penalties of perjury, i.e., the false oath, may have been provided as a result of confusion or mistake and not willfully done. However, as Collins was precluded from testifying at the disciplinary hearing except as to mitigation, based on the exhibits admitted into evidence, the hearing judge‘s findings that Collins‘s “statements were false when made and she knew they were false when made[,]” are not clearly erroneous. As such, clear and convincing evidence supports the hearing judge‘s conclusion that Collins violated MARPC 8.4(b) by committing a criminal act that reflects adversely on her honesty and trustworthiness.
MARPC 8.4(d) (Conduct that is Prejudicial to the Administration of Justice)
“It is professional misconduct for an attorney to . . . engage in conduct that
Clear and convincing evidence supports the hearing judge‘s conclusion that Collins violated MARPC 8.4(d). Collins‘s conduct, including knowingly making false statements of fact in connection with the petition for reinstatement and her failure to respond to Bar Counsel‘s lawful requests for information, would negatively impact the perception of the legal profession of a reasonable member of the public.
MARPC 8.4(a) (Violating the MARPC)
“It is professional misconduct for an attorney to[] violate . . . the” MARPC. MARPC 8.4(a). Clear and convincing evidence supports the hearing judge‘s conclusion that Collins violated MARPC 8.4(a). As discussed above, Collins violated MARPC 3.3(a)(1), 8.1(a), 8.1(b), 8.4(b), 8.4(c), and 8.4(d).
(B) Sanction
Bar Counsel recommends that we disbar Collins, who has not filed a recommendation for sanction.
In Slate, 457 Md. at 646-47, 180 A.3d at 155-56, we stated:
This Court sanctions a lawyer not to punish the lawyer, but instead to protect the public and the public‘s confidence in the legal profession. This Court accomplishes these goals by: (1) deterring other lawyers from engaging in similar misconduct; and (2) suspending or disbarring a lawyer who is unfit to continue to practice law.
In determining an appropriate sanction for a lawyer‘s misconduct, this Court considers: (1) the M[A]RPC that the lawyer violated; (2) the lawyer‘s mental state; (3) the injury that the lawyer‘s misconduct caused or could have caused; and (4) aggravating factors and/or mitigating factors.
Aggravating factors include: (1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple violations of the M[A]RPC; (5) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with rules or orders of the disciplinary agency; (6) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (7) a refusal to acknowledge the misconduct‘s wrongful nature; (8) the victim‘s vulnerability; (9) substantial experiencе in the practice of law; (10) indifference to making restitution or rectifying the misconduct‘s consequences; (11) illegal conduct, including that involving the use of controlled substances; and (12) likelihood of repetition of the misconduct.
Mitigating factors include: (1) the absence of prior attorney discipline; (2) the absence of a dishonest or selfish motive; (3) personal or emotional problems; (4) timely good faith efforts to make restitution or to rectify the misconduct‘s consequences; (5) full and free disclosure to Bar Counsel or a cooperative attitude toward the attorney discipline proceeding; (6) inexperience in the practice of law; (7) character or reputation; (8) a physical disability; (9) a mental disability or chemical dependency, including alcoholism or drug abuse, where: (a) there is medical evidence that the lawyer is affected by a chemical dependency or mental disability; (b) the chemical dependency or mental disability caused the misconduct; (c) the lawyer‘s recovery
from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (d) the recovery arrested the misconduct, and the misconduct‘s recurrence is unlikely; (10) delay in the attorney discipline proceeding; (11) the imposition of other penalties or sanctions; (12) remorse; (13) remoteness of prior violations of the M[A]RPC; and (14) unlikelihood of repetition of the misconduct.
(Cleaned up).
Aggravating and Mitigating Factors
In this case, in addition to the violations of the MARPC, the hearing judge found that the evidence established six aggravating factors: prior attorney discipline, a dishonest or selfish motive, a pattern of misconduct, bad faith obstruction of the disciplinary process, substantial experience in the practice of law, and illegal conduct. These determinations are suрported by the record. Collins plainly had a history of prior attorney discipline and made dishonest and false statements in the petition for reinstatement, her response to Bar Counsel‘s objection, and the October 22, 2020 letter to Bar Counsel while seeking reinstatement. During Bar Counsel‘s investigation of the Irving complaint, Collins knowingly and intentionally failed to respond to five separate requests for information.14 In addition, Collins has been admitted to the Bar of Maryland since 1991. And, as the hearing judge found, Collins committed perjury by affirming under the penalty of perjury that the content of the petition for reinstatement was true “when she knew at the time that her affirmation was materially false.”
As to mitigating factors, the hearing judge found that Collins failed to prove any mitigation by a preponderance of the evidence. For instance, although Collins testified that she believed she had done what was necessary by passing on her two existing clients to another attorney, the hearing judge stated that she did not find Collins‘s testimony credible or persuasive on any recognized mitigating factor. Collins did not file any exception to the hearing judge‘s findings of fact. Accordingly, there is no basis on which to determine that any mitigating factors are present.
In determining the appropriate sanction in this case, we begin by looking at the seminal case of Attorney Grievance Comm‘n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001), which established the standard for determining the sanction in cases of dishonest conduct. In Vanderlinde, the attorney admitted having violated MARPC 8.4(a), (b), and (c) and the undisputed facts demonstrated:
The [attorney], over a period of time, while working outside of the profession of law, took (embezzled, stole, misappropriated) $3,880.67 from her employer, King‘s Contrivance Community Association (Association). She used the money for her own purposes. The thefts continued even after she had given her employer nоtice that she would be resigning to accept a legal position with a law firm. She had replaced the monies by the time of the cessation of her employment, and her thefts initially remained undetected by her employer.
Id. at 381, 773 A.2d at 465-66. In defense, the attorney asserted that “the pressures of her life” and mental health issues, including periods of depression, mitigated against disbarment. Id. at 381, 773 A.2d at 466.
In Vanderlinde, id. at 389-418, 773 A.2d at 471-88, we discussed the history of disciplinary matters concerning dishonest conduct dating back to 1957, and identified cases involving sanctions ranging from suspension to disbarment. We observed that in some instances we had stated that disbarment was the appropriate sanction for intentional dishonest conduct absent compelling extenuating circumstances. See id. at 413, 773 A.2d at 485. After engaging in this review, we held:
[I]n 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 with the M[A]RPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law, or otherwise.
Id. at 413-14, 773 A.2d at 485 (emphasis omitted). We explained that we will generally accept a hearing judge‘s findings concerning the existence and effect of certain mental conditions, but “the question of whether such findings are ‘compelling extenuating circumstances,’ justifying a lesser sanction in cases of dishonesty, deceit, fraud, intentional misappropriatiоn, stealing, and the like, are for this Court to answer.” Id. at 414, 773 A.2d at 485. We stated that our “position . . . is intended to apply to cases involving dishonesty, stealing, intentional misappropriation, fraud, serious criminal offenses, and the like; it is not intended to restrict consideration of alcoholism, mental impairments, and the like in other situations.” Id. at 414, 773 A.2d at 485-86.
We concluded that, under these standards, the circumstances of the case were “not so compelling.” Id. at 414, 773 A.2d at 485. The evidence demonstrated that, although the attorney “had personal problems, some of which were severe, there [was] little evidence that she was not able to handle the every day economic affairs of the life to which she had, in a manner of
We stated that, in attorney disciplinary matters:
[W]e will not in the future attempt to distinguish between degrees of intentional dishonesty based upon convictions, testimonials or other factors. 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.
Id. at 418, 773 A.2d at 488. We stated that “[d]isbarment ordinarily should be the sanction for intentional dishonest conduct.” Id. at 418, 773 A.2d at 488. We explained that, when considering cases in which an attorney‘s misconduct relates to honesty, especially in cases “where there is any type of theft or intentional misappropriation of funds or other serious criminal conduct,” a “root cause” standard applies:
[T]here . . . needs to be almost conclusive, and essentially uncontroverted evidence that would support a hearing judge‘s 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.
The mere fact that an attorney steals or commits other serious criminal conduct, coupled only with evidence of mental impairment, whether arising out of alcoholism or out of other factors, that does not arise to the level we have mentioned above, generally will not be sufficient to establish that degree of mental incompetency that warrants a lesser sanction than the sanction that is otherwise appropriate for such misconduct involving stealing, intentional misappropriation of the funds of another, and the like, or other serious criminal conduct.
Id. at 418-19, 773 A.2d at 488. In Vanderlinde, applying the principles above, we concluded that disbarment was the appropriate sanction for the attorney‘s misconduct. See id. at 419, 773 A.2d at 488.
Over the years, the standard announced in Vanderlinde has been relied upon in numerous cases resulting in a sanction of disbarment.15 Recently, in Attorney Grievance Comm‘n v. Miller, 467 Md. 176, 183, 238, 223 A.3d 976, 980, 1012 (2020), we disbarred an attorney who violated MARPC 1.3, 1.4(a) and (b), 1.5(a), 8.1(a) and (b), and 8.4(a), (b), and (c). In violation of MARPC 8.1(a) and 8.4(c), the attorney misrepresented to Bar Counsel that she had provided a client with monthly invoices,
In considering the appropriate sanction, we noted two mitigating factors—character and reputation and lack of a prior disciplinary record. See id. at 225, 223 A.3d at 1004. The attorney argued that post-traumatic stress disorder (“PTSD“) “was the underlying cause of her misconduct and that the hearing judge erred by not finding her PTSD a factor in mitigation” and urged “this Court to expand the standard previously announced in Vanderlinde, to encompass mental health disorders that cause only temporary debilitation.” Miller, 467 Md. at 227, 223 A.3d at 1005 (citation omitted).
We concluded that the Vanderlinde standard was implicated by the attorney‘s “intentionally dishonest conduct—through both her misrepresentations to her client and to Bar Counsel[,]” and concluded that her PTSD was not a mitigating factor because it failed “to meet the ‘root cause’ standard prom[ulg]ated in Vanderlinde and its progeny.” Miller, 467 Md. at 228-29, 223 A.3d at 1006-07 (citation omitted). We concluded that the attorney‘s alleged mitigating factor fell short of the Vanderlinde standard and we declined to expand the standard. See Miller, 467 Md. at 231-33, 223 A.3d at 1008-09. In determining that disbarment was the appropriate sanction, we reiterated that, under Vanderlinde, “in the absence of compelling extenuating mitigation, disbarment is the appropriate sanction in order to protect the public and the public‘s confidence in the legal system.” Miller, 467 Md. at 238, 223 A.3d at 1012 (cleaned up).
Other Relevant Case Law
Despite the standards announced in Vanderlinde and recently repeated in Miller, there have been an increasing number of cases involving intentional dishonesty in which we have not imposed the sanction of disbarment. These are examples that illustrate the occurrence. In Attorney Grievance Comm‘n v. Sperling, 432 Md. 471, 495, 498, 69 A.3d 478, 492, 494 (2013), we indefinitely suspended an attorney who violated MARPC 1.1, 1.2(a), 1.3, 1.4(a) and (b), 3.3(a), 8.4(a), 8.4(c), and 8.4(d). In Sperling, after a client‘s case was dismissed on two occasions, the attorney failed to inform the client of the dismissals and, nearly eight years later, after the client inquirеd into the status of the case, the attorney advised the client that the case was still active and that a court clerk was working on it. See id. at 475-76, 69 A.3d at 480. The attorney had failed to immediately file a motion to reopen the case after dismissal and failed to research whether there was a way to avoid the running of the statute of limitations or whether there was a basis to argue that the statute of limitations had not tolled. See id. at 491, 69 A.3d at 489. Less than two months after the client inquired about the status of the case, the attorney‘s law office filed a motion to reopen the case and, a few weeks after that, filed a supplemental motion to reopen the case, and both motions were denied. See id. at 476-77, 69 A.3d at 480-81.
In Attorney Grievance Comm‘n v. Shapiro, 441 Md. 367, 382-94, 408, 108 A.3d 394, 403-10, 418 (2015), we indefinitely suspended an attorney who violated MARPC 1.2(a), 1.3, 1.4, 1.8(a), 1.16(a), 8.4(a), 8.4(c), and 8.4(d). In Shapiro, the attorney concealed from a client the status of a medical malpractice case for five years by leading the client to believe that the case was active when the case had been dismissed by the Health Claims Arbitration Office because the attorney failed to file a Certificate of Merit. See id. at 376, 108 A.3d at 399-400. By the time the claim was dismissed, the statute of limitations for the action had run. See id. at 376, 108 A.3d at 399. The attorney failed to inform the client of the dismissal or the expiration of the limitations period and instead led the client to believe that the case was still active. See id. at 376, 108 A.3d at 399-400. At one point, the attorney advised the client that the case had been settled when no settlement had occurred. See id. at 376, 108 A.3d at 400. After the client filed a complaint, the attorney entered into a settlement agreement with the client, personally agreeing to pay an amount that he purportedly believed the client would have received if the case had resulted in a settlement. See id. at 377, 108 A.3d at 400. With respect to the attorney‘s violation of MARPC 8.4(c), we stated: “Direct misrepresentations, such as the one that [the attorney] in this matter made to [the client] when he led her to believe that her case was still active, violate M[A]RPC 8.4(c). . . . [The attorney] continued to misrepresent the status of [the client]‘s case to her for approximately five years.” Id. at 394, 108 A.3d at 410.
In determining the appropriate sanction, we compared the attorney‘s misconduct to that of the attorney in Sperling, 432 Md. 471, 69 A.3d 478, explaining that, although the attorney also violated MARPC 1.8 (Conflict of Interest), “his misrepresentations to [the client] were for a shorter period of time than those in Sperling; he made no misrepresentations to a court; and has not attempted to downplay the significance of his violations.” Shapiro, 441 Md. at 398, 108 A.3d at 412. We observed that the attorney‘s misrepresentations “related to one client and one case” and that his settlement with the client, “although handled improperly, indicated a willingness to attain some sort of restitution.” Id. at 399, 108 A.3d at 413. We stated that “generally,”
we tend to favor disbarment when attorneys’ misrepresentations and deceitful actions are committed against multiple clients, are paired with violations of the rules pertaining to the proper handling of client or third party money or property, or are joined with a large number of other violations (whether of the M[A]RPC or the Maryland Code).
Id. at 399-400, 108 A.3d at 413. We observed that, “[w]hen an attorney‘s misrepresentations are paired with violations of the M[A]RPC provisions regarding financial or other property matters, the sanction is most often disbarment.” Id. at 401, 108 A.3d at 414.
On the topic of “mitigating factors and extenuating circumstances,” we stated that the hearing judge found that the attorney had offered “very little in the way of mitigation, other than his own testimony that he has faithfully complied with the terms of his settlement agreement with” the client. Id. at 406, 108 A.3d at 417. We determined that the attorney‘s misconduct was aggravated by, among other things, previous attorney discipline in the
form of a Commission reprimand, a pattern of misconduct, multiple violations of the MARPC, and substantial experience in the practice of law. See id. at 407-08, 108 A.3d at 417-18. In the end, we stated: “Bearing all of the foregoing analysis in mind, we conclude ultimately that [the attorney]‘s misconduct warrants the sanction of an indefinite suspension.” Id. at 408, 108 A.3d at 418.
In Attorney Grievance Comm’n v. Hecht, 459 Md. 133, 148-55, 158, 184 A.3d 429, 438-42, 444 (2018), we indefinitely suspended, with the right to petition for reinstatement after twelve months, an attorney who violated
In determining the appropriate sanction, we noted four aggravating factors: prior attorney discipline in the form of an indefinite suspension, a pattern of misconduct, multiple violations, and substantial experience
upon being suspended, turned away prospective clients and attеmpted to inform all of his current clients that he was suspended and could no longer represent them. When he discovered that his attempted suspension communication to the [clients at issue] had failed, he made the wrong decision, predicated on worry and a sense of loyalty for his wife‘s friends, in continuing to act as their attorney while attempting to find alternative counsel for them. When the [clients]’ lawsuit was dismissed, [the attorney] financially reimbursed them.
In Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 287, 185 A.3d 76, 130 (2018), we continued the indefinite suspension of the attorney discussed in the case above. In this case, the attorney violated
Although [the attorney] may not have acted with a “selfish” motive—indeed he did not benefit from any of his misconduct—[the attorney] made a substantial misrepresentation in failing to disclose the number of checks he had deposited or withdrawn. [The attorney]‘s extensive communications with Bar Counsel regarding his efforts to be reinstated, and misrepresentations in documents submitted to this Court do not diminish the dishonesty attributable to the misrepresentations in those communications.
Id. at 276-77, 185 A.3d at 124. The attorney‘s misconduct was mitigated by positive reputation in the community, a cooperative attitude toward the attorney discipline proceeding, and remorse. See id. at 279-80, 185 A.3d at 126. We noted that the attorney did not misappropriate funds or personally profit from his misconduct in this case. See id. at 280, 185 A.3d at 126.
In concluding that continuing the attorney‘s indefinite suspension was the appropriate
In Steinhorn, 462 Md. at 191, 194, 198 A.3d at 824, 827, we indefinitely suspended, with the right to apply for reinstatement no sooner than six months after the effective date of the suspension, an attorney who violated
In determining the appropriate sanction, we acknowledged that “[w]e have imposed a range of sanctions for dishonest and deceitful conduct, from reprimand to disbarment, with a suspension (be it definite or indefinite) falling somewhere between the two.” Id. at 205, 198 A.3d at 833 (citations omitted). We stated that disbarment is appropriate, “typically as a matter of course, when an attorney is willfully dishonest for personal gain[,]” but that “a reprimand may be appropriate when, among other reasons, there is no specific intent and the charged attorney is either a neophyte who expeditiously admits to misconduct, or lacks a disciplinary record.” Id. at 206, 198 A.3d at 833 (citations omitted). In concluding that an indefinite suspension was warranted, we explained:
Here, neither disbarment nor a reprimand is suitable. On the one hand, [the attorney] did not exhibit a specific intent to deceive. He knowingly submitted inaccurate information to the court, but he did not purposefully do so for personal gain, and no client or the court suffered any palpable harm, rendering disbarment unsuitable. On the other hand, [the attorney] is an experienced attorney, with a prior disbarment. Further, in the present disciplinary action, we have concluded that [the attorney] committed serious violations of the M[A]RPC, rendering a reprimand inadequate. . . . Although [the attorney] may not have acted with a selfish motive or harmed any client, neither negates the fact that he knowingly submitted false information to the court, which any reasonable attorney
with his extensive experience handling debt collection matters would have known to avoid.
Id. at 206-08, 198 A.3d at 833-35 (citations omitted).
In Attorney Grievance Comm’n v. Singh, 464 Md. 645, 674-77, 682, 212 A.3d 888, 906-07, 910 (2019), we suspended for sixty days an attorney who violated numerous MARPC, including
Bar Counsel recommended an indefinite suspension. See id. at 678, 212 A.3d at 907. In determining the appropriate sanction, we observed that the hearing judge had noted that there was no evidence that the attorney “misappropriated any client funds or failed to devote client funds to their intended purpose.” Id. at 679, 212 A.3d at 908 (footnote omitted). We concluded that a sixty-day suspension was warranted given the absence of client harm, the benefit the attorney provided to the client at issue through his representation, and the important nature of the attorney’s practice (serving clients of moderate means in a practice largely dedicated to immigration law). See id. at 681-82, 212 A.3d at 909-10.
In Attorney Grievance Comm’n v. Riely, 471 Md. 458, 495-500, 507, 242 A.3d 206, 228-31, 235 (2020), we indefinitely suspended, with the right to apply for reinstatement no sooner than one year, an attorney who violated
In determining the appropriate sanction, we noted that the attorney “apparently did not profit financially from either of the[] representations” at issue. Id. at 502, 242 A.3d at 232 (footnote omitted). We concluded that the attorney displayed a selfish or dishonest motive with respect to the violations involving misrepresentations. See id. at 502, 242 A.3d at 232. We stated that the attorney‘s misconduct involved the attorney “misleading not only his client but also an immigration enforcement agent and ultimately Bar Counsel” and that such “misleading statements amount[ed] to misrepresentations” that we could not ignore in determining the appropriate sanction. Id. at 505, 242 A.3d at 234.
That said, we explained that, although the attorney‘s misconduct was serious, it
was not motivated by a lawyer‘s decision to profit at the expense of his clients, but began as a failure to attend to the details of the matters he had agreed to undertake on behalf of those clients and, most seriously, his effort to minimize and conceal his own mistakes in that regard.
Id. at 505, 242 A.3d at 234. We also stated that we could not ignore the attorney‘s long and distinguished career in immigration law. See id. at 505, 242 A.3d at 234. We concluded that an indefinite suspension with the right to apply for reinstatement no sooner than one year was appropriate given various mitigating factors present. See id. at 506-07, 242 A.3d at 234-35.
In Attorney Grievance Comm’n v. Keating, 471 Md. 614, 648-50, 653, 243 A.3d 520, 541-42, 544 (2020), we indefinitely suspended, with the right to reapply in six months, an attornеy who violated
Nonetheless, we concluded that an indefinite suspension with a six-month sit-out period was appropriate and explained that we declined to impose disbarment due to the attorney‘s “genuine attempt to further the client‘s wishes, absence of prior discipline and high moral character.” Id. at 653, 243 A.3d at 544. We determined that the attorney did not violate the MARPC “to enrich herself, but [rather] to execute the
Recently, in Attorney Grievance Comm’n v. Johnson, 472 Md. 491, 502-03, 533-46, 247 A.3d 767, 774, 792-99 (2021), we indefinitely suspended, with the right to reapply after one year, an attorney who violated
We stated that, although the attorney “may not have misappropriated funds on his own accord, he acted in a deceitful manner by selfishly lying to his clients to prolong the time in which he had to remit their settlement funds.” Id. at 547-48, 247 A.3d at 801. We concluded that, in cases involving misappropriation of client funds, disbarment is warranted absent compelling extenuating circumstances justifying a lesser sanction, but that, “where there is no finding of intentional misappropriation and where the misconduct did not result in financial loss to any of the attorney‘s clients, an indefinite suspension ordinarily is the appropriate sanction.” Id. at 550, 247 A.3d at 802 (cleaned up).
Principles Developed
Given this long line of cases in which we have not imposed the sanction of disbarment, it is time to expressly recognize that our holding in Vanderlinde no longer exclusively sets the standard for imposition of the sanction in cases involving intentional dishonesty. As these cases readily demonstrate, in numerous attorney disciplinary cases involving intentional dishonesty under
What can be gleaned from the sanctions imposed in cases involving intentional dishonesty post-Vanderlinde in recent years,
Sanction in this Case
With this in mind, we conclude that an indefinite suspension is the appropriate sanction for Collins‘s misconduct. Although Collins made statements that were determined to be knowingly false and intentionally dishonest, we are not persuaded that disbarment is warranted. Collins was found, among other things, to have falsely advised this Court and Bar Counsel that she did not receive the Irving complaint, but Bar Counsel ultimately dismissed the allegations in the petition for disciplinary or remedial action pertaining to the complaint. The Irving complaint stemmed from litigation in which Collins had represented an opposing party in a child custody matter and consisted of the complainant‘s version alone of a telephone conversation with Collins. Collins‘s misrepresentations with respect to not hаving received the Irving complaint did not cause injury to a client or involve theft or misuse of funds.
Although it was reasonable for the hearing judge to determine that Collins received Bar Counsel‘s e-mails and letters concerning the Irving complaint, this is not one of the most egregious cases of an attorney being found to have knowingly made false statements to the Court or to Bar Counsel. Giving effect to the hearing judge‘s findings of fact—which are supported by the exhibits admitted into evidence—means that Collins received Bar Counsel‘s correspondence (both e-mails and mailed letters) about the Irving complaint, and nonetheless filed a petition for reinstatement, advising the Court that there were no complaints pending against her, while knowing that Bar Counsel had notified her otherwise. This misconduct is as perplexing and inexplicable as it was dishonest. Although this case involves the making of false statements, Collins‘s misconduct in not acknowledging receipt of the Irving complaint is more akin to that of the attorney in Attorney Grievance Comm’n v. Butler, 441 Md. 352, 361, 107 A.3d 1220, 1226 (2015), who “seemingly ‘stuck his head in the sand’” and did not promptly respond to correspondence from Bar Counsel, “apparently out of an irrational fear of Bar Counsel.”
Insofar as Collins‘s false statements as to her compliance with
Insofar as a sanction for a violation of
In addition, in some instances of an attorney failing to file income tax returns, we have not imposed a sanction of disbarment. In Attorney Grievance Commʼn v. O‘Toole, 379 Md. 595, 614, 618, 843 A.2d 50, 61, 64 (2004), we suspended for thirty days an attorney who violated
In this case, we conclude that, although Collins was found to have engaged in intentional dishonest conduct by making obvious
For all of the reasons set forth herein, we indefinitely suspend Collins from the practice of law in Maryland. The suspension will be effective immediately.
IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO
Notes
(Paragraph break omitted).So before I provide a very brief opening, I just, for both [] Collins‘[s] benefit and the Court‘s benefit, Petitioner is formally withdrawing all charges associated with [Collins]‘s communication with the complainant, [] Irving [], including withdrawing the Petitioner‘s allegation that [] Collins violated [MARPC] 4.1. This was in Petitioner‘s pre-trial statement. But just so that everybody‘s on the same page.
Pursuant to
Also on September 21, 2020, Bar Counsel sent via FedEx overnight delivery to Collins at the St. Paul Street address that she had identified as her mailing address in the petition for reinstatement a letter enclosing the September 15, 2020 correspondence and requesting that Collins provide the requested information and documentation as soon as possible. Delivery was attempted on September 22, 23, 24, 25, 28, and 29, 2020. In the response, Collins stated that she was unaware of any FedEx delivery or attempted delivery between September 22 and 29, 2020.
A person may not willfully and falsely make an oath or affirmation as to a material fact:
(1) if the false swearing is perjury at common law;
(2) in an affidavit required by any state, federal, or local law;
(3) in an affidavit made to include a court or officer to pass an account or claim;
(4) in an affidavit required by any state, federal, or local government or governmental official with legal authority to require the issuance of an affidavit; or
(5) in an affidavit or affirmation made under the Maryland Rules.
The criminal pattern jury instruction for perjury by affidavit, i.e., deliberately making a false affidavit, provides that to convict the defendant of perjury by affidavit, the State must prove, among other things, “that the defendant provided the false information willfully, that is, intentionally, rather than as a result of confusion or reasonable mistake[.]” MPJI-Cr 4:26.1.
In addition, the hearing judge found that, during this attorney disciplinary matter, Collins “continued to fail to cooperate,” as shown by her failure to respond to the request for production of documents and her failure to appear at deposition. In Attorney Grievance Comm‘n v. Young, 473 Md. 94, 129, 248 A.3d 996, 1016 (2021), we stated that the aggravating factor of bad faith obstruction of the attorney discipline proceeding has been found “when attorneys knowingly failed to respond to Bar Counsel‘s requests for documents, attend evidentiary hearings, submit written responses, or otherwise fail to comply with the rules or lawful directives of the AGC.” (Cleaned up). In Attorney Grievance Comm‘n v. Allenbaugh, 450 Md. 250, 280, 148 A.3d 300, 318 (2016), we determined that an attorney‘s misconduct was aggravated by bad faith obstruction of the disciplinary proceeding, stating that the attorney “failed to respond to [a] complaint when forwarded by Bar Counsel during the investigation in the instant case, failed to attend two scheduled appointments with Bar Counsel‘s investigator, and failed to respond to discovery requests by Bar Counsel.”
In this case, although we note the aggravating factor of bad faith obstruction of the disciplinary process, we point out that, due to Collins‘s failure to respond to discovery, Bar Counsel moved for sanctions, and the hearing judge sanctioned Collins by precluding her from presenting evidence at the disciplinary hearing except testimony in mitigation. This ruling, while appropriate, effectively prevented Collins from presenting any evidence as to her state of mind for purposes of a defense to the allegations in the petition. In this case, Collins has already been sanctioned for obstruction of the proceedings.
A lineage of cases followed Vanderlinde in which the sanction of disbarment was imposed. See, e.g., Attorney Grievance Comm‘n v. Cassilly, 476 Md. 309, 262 A.3d 272 (2021); Attorney Grievance Comm‘n v. Sanderson, 465 Md. 1, 213 A.3d 122 (2019); Attorney Grievance Comm‘n v. Smith, 457 Md. 159, 177 A.3d 640 (2018); Attorney Grievance Comm‘n v. Moody, 457 Md. 90, 175 A.3d 811 (2017); Attorney Grievance Comm‘n v. Cocco, 442 Md. 1, 109 A.3d 1176 (2015); Attorney Grievance Comm‘n v. Davy, 435 Md. 674, 80 A.3d 322 (2013); Attorney Grievance Comm‘n v. Keiner, 421 Md. 492, 27 A.3d 153 (2011); Attorney Grievance Comm‘n v. Coppola, 419 Md. 370, 19 A.3d 431 (2011); Attorney Grievance Comm‘n v. Gisriel, 409 Md. 331, 974 A.2d 331 (2009); Attorney Grievance Comm‘n v. Cherry-Mahoi, 388 Md. 124, 879 A.2d 58 (2005).