IN THE COURT OF APPEALS OF
MARYLAND
Misc. Docket AG No. 45
September Term, 2001
ATTORNEY GRIEVANCE
COMMISSION
v.
DAVID ROBERSON
Bell, C.J.
Eldridge
Raker
Wilner
Cathell
Harrell
Battaglia,
JJ.
Opinion by Battaglia, J.
Filed: March 11, 2003
This is a reciprocal discipline action arising out of disciplinary proceedings initiated
in Georgia, where the Respondent, David Roberson (hereinafter “Roberson” or
“Responden t”), a member of that bar, exclusively practiced law.1 Respondent was disbarred
from the practice o f law in G eorgia on April 5, 2001,2 when the Suprem e Court of Georgia
determined, after the Review Panel of the State Disciplinary Board recommended
disbarment, that Roberson had violated the following G eorgia State Bar Stand ards: 4 (a
lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or wilful
misrepresentation); 30 (except with the written consent of or written notice to his client after
full disclosure a lawyer shall not accept or continue employment if the e xercise of h is
professional judgmen t on behalf of his client w ill be or reason ably may be aff ected by his
own financial, business, property or personal interests); 31(a)(a law yer shall not ente r into
an agreement for, charge, or collect an illegal or clearly excessive fee); 31(d)(2)(upon
conclusion of a contingent fee matter, the lawyer shall provide the client with a written
statement stating the following: (i) the outcome of th e ma tter; a nd (ii) if th ere is a rec overy:
1
Respondent was adm itted to the bar o f this Court in Decem ber 30, 197 6, and on A pril
13, 1999, he was decertified, and has remained so, for nonpayment of the annual assessment
by the Client Protection Fund, formerly known as Client Security Trust Fund. The
decertification does not affec t the Court’s authority to consider reciprocal discipline because
we have held that an attorney “who has been admitted to the bar of the State and has not
tendered a resignation remains subject to the disciplinary auth ority of this Cou rt,
notwithstanding being on the inactive list of attorneys, by virtue of failure to pay the Client
Security Trust Fund assessment.” Attorney G rievance C omm’n v. Ruffin, 369 Md. 238, 252,
798 A.2d 11 39, 1147 (2002 ).
2
Reinstatement was conditioned upon “Roberson . . . mak[ing] full restitution to the
estate in volved of all m oneys he receive d in reg ard to h is repres entation of the e state.”
(aa) the remittance to the client; (bb) the method of its determination; (cc) the amount of the
attorney fee; and (dd) if the attorney’s fee is divided with another lawyer who is not a partner
in or an assoc iate of the lawyer’s firm or law office, the amount of fee received by each and
the manner in which the division is determ ined); 36 (a la wyer shall no t continue m ultiple
employment if the exercise of his independent professional judgment on behalf of a client
will be or is likely to be adversely aff ected by his rep resentation o f another c lient, except to
the extent permitted under Standard 37); 44 (a lawyer shall not without just cause to the
detriment of his client in effect wilfully abandon or wilfully disregard a legal matter entrusted
to him); 61 (a lawyer shall promptly notify a client of the receipt of his funds, securities or
other properties and shall promptly deliver such funds, securities or other properties to the
client); 63 (a lawyer shall maintain complete records of all funds, securities, and other
properties of a client coming into the possession of the lawyer and promptly render
appropriate accounts to his client regarding th em); and 65(A )(a lawyer sha ll not comm ingle
his client’s funds with his own, and shall not fail to account for trust property, including
money and interest paid on the client’s money, if any, held in any fiduciary capacity) of Bar
Rule 4-102(d).
The Supreme Court of Georgia disbarred Respondent after having concluded that the
Respondent violated these Standards while providing representation in a medical malpractice
action filed on behalf of a woman who slipped into a coma after complications arose during
a routine Caesarian section performed after Roberson had been retaine d by the woman ’s
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common law hu sband in Aug ust of 1 994. In re Roberson, 273 Ga. 651, 544 S.E.2d 715
(2001).
On January 10, 2002, the Attorney Grievance Commission of Maryland (hereinafter
“Bar Counsel”), acting pursuant to Rules 16-751 3 and 16-7734 of the Maryland Rules,
3
Maryland R ule 16-75 1 provide s in part:
(a) Commen cement of disciplinary or remedial action. Upon
approval of the Commission, Bar Counsel shall file a Petition
for Disciplinary or Remedial Action in the Court of Appeals.
4
Maryland Rule 16-773 provides:
(a) Duty of attorney. An attorney who in another jurisdiction (1)
is disbarred, suspended, or otherwise disciplined, (2) resigns
from the bar w hile disciplinary or remedial action is threatened
or pending in that jurisdiction, or (3) is placed on inactive status
based on incapacity shall inform Bar Counsel promptly of the
disciplin e, resign ation, or inactive status.
(b) Duty of Bar Counsel. Upon receiving information from any
source that in anoth er jurisdiction a n attorney has been
disciplined or placed on inactive status based on incapacity, Bar
Counsel shall obtain a certified copy of the disciplinary or
remedial order and file it with a Petition for Disciplinary or
Remedial Action in the Court of Appeals pursuant to Rule 16751, and shall serve copies of the petition and order upon the
attorney in accord ance w ith Rule 16-75 3.
(c) Show cause order. When a petition and certified copy of a
disciplinary or remedial o rder have been filed, the Court of
Appea ls shall order that Bar Counsel and the attorney, within 15
days from th e date o f the ord er, show cause in writing based
upon any of the grounds set forth in section (e) of this Rule why
corresponding discipline or inactive status should not be
impos ed.
(d) Temporary suspension of attorney. When the petition and
disciplinary or remedial order demonstrate that an attorney has
been disb arred or is cu rrently suspended from practice by final
order of a court in another jurisd iction, the Co urt of Appe als
may enter an order, effective immediately, suspending the
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attorney from the practice of law , pending further order of
Court. The provisions of Rule 16-760 app ly to an order
suspen ding an attorney u nder th is section .
(e) Exceptional circumstanc es. Recipro cal discipline s hall not be
ordered if Bar Counsel or the attorney demonstrates by clear and
convincin g evidenc e that:
(1) the procedure was so lacking in notice or
opportun ity to be heard as to constitute a
deprivation of due process;
(2) there was such infirmity of proof establishing
the misconduct as to give rise to a clear
conviction that the Court, consistent with its du ty,
cannot accept as f inal the determination of
miscond uct;
(3) the imposition of corresponding discipline
would result in grave injustice;
(4) the condu ct established does not c onstitute
misconduct in this State or it warrants
substantially different discipline in this State; or
(5) the reason for inactive status no longer exists.
(f) Action by Court of Appeals. Upon consideration of the
petition and any answer to the order to show cause, the Court of
Appeals may immediately impose corresponding discipline or
inactive status, may enter an order designating a judge pursuant
to Rule 16-7 52 to hold a hearing in accordance with Rule 16757, or may enter any other appropriate order. The provisions of
Rule 16-760 a pply to an order under this section that disbars or
suspends an attorney or that places the attorney on inactive
status.
(g) Conclus ive effect o f adjudica tion. Excep t as provide d in
subsec tions (e) (1) and (e) (2) o f this R ule, a final adjudication
in a disciplinary or remedial proceeding by another court,
agency, or tribunal that an attorney has been guilty of
professional misconduct or is incapacitated is conclusive
evidence of that misc onduct or incapacity in any proceeding
under this Chapter. The introduction of such evidence does not
preclude the Commission or Bar Counsel from introducing
additional evidence or preclude the attorney from introducing
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filed a Petition for Disciplinary or Remedial Action against Roberson to which a certified
copy of the Georgia Supreme Court’ s discipl inary orde r was a ttached . In the Petition, Bar
Counsel alleged that Respondent is subject to the disciplinary authority of this State pursuant
to Maryland Rule o f Professional Co nduct (hereinafter “M RPC”) 8.5(a). 5 In addition, Bar
Counsel charged Respondent with engaging in misconduct as defined in Maryland Rule 16701(i) 6 and with violating the Maryland counterparts of the Georgia State Bar Standards he
had been fou nd to have violated, and more specifically, MRP C 8.4 (Miscon duct), 7
evidence or otherwise showing cause why no discipline or lesser
disciplin e shou ld be im posed .
(h) Effect of stay in other jurisdiction. If the other jurisdiction
has staye d the discipline or inactive status, any proceedings
under this Rule shall be deferred until the stay is no longer
operative and the discipline or inactive status becomes effective.
5
MRPC 8 .5(a) states:
(a) A lawyer ad mitted by the C ourt of A ppeals to pr actice in this
State is subject to the disciplinary authority of this State for a
violation of these rules in this or any other jurisdiction.
6
Maryland Rule 16-701(i) states:
(i) Profession al miscond uct. “Profe ssional misconduct” or
“miscond uct” has the meaning set forth in Rule 8.4 of the
Maryland Rules of Profession al Condu ct, as adopte d by Rule
16-812. The term includes the knowing failure to respond to a
request for inform ation authorized by this Chapter without
asserting, in writing, a privilege or other basis for such failure.
7
MRP C 8.4 pro vides in relev ant part:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so
through the acts of an other;
***
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MRPC 1.5 (Fees), 8
(c) engage in conduct involving dishonesty, fraud, deceit or
misrep resenta tion . . . .
8
MRPC 1 .5 provides:
(a) A lawyer's fee shall be reasonable. The factors to be consid ered in
determining the reasonableness of a fee include the following:
(1) the time and labor required, the novelty and difficulty of the
questions involved, a nd the skill requisite to perform the legal
serv ice p rope rly;
(2) the likelih ood, if a pparen t to the clie nt, that the acceptance
of the particular employment will preclude other employment by
the lawyer;
(3) the fee customarily charged in the locality for similar legal
services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the
circumstances;
(6) the nature and length of the professional relationship with
the client;
(7) the experience, reputation, and ability of the lawyer or
lawyers performing the services; and
(8) wheth er the fee is f ixed or con tingent.
(b) When the lawyer has not regularly represented the client, the basis or rate
of the fee shall be communicated to the client, prefera bly in writing, before or
within a reasonable time after commencing the representation.
(c) A fee may be contingent on the outcome of the matter for which the service
is rendered, except in a matter in which a contingent fee is prohibited by
paragraph (d) or other law. The terms of a contingent fee agreement shall be
communicated to the client in writing. The communication shall state the
method by which the fee is to be determined, including the percentage or
percentages that shall accrue to the lawyer in the event of settlement, trial or
appeal, litigation and other expenses to be deducted from the recovery, and
whether such expenses are to be deducted before or after the c ontingent f ee is
calculated. Upon c onclusion of a contin gent fee m atter, the lawyer sh all
provide the client with a written statement stating the outco me of the matter,
and, if there is a recovery, showing the remittance to the client and the method
of its determination.
(d) A law yer shall not ente r into an arran gement f or, charge, o r collect:
-6-
MRPC 1.7 (Con flict of Interes t: General Rule), 9 and MR PC 1.15 (Safe keeping Property). 10
(1) any fee in a domestic relations matter, the payment or
amount of which is contingent upon the securing of a divorce or
custody of a child or upon the amount of alimony or support or
property settlement, or upon the amount o f an awa rd pursuan t to
Sections 8-201 through 213 of Family Law Article, Annotated
Code of Maryland; or
(2) a contingent fee for representing a defendant in a criminal
matter.
(e) A division of fee be tween l awye rs who are not in the same firm may be
made only if:
(1) the division is in proportion to the services performed by
each lawyer or, by written agreement with the client, each
lawyer assumes joint responsibility for the representation;
(2) the client is advised of and does not object to the
participation of all the lawyers involved; and
(3) the total fee is reasonable.
9
MRPC 1 .7 provides:
(a) A lawyer shall not represent a client if the representatio n of that clien t will
be directly adverse to another client, unless:
(1) the lawyer reasonably believes the representation will not
adversely affect the relationship with the other client; and
(2) each client consents after consultation.
(b) A lawyer shall not represent a client if the representation of that client may
be mate rially limited by the lawyer's responsibilities to another client or to a
third person, or by the lawyer's own interests, unless:
(1) the lawyer reasonably believes the representation will not be
adversely affected; and
(2) the client consents after consultation.
(c) The consultation required by paragraphs (a) and (b) shall include
explanation of the implications of the common representation and any
limitations resu lting from the la wyer 's responsibilities to another, or from the
lawyer's own interests, as well as the advantages and risks involved.
10
MRPC 1 .15 provides:
(a) A lawyer shall hold property of clients or third pers ons t hat is in a la wyer 's
possession in connection with a representation separate from the lawyer's own
prop erty. Funds shall be kept in a sep arate accou nt maintaine d pursuan t to
-7-
On May 9, 200 2, we refe rred the case to the Hon orable Philip Caroom of the Circ uit
Court for Anne Arundel County for a hearing.11 Following the hearing on August 14, 2002,
during which the parties submitted an “extensive statement” of “Stipulated Facts and
Exhibits” and additional agreed exhibits, the hearing court made findings of fact, as follows:
I. Findings of Fact
A.
Procedural history
Based on the stipulations and agreed exhibits, the undersigned finds the
following facts:
1.
Roberson was admitted to practice law in Maryland by the Court of
Title 16, Chap ter 600 of th e Maryland Rules. O ther proper ty shall be identified
as such and appropriately safeguarded. Complete records of such account
funds and of other pr operty shall be kept by the lawyer and shall be preserved
for a period of five years after termination of the representation.
(b) Upon receiving funds or other property in which a client or third person has
an interest, a lawyer s hall promp tly notify the client or third person. Except as
stated in this Rule or otherwise permitted by law or by agreement with the
client, a lawyer shall promptly deliver to the client or third person any funds
or other prop erty that the client or third person is entitled to receive and, upon
request by the client or third person, shall promptly render a full accounting
rega rding suc h pro perty.
(c) When in the course of representation a lawyer is in po ssession of property
in which both the lawyer and another person claim interests, the property shall
be kept separate by the lawyer until there is an accounting and severance of
their interests. If a dispute arises concerning their respective interests, the
portion in dispute shall be kept separate by the lawyer until the dispute is
resolved.
11
On January 11, 2002, this C ourt issued a show ca use order d irecting Re sponden t to
show cause why corresponding discipline should not be imposed in Maryland to which
Respon dent, after service and receipt of an extension, responded on M ay 2, 2002. The Co urt
immedia tely suspended Respondent from the practice of law on May 8, 2002, subject to
further order.
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Appea ls on De cemb er 30, 19 76. He was appointed as an Assistant U.S.
Attorney for the South ern D istric t of G eorg ia on Janu ary 3, 1978 and
was admitted to the State Bar of Georgia on November 7, 1979.1
Roberson subsequently entered private practice in Georgia.
2.
Prior to the present proceedings, Roberson never has been sub ject to
any disciplinary proceedings in either Maryland or Georgia. He was
decertified on April 13, 1999, by Maryland, however, for nonpayment
of his ann ual Clients’ S ecurity Trust Fu nd assessm ent.
3.
The State Bar of Georgia initiated an investigation of Roberson on
February 21, 1997 , and filed its Formal Complaint (“the complaint”)
against Roberso n on De cember 3 1, 1997, alleg ing nine (9) serious
violations of the standards set by Georgia’s Bar Rules, seeking
appropriate discipline and reimbursement of fees. Joint Exhibit B, pp.
6 through 33. All alleged v iolations related directly or indirectly to
representation of the late Julia Mae Shiggs 2 and her h usband, in itially
in a medical m alpractice claim between April 1995 and October 1996.
4.
The Supreme Court of Georgia (“the Court”), in the interim between
the investigation's initiation and the complaint's filing, by
administrative Order of June 13, 1997 and effective July 1, 1997,
changed the standard of proof for attorneys' disciplinary cases from
"beyond a reasonable doubt" to "clear and convincing evidence."
Ame nded G eorgia B ar Rule 4-221 (e)(2); jo int exhib it.
5.
On June 13, 1 997, the C ourt also amended the Georgia Bar Rules,
establishing the system of special master's trials, followed by a Review
Panel; then, "[a]lleged errors in the trial may be reviewed by the
[Georgia] Supreme Court when the findings and recommendation of the
Review Panel are filed with the Court." Amended Georgia Bar Rule 4213(a); joint exhibit 5. The latter amendment, removing the right to a
jury trial, also superseded state legislation which h ad provided jury
trials for disbarment actions. [O fficial Code of G eorgia Annotated ],
sec. 15- 19-32 ; see join t exhibit s 4 and 4A.
1
The State Bar of Geo rgia in its Formal Complaint alleged
that Roberson was admitted in 1973, but this appears to have
been a clerical error and is immaterial to the present concerns.
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6.
The Supreme Court of Georgia, as provided by these amended rules,
appointed a Special Master to take testimony as to this matter on
November 24, 1998. The Special Master held a hearing in the matter
betwe en Ap ril 19 an d 22, 19 99. Join t exhibit s 6A th rough 6D.
7.
The Special Master filed his 54-page report of facts and
recommendations for discipline on March 27, 2000. This included the
determination that the newly-adopted standard of proof as to "clear and
convincing evidence" should be applied, rather than the earlier standard
of "beyond a re asonable d oubt." Joint e xhibit B, pp.484-537. The
Special Master f ound that R oberson c ommitted all nine (9) alle ged
ethical violations, recommending disbarment, a public reprimand and
restitutio n of atto rney's fees receive d.
8.
The Report of the R evie w Pa nel, r elying on th e Sp ecia l Ma ster's
Report, was filed July 17, 2000. Joint exhibit B, pp. 726-729. With one
exception, 3 the Review Panel approved all findings and
recom mend ations o f the Sp ecial M aster.
9.
The Supreme Court of Georgia, in its April 5, 2001, per curium
opinion, also approved the findings that Roberso n had com mitted all
nine (9) alleged violations by "clear and convincing eviden ce," 4 ruling
that disbarment was the appropriate sanction and requiring "f ull
restitutio n" bef ore any p etition fo r reinstate ment. Jo int exhib it C.
10.
The specific facts of the representation, as found by the Special Master
and approve d by th e Ge orgia Su prem e Co urt, a re no t disp uted by
2
Shiggs was com atose at the o utset of the litig ation and
died in December 1996.
3
The one exception noted that the Special Master had
found that Robe rson "mo re likely" inflated estimated future
medical needs for his client by over $300,000 from $1,091,909-a figure supplied via econom ist Dr. Barbara Bart--to $1,425,000
--a figure for which the Special Master found inadequate
support. Joint Exhibit B, pp. 496-497 and 727. The nine member
Review Panel, nevertheless, voted 8-0 with one abs tention to
accept the S peci al M aster's findings and recommendations. The
"more likely" issu e is discu ssed fu rther, inf ra.
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Roberson in these Maryland disciplinary proceedings.5
summa rized as follo ws:
B.
These may be
Facts of representation
In August 1994, Julia Mae Shiggs ("Shiggs"), a 34 year old woman,
was admitted to Savannah's Memorial Medical Center ("the hospital") to give
birth to her fourth child. Ms. Shiggs experienced complications during a
Caesarian section and slipped into a coma from which she never awoke.6
SMR 2 [Spe cial M aster’s R eport].
Shortly thereafter, Michael Mydell (“Mydell”), Ms. Shiggs’ commonlaw husband, contacted Roberson to file a medical m alpractice su it on behalf
of Ms. Shiggs and a loss of consortiu m claim for himself. Special Master
Report ("SMR") 2-3.7 An Au thority to Represent agreement (the "fee
agreement") was executed on September 28, 1994, in which Mydell retained
the serv ices of R oberso n for a 4 0% co ntingen t fee.
Roberson, in Novemb er 1995, w ith the permission of Mydell, hired
John Thoma s Wood all ("Woo dall"), another experienced trial attorney to assist
4
The Court's opinion made reference to the Special
Master's findings withou t rem arking on the "more lik ely"
langua ge.
5
Rob erso n's Memorandum of Law po ints to no spe cific
facts disputed, but makes the conclusory allegation in the
language of Maryland Rule 16-773( e )(2) that there has been
"such infirmity of proof establishing the misconduct as to give
rise to a clear conviction that the Court, consistent with its du ty,
canno t accep t as fina l the dete rminatio n of m iscond uct."
6
All references are to the per curiam opinion of the
Supreme Court of Georgia (joint exhibit C), unless otherwise
indicate d.
7
The findings of fact by the undersigned refer to the
Special Master's report's findings, incorporating by reference the
more specific references to trial transcript p ages and exhibits
therein. While the entire Special Master's trial transcript was not
filed herein, the parties stipulated to excerpts of passages they
considered most material, which form part of the record as
supplemental exhibits no. 6A through 6D.
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with the litigation. However, Roberson and Woodall did not execute a written
agreement as to attorney's fee s. Instead, they ha d a "gentlem an's agreem ent"
according to Robers on and sh ook han ds. SMR 5. Wood all, it was understood,
would have no person al contact with Rob erson's clients and would receive
instructio ns only fr om R oberso n.
Roberson and Wo odall filed suit on April 14, 1995 and alleged counts
for medic al malp ractice a nd loss of con sortium . SMR 5. However, in
September 1995, Ro berson inf ormed M ydell that the case expenses w ere
escalating and he needed to contribute $10,000 to the costs of prosecuting the
claims. SMR 6. Mydell and Roberson then agreed to amend their Fee
Agreement when Mydell could not pay the $10,000. SMR 6. The new contract
between Mydell and Roberson on September 1, 1995, required that Roberson
receive 50% of the p roceed s of an y recove ry in the ca se. SM R 6.
On the eve of trial after learning that Mydell had impregnated another
women while his wife was still in a coma, Roberson decided that the loss of
consortium claim could adversely impact Ms. Shiggs' medical malpractice
claim. Mydell subsequently agreed to dismiss his loss of consortium claim
after dis cussing this mat ter with Robe rson. SM R 7.
The trial began on January 16, 1996, and ended afte r six ( 6) da ys with
a settlement agreement on January 22, 1996. The settlement agreement
consisted of a collectiv e cash paym ent of $3, 3 25,000 to be paid by de fendants
within 72 hours to Roberson for Ms. Shiggs' benefit. Importantly, the
settlement agreement involved the participation of trial judge Gregory Fow ler:
Roberson agreed tha t "court a pprova l of any v aluation [of services
provided in addition to the monetary payments] wo uld be necess ary."
SMR 10 & 1 2; emp hasis in o riginal.
Also, as part of the settlement agreement, the defendants insisted that
Myd ell's and all Ms. Shiggs' four children's inchoate wrongful death claims be
released. SMR 14. Desp ite Mydell's stated misgiving s and refu sal to
participate, Roberson agreed and arranged the releases of the children's claims,
obtaining the local Probate Court's approval for this in July 1996. SMR 14-15.
Further supplementing the monetary aspects of the settlement
agreeme nt, the hospital agreed to provide ce rtain future m edical servic es to
Ms. Shiggs. S MR 12. This would include all aspects of Ms. Shiggs' care,
including certain daily respira tory therapy & trea tment. A value of these future
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services was required, in part, for the purpose of determining attorneys' fees.
SMR 12. The value of future services--of respiratory treatment only– had been
calculated for trial by Dr. Bart to be $1,091,909, based on the present value of
seven year's worth of respiratory expenses. SMR 13. 8 This information was
provided on Janua ry 23, 1996, by W oodall 9 to Rob erson.
Roberson, nevertheless, valued the future medical services in his
submission to the trial court at $1,425,000, using this figure in the Settlement
Statement which he presented to Mydel1 and filed with the Court. SMR 1314.10 Later in August 1996, when Roberson was asked for his documentation
of the $1,425,000 figure, Roberson: a) told Woodall that he (Roberson) "had
lost the papers"with the $1,425,000 figure; b) contended that $1,425,000, not
$1,091,909, was the figure that Woodall supplied and c) suggested to the trial
judge that the pages may have been switched without his consent. SMR 13, 30
and 33 .
To the contrary, Woodall testified, as to the Aug ust conve rsation with
Robe rson,
This is the first time in my life I had heard of
$1,425,000. I knew th at I had only faxed him on
January whatever it was in 1996, I had only faxed
him a figure fo r respiratory therapy that was
$1,091,000, and I did n ot know what the
differe nce w as either ." SM R 30.
Wood all got the impression from talking with Roberson that Roberson
received the increased figure directly from D r. Bart; however, when W oodall
8
Although Ms. Shiggs' own neurologist testified that she
could be expected to live as long as 48 years, W oodall and Dr.
Bart chose a se ven year perio d for calcu lating future services
because they believed it was a more reasonable and conservative
figure. S MR 13; Tr. 5 17, 114 0-41.
9
Wood all, by agreement with Roberson, acted as primary
trial attorney apparently with the responsibility of gathering
docum entary ev idence for trial. S MR 5.
10
In his submis sion to the pr obate cou rt, Roberson made no
referen ce to the provisio n of fu ture me dical ca re. SM R 22.
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asked her, Dr. Bart informed Woodall that she had no other calculations and
had do ne non e for R oberso n directl y. SMR 31.
Knowing that the larger figure was necessary to justify the amount of
attor ney's fees already distributed fro m the settlem ent procee ds, Woo dall 11 on
behalf of himself and R oberson asked D r. Bart to sign an affidavit which made
up the approximately $300,000 difference between the future medical care
figures by assuming the need for additional hospital stays, if she was
"comf ortable" with th is. SM R 31.
The Special Master also considered testimony as to the source of the
$1,425,000 calculation from Karen Alston, a paralegal formally employed by
Roberson. However, he rejected Ms. Alston's testimony as inconsistent and
containing too many "memory gaps." For example, Alston testified both 1) that
Roberson was her source of the $1,425,000 figure, which he wrote for her on
a scrap of paper and 2) that Woodall was her source of the figure, which he
"had to tell her h ow to w rite." SM R 13-1 4, note 7 .
Roberson complains that the Special Master found it "more likely" that
the increase between the $1,091,909 future medical bill and the $1,425,000
was added on by Roberson, arguing that this phrase indicates the Master
applied a mere "preponderance " standard of proof rather than the more
stringent and legally required "clear a nd con vincing " standa rd. SM R 13.
Howeve r, the undersigned finds that the "more likely" reference has been taken
out of context and m isconstrued. In context, the undersigned finds that Special
Master infelicitously use d this phrase simply to indica te that he gave no
credibility to Roberson's alternate explanations of how the $300,000
discrepancy arose. Up on summ arizing the en tirety of the evide nce on this
point, it is plain that the Special Master found clear and convincing evidence
that Roberso n had viola ted profes sional stand ards by "main taining disho nest,
fraudulen t, and dece itful records o f the settleme nt...which contained willful
misrep resenta tions." SMR 38-42. Notably, the Georgia Review Panel approved
the Special Master's report, excepting and disagreeing that the evidence on this
point was simply "more likely"; instead, the Review Panel found “the evidence
is clear and convincing that Respondent Roberson increased the amount of
future medical services from $1,091,000 to $1,425,000 in order to enlarge the
11
Wood all also was subject to disciplinary proc eedings in
Georgia. SMR 1.
-14-
amount of attorneys' fees claimed . . . .” Joint Exhibit B, p. 727. The Ge orgia
Supreme Court in its per curium opinion, affirmed the Review Board's "clear
and convincing" evidence finding and made no reference to the Special
Maste r's "more likely" lang uage. Jo int Exh ibit C.
C.
Disburse ments
During the settlement discussions, Roberson decided to establish a
"special needs trust" where a portion of the settlement funds could be set aside
free of Medicare or Medicaid liens. As a result, Roberson returned a $600,000
check received from the defendant doctor to his attorney, Greg Hodges, and
had it replaced with two checks: (1) a $400,000 check for the special needs
trust; and (2) a $ 200,000 check fo r the trust belon ging to Ms. Shiggs'
children.12
Roberson had Ho dges retain th e checks u ntil the trusts were set up and
could be funded, but Roberson never had the trusts funded and they remained
in Hod ges' draw er until a new g uardian was ap pointed . SMR 16.
After the settlement was completed, Ro berson paid W oodall $ 1,100,000
on January 26, 1996, which was paid from settlement funds held in trust prior
to court approval of the settlement. SMR 18-19. This payment was made,
despite Roberson's prior oral agreement with Woodall on a “flat fee” of
$1,000 ,000 fo r Woo dall's serv ices, irres pective of the a moun t recove red.
On February 26, 1996, Roberson issued a check from his trust account
to Mydell in the amount of $151,359.33. Tr. 135-37.13 Roberson also did not
seek co urt app roval p rior to m aking th is disbu rsemen t to Myd ell. SM R 20.
Further, Roberson made a payment from his trust account on February
16, 1996, in the amount of $30,000 to Mydell's sister Ms. Loretta Barnes
("Barnes") for the estimated value of her care of Ms. Shiggs' four children.
This payment also was made before the probate court approved the
disburs emen t. SMR 21.
12
This trust was to be created as a part of the agreement
where the children would re lease any pote ntial claims against
the defendants.
-15-
In addition, Roberson wrote four checks to himself from his trust
account totaling $600,000 between January 31, 1996 and February 18, 1996.
SMR 21.14 Roberson also wrote four additional checks totaling $633,112 as
payment for the purchase of a church.15 Id. Again, all these checks written by
Robe rson to h imself w ere ma de with out cou rt appro val. SM R 22.
Based [on] his af orementio ned increa se in the figure for future medical
fees, Roberson increased the amount of contingent attorney's fee claimed from
one-half of the cash settlement of $3,325,000 – i.e., $1,662,500 – to one-half
the large r settlem ent $4,7 50,000 -- i.e., ove r $2,00 0,000 to tal.
Eventually, Roberson and Woodall were sued by the administrator of
Ms. Shiggs' estate for legal malpractice and other claims related to the
settlement agreement. Woodall settled the claim against him obtain ing a full
release for payment of $350,000. Roberson, after the disbarment order of the
Georgia Suprem e Court, settled the estate's claim against him with payment of
$449,385.26. Stipulated Facts and Exhibits, esp. exhibit 19 dismissal, dated
April 1 9, 1999 .
II.
Conclusions of Law
The undersigned finds that the Georgia disciplinary proceedings have
satisfied the requ iremen ts of M aryland R ule 16- 773, which pro vides that "a
final adjudication in a disciplinary . . . proceeding by another court . . . that an
13
The reason for this payment by Roberson has varied. On
October 1, 1996, Roberson told Judge Fowler that the payment
was in exchange for Mydell's agreement to dismiss his loss of
consortium claim. SMR 15. However, at a later hearing,
Roberson stated that the p ayment repre sented a "g uardiansh ip
fee." SMR 20.
14
The Special Master also noted that Roberson made
inconsistent statements as to the use of the latter funds at two
differe nt cour t hearing s. SM R 21.
15
Roberson is a minister as well as an a ttorney. Despite an
earlier invocation of 5th A mendmen t rights in this regard, he
admitted at the Special Maste r's hearing that h e "donated " this
portion of his fees to purchase the Bull Street Church of Christ
in Cha tham C o., Geo rgia. SM R 4 & 21.
-16-
attorney has been guilty of professional misconduct . . . is conclusive evidence
of that miscon duct in a ny [Ma ryland] pr oceed ing . . . [un less t he other court's
adjudication] was so lackin g in n otice or the opportunity to be heard as to
constitute a deprivation of due process . . . [or] there was such an infirmity of
proof establishing the misconduct as to give rise to a clear conviction that the
Court . . . cannot accept as final the determin ation of misconduct. Maryland
Rule 16-773(e)(l), (e)(2), and (g).
A.
Due Process issues
Rob erso n's two complaints as to his due process rights relate to the
denial of: 1) his motion for application of the superseded, stricter standard of
proof; and 2) his belated 16 demand for a jury trial, also superseded by th e
amended Georgia Bar Rule.
Initially, the undersigned notes that Maryland Rule 16-773 does not
reference the full gamut of due process issues, but rather limits challenges of
out-of-state procee dings to "notice " and "o pportu nity to be h eard." There has
been no contention that Roberson lacked notice. And, the undersigned finds
that he clearly had the opportunity to be heard at three court levels: the Special
Master's hearing, the Review Board proceedin g and the a ppeal to the Geor gia
Supre me Co urt.
In effect, Ro berson ass erts that a "due process" op portunity to be heard
requires a jury trial for attorney disciplinary proceedings. To the c ontrary,
Maryland's Court of Appeals has agreed with the Georgia Supreme Court
decision herein that, w hile attorney discip linary matters require basic due
process protections, such rights are not coexte nsive with the rights of criminal
defendants: neither findings "beyond a reasonable d oubt," nor jury trial are
required See, as to jury trials, Attorney Grievance Commission v. Kerpelman,
288 Md. 3 41 (19 80), cer t. den. 45 0 U.S. 970 (1981); see, as to comparison
with crimina l procee dings, Maryland State Bar Association v. Sugarman, 273
Md. 3 06, at 31 5(197 4), cert. d en. 420 U.S. 97 4 (197 5).
16
Roberson's Motion for Jury Trial an d for Rec onsideration
was filed with the Supreme C ourt of Georgia on ly on February
14,2001, after the conclusion of both the Special Master's and
Review Panel's proceedings. The Court denied this motion.
Stipulated Facts and Exhibits herein, paragraphs 14 through 17.
-17-
Roberson also suggests that the Georgia Supreme Court erred by
changing the procedural rights to which he was entitled by legislation and prior
rule after the alleged miscondu ct but before the filing of co urt action against
him. The inhe rent authority of Georgia's Supreme Court to regulate the
practice of law and the disciplinary proceedings as to lawyers has been found
properly to supersed e the effo rts of the state le gislature in this a rea. As w ith
other constitutiona l challenges to the courts' au thority to regulate attorneys, the
U.S. Supreme Court has declined to intervene in such matters. Wallace v.
Wallace, 225 Ga . 102, 166 S .E. 2d 718 , cert. den. 396 U.S. 939 (1969). Th is
construction of the courts' disciplinary authority is identical to the Mar yland
Court of Appeal's interpretation of its own authority. Cf., Annotated Code of
Maryland, Courts and Judicial Proceedings Art., sec. 1-201 and Petite v. Estate
of Papachrist, 219 M d. 173 ( 1959) .
B.
Application of standards as to professional misconduct
Based on the factual findings discussed, supra, the undersigned has
found no "infirmity of proof establishing the misconduct as to give rise to a
clear conviction that the Court . . . cannot accept as final the determination of
miscon duct." M aryland R ule 16- 773.
Followin g is a discuss ion of spe cific violation s of Geo rgia Bar R ules:
17
As noted above, the undersigned has found that Georg ia
and Maryland sha re su bstantial ly similar standards for attorneys'
professional conduct. F or ease of c ompariso n, an appe ndix is
attached and incorporated by reference herein which charts the
two states’ standards of professional conduct. [The referenced
appendix reflects the fo llowing:]
-18-
17
Corresponding Count
Ma ryland Rule
Georgia Standard
Count I - Conduct Involving
Dishonesty
Rule 8.4 Misconduct
It is professional misconduct for a
lawyer to: (a) vio late or attemp t to
violate the rules of professional
conduct, knowingly assist or
induce another to do so, or do so
through acts of another
***
(c) engage in conduct involving
fraud, deceit, or misrepresentation
Standard 4
A lawyer shall n ot engage in
professional conduct involving
dishonesty, fraud deceit, or willful
misrepresentation. A violation of
this Standard may be punished by
disbarme nt.
Count II - Conflict of Interest
Rule 1.7 C onflict of Interest
(a) A lawyer sh all not repres ent a
client if the representation of that
client will be dire ctly adverse to
another clien t unless:
(1) the lawyer believes the
representa tion will not adv ersely
affect the relationship with the
other client; and
(2) each client consents after
consultation.
(b) A lawyer shall not repre sent a
client if the representation of that
client may be materially limited by
the lawyer's respo nsibilities to
another client or third person, or
by the lawyer's ow n interests
unless:
(1) the lawyer reasonably believes
the representation will not be
adversely affected; and
(2) the client consents after
consultation.
(c) The consultation required by
paragrap hs (a) and (b ) shall
include explanation of the
implications of the common
representation and any limitations
resu lting from the l awy er's
responsibilities to another, or from
the lawyer's own in terests, as well
as the advantages and risks
involved.
Georgia Standard 30
Except with the written consent or
written notice to his client after full
disclosure a lawyer shall not
accept or continue em ployment if
the exercise of his professional
judgment on behalf of his client
will be or reasonably may be
affected by his o wn financial,
business, property or personal
interests. A viola tion of this
Standard may be punished by
disbarme nt.
Count V - Multiple Employment
Impairing Professional Judgment
Count VI- Willfully Disregarding a
Legal Ma tter Entrusted by Client
-19-
Georgia Standard 36
A lawyer shall not continue
multiple employment if the
exercise of his independent
professional judgment in behalf of
a client will be or is likely to be
adversely affec ted by his
representa tion of anothe r client,
except to the extent permitted
under Standard 37. A violation of
this Standard may be punished by
disbarme nt.
Count III - Clearly Excessive Fees
Rule 1.5(a) F ees
(a) A lawyer's fee shall be
reasonable. The factors to be
considered in determining
reasonableness include the
following:
(1) the time and labor required, the
novelty and difficulty of the
questions inv olved, and the skill
requisite to perform the legal
service pro perly;
(2) the likelihoo d, if appare nt to
the client, that the acceptance of
the particular e mployme nt will
preclude other employment by the
lawyer; (3) the fe e customa rily
charged in the locality for similar
legal services;
(4) the amount involved and the
results obtaine d;
(5) the time limitation imposed by
the client or by th e circumstan ces;
(6) the nature and length of the
professional relationship with the
client;
(7) the experience, reputation, and
ability of the lawyer or lawyers
performing the services; and
(8) whether the fee is fixed or
contingent.
-20-
Standard 31(a)
A lawyer shall not enter into an
agreement for, charge, or collect
an illegal or clea rly excessive fee .
Count IV- Contingent Fee Shared
Improperly with Another Lawyer
Rule 1.5(c) F ees
(i) A fee may be contingent on the
outcome of the matter for which
the service is rendered, except in a
matter in which a contingen t fee is
prohibited by paragraph (d) or
other law. T he terms of a
contingent fee agreement shall be
commu nicated to the client in
writing. The c ommunic ation shall
state the method by which the fee
is to be determined, including the
percent o r percentag es that shall
accrue to the lawyer in the event of
settlement, trial or a ppeal,
litigation and other expenses to be
deducted from the recovery, and
whether such expenses are to be
deducted before or after the
contingent fee is calculated. Upon
conclusion of a contingent fee
matter, the lawyer shall provide the
client with a written statement
stating the outcome of the matter,
and if there is a recovery, showing
the remittance to the client and the
method o f its determinatio n.
-21-
Standard 31(d)(2)
(2) Upo n conclusio n of a
contingent fee matter, the lawyer
shall provide the client with a
written statement stating the
following:
(i) the outcome of the matter; and
(ii) if there is a recov ery:
(aa) the rem ittance to the clien t;
(bb) the m ethod of its
determination; (cc) the amount of
the attorney fee; and
(dd) if the attorney's fee is divided
with another la wyer who is no t a
partner in or an associate of the
lawyer's firm or law office, the
amount of fee received by each
and the manner in which the
division is determined.
Count VII - Promptly Notifying
Client of Rec eipt of Funds
Count VIII - M aintain Complete
Record o f Client's Funds
Coun t IX - No t Accou nting for All
Trust Funds
Rule 1.15 Safekeeping Pro perty
(a) A lawyer shall hold property of
clients or third persons that is in a
lawyer's possession in connection
with representation separate from
the lawyer's own property. Funds
shall be kept in a separate account
maintained pursuant to Title 16,
Chapter 600 of the Maryland
Rules. Other property shall be
identified as such and
appropriately safeguarded.
Complete records of such account
funds and o f other prop erty shall
be kept by the lawyer and shall be
preserved for a period of five years
after termination of the
representa tion.
Standard 63
A lawyer shall m aintain com plete
records of all funds, securities, and
other properties of a client coming
into the possession of the lawyer
and pro mptly rende r approp riate
accounts to his client regarding
them. A violation of this Standard
may be pu nished by d isbarment.
Standard 65(A )
A lawyer shall n ot comm ingle his
client's funds with his own, and
shall not fail to account for trust
property, including money and
interest paid o n the client's mone y,
if any, held in any fiduciary
capacity.
(b) Upon receiving funds or other
property in which a client or third
person has an interest, a lawyer
shall promptly notify the client or
third perso n. Excep t as stated in
this Rule or otherwise permitted by
law or by agreement with the
client, a lawyer sha ll promptly
deliver to the client or third person
any funds or other property that
the client or third person is entitled
to receive and, upon request by the
client or third p erson, shall
promptly render a full accounting
regarding su ch prop erty.
Count I-conduct involving dishonesty, fraud,
misrepresenta tion- (Georgia B ar Standard 4)
deceit,
or
wilful
On this point, the S pecial M aster's report stated “As to [two points]
only, the record is devoid of clear and convincing evidence of any violation by
Roberson as a matter of law.” SMR 39. Phrased in the positive, the Special
Master found clear and convincing ev idence on various po ints as to
unprofessional conduct involving dishonesty, fraud, deceit or wilful
misreprese ntation as to:
a) representing to client Mydell that the [ac tual] value of future
medical services for Ms. Shiggs w as $1,425 ,000 [des pite
-22-
absence o f any docum entation or sp ecific evide nce of this];
b) representing to the Chatham County Probate and State courts
that the value o f future m edical services was $1,425,000
[despite absence of any documentation or specific evidence of
this];
c) providing false and misleading ass umptions to [econo mist]
Dr. Bart [for use in an affidavit as to estimated future medical
expenses]; and
d) paying [Mydell and his sister] money belonging to Ms.
Shiggs [while no t properly disclosing the basis for such
paymen ts for the courts' ap proval ]. SMR 20-21 , 38-42 .
Count II-con flict of Interest - (Georgia B ar Standard 30)
Related to the inflation of future medical bills, the Special Master found
that Roberson failed to disclose a conflict of interest when he did not tell his
client that this valuation question might result in an increase of counsel fees
in Rob erson's in terest an d to the d etrimen t of the c lient. SM R 43-4 4.
Count III-clearly excessive fee - (Ge orgia Bar Sta ndard 31.a. )
The initial contingent fee was increased from 40 % to 50 % of all
amounts recovered. With the inclusion of future medical services' valuation,
which were not yet provided, the attorneys' fee share of actual cash again was
booste d to 72% . SMR 44-45 .
The Georgia Supreme Court found that this percent was excessive and
Maryland similarly has held this leve l of conting ency fee gen erally is
excessive. The Co urt of Ap peals has stated tha t "it is generally a violation of
the rule for the attorney's s take in th e result to excee d the clie nt's stake ."
Attorney Grie vance C omm 'n of Maryland v. Korotki, 318 Md. 646, 649, 569
A.2d 1 224, 12 26 (19 90).
Count IV-contingent fee shared improperly with another lawyer(Georgia B ar Standard 31.d.)
The Georgia standard, like the Maryland rule, as to disclosure of
contingent fee arrangements with other counsel, required a written statement
to be pr ovided to the clie nt of all d etails. Th is was n ot done . SMR 45-46 .
-23-
Count V-mu ltiple employment impairing professional judgmen t- (Georgia
Bar Stand ard 36)
Roberson provided multiple representation in this case by concurrent
representation of: M s. Shigg s, her commo n law hu sband M ydell-both
individually and as Ms. Shiggs' guardian, as well as Ms. Shiggs' children,
although there was no written agreement as to representation or attorney's fees
as to the children . SMR 46-49 ; Stipula tion, pp . 529-5 31.
It is clear that Robe rson's profe ssional judg ment wa s impaired in this
multiple representation context in that: 1) he paid Mydell and his sister a
portion of these settlement funds without prior court authorization, and 2) he
failed to complete arrangements agreed upon to deposit a portion of settlement
funds into trust for benefit of the child ren. Id. The lack of court authorization
of payments to Mydell and his sister is significant in that there was no showing
required that t he am ounts of these-pa ymen ts we re pr oportion al to a ny actual
services rendered, rather than being an arbitrary amount which w ould serve to
dissuade these witnesses from raising questions about any other settlement
issue. S MR 41, 49 a nd 52.
Count VI-wilfully d isregarding a lega l matter entrusted by client (Georgia B ar Standard 44)
During settlement discussions with defendants' counsel, Roberson
decided to ask that a "special needs" trust be established for benefit of Ms.
Shiggs' children to avoid M edicare or Medicaid liens. For this reason,
Roberson returned a $600,000 settlement check received from the defendant
doctor to his atto rney, Greg H odges, and had it replace d with two checks: 1)
a $400,000 check for the special needs trust; and 2) a $200,000 check for the
trust belonging to Ms. Shiggs' children.18 Roberson had Hodges retain the
checks until the trusts were set up and could be funded (Tr. 424-25), but
Roberson never had the trusts funded and they remained in Hodges' drawer
until a new guardian was appointed. SMR 16. This clearly constituted
abandonment of a matter for which Roberson has assumed responsibility. SMR
48-50 .
18
This trust was to be created as a part of the agreement
where the children would release any potential claims against
the def endan ts.
-24-
Count VII- failure to promptly notify and deliver to the client funds
received for her - (Georgia Ba r Standard 61)
Roberson clearly violated th is standard by: 1) failure to deposit the
$600,000 funds left in the hands of the defendant doctor's attorney, 2)
improper payment of the client's settlement funds to M ydell and his sister, and
3) the excessive counsel fees taken by Roberson himself and his co-counsel
Woo dall. SM R 50.
Count VIII-failure to maintain complete record of client's funds (Georgia B ar Standard 63)
Roberson, beyond the original Settlement Statement, kept no records of
funds' receipt and disbursement other than bank statements and cancelled
checks. As found by the Special Master, "it is impossible to tell [from these
bank records] how much money Roberson received on [the client’s] behalf and
where it all went." SM R 51. Th e settlement s tatement falsely reflected that
Roberson received the $600,000 on behalf of the ch ildren, as he a ctually
returned these funds, and that Roberson paid an attorney $15,000 to set up the
children 's trust, as h e neve r actually m ade this paymen t. SMR 52.
Count IX-n ot accounting fo r all trust funds - (Ge orgia Bar Sta ndard 65.a. )
Roberson provided no accounting to Ms. Shiggs or her guardian for the
settleme nt fund s whic h he, as h er attorn ey, held in trust. SM R 53.
III.
Mitigation
Initia lly, the unders igned note s that little attention w as paid to
mitigation in the Georgia proceedings herein. Both the Special Master and the
Georgia Supreme Court refer to "non mitigating factors" based upon "the facts
found ." The "facts found" all relate to the specifics as to the occurrence of the
disciplin ary infrac tions. SM R 53; J oint Ex hibit C, p . 9.
Maryland has a somewhat broader view of mitigation, which may
include an attorn ey's lack of prior rec ord and his com munity in volvem ent. E.g.,
Attorney Grievance Commission v. Bereano, 357 Md. 32 1 (2000). Maryland
Rule 16-757(b ) permits an a ttorney in a disciplinary proceeding to provide
proof of mitig ating fa cts by a pre ponde rance o f evide nce.
-25-
Here, the undersigned finds the following mitigating evidence:
Roberson is an attorney who practiced for nearly 25 years without a prior
report of professional misconduct. This career has included public service as
a federal prosecutor, as a volunteer attorney in Georgia's Pro Bono Project, and
as a Continuing Legal Education faculty member. He has received honors and
recognition from the N AAC P, Savan nah State C ollege (now Savann ah State
University), the Savannah Legal Secretaries' Association, and other
organizations. He has donated little league football uniforms and offered
$35,00 0 initial fu nding f or a sch olarship endow ment. Jo int Exh ibit A.
Of particular significance to this case, Roberson now has completed a
settlement as to restitution claim s of his late client's estate with a payment of
$449, 385.26 and the estate has relea sed its cla ims aga inst him . Id., exhibits
17-19 .
Kimber ly Copeland, Esq., appeared at the Maryland hearing, testifying
that she is a m ember of the Geor gia bar and is president-e lect of the G eorgia
Alliance of Af rican-A merica n Attor neys. In addition to praising Roberson for
his good character and his reputation as “an outstanding attorney,” Ms.
Copeland reported statistics as to a disparity of Georgia attorney disciplinary
proceedings against African-American attorneys. She related that, of
approxim ately 28,000 attorneys admitted to practice in the state, only about
1,500 or 5% are African-Americans. Despite this, she reported that 30% of
those disbarred are African-Americans--that is, six times the rate for other
attorneys .
Fina lly, the undersigned notes that Respondent offered scant indication
of remorse at the Maryland h earing and that there is no evidence of this in the
Georg ia recor d.
Having reviewed this evidence, the undersigned shares questions about
the disproportionate disciplinary statistics of our sister state. Yet, Rob erso n's
high level of professional success suggests that he has no need of affirmative
action; the substantial quality of the evidence supporting the disciplinary
action, only p erem ptorily dispute d, ma kes r acia l disc rimin ation unlikely.
Despite the extensive mitigation, the undersigned concludes that the broad
array of professional misconduct in this serious matter calls for substantial
disciplin ary action such as disbarm ent or su spensio n and re comm ends th is.
-26-
Judge Caroom, then, determined that the Respondent violated MPPC 8.4(a) and (c)
(Misconduct), MRP C 1.7(a),(b) a nd (c) (Co nflict of Intere st), MRP C 1.5(a) (C learly
Excessive Fees), MRPC 1.5(i) (Contingent Fee), and MRPC 1.15 (Safekeeping Prope rty)
based upon his finding that the Geor gia disciplina ry proceeding and the ad judication o f guilt
of misconduct satisfied the requirements of Maryland Rule 16-773 and were “conclusive
evidence ” of the m isconduc t.
Bar Counsel took no exceptions to Judge Caroom’s findings of fact and conclusions
of law. On December 26, 2002, Respondent filed belated exceptions in this Court, iterating
complain ts which he had previously registered with the hea ring court and, ad ditio nally,
professing his remorse. Those earlier complaints involved the standard of proof applied in
the Georgia proceeding , Roberso n’s rejected d emand f or a jury trial in the G eorgia
proceeding, and the procedural rules that w ere adopte d by the Geo rgia Supreme Court after
the misconduct occurred but befo re the action w as filed. M aryland Rule 16-773(g ), by its
terms, limits challenges to the original adjudication in reciprocal discipline cases to “notice
and opportun ity to be heard” o r “infirmity of proof .” This Co urt, even prio r to the adoption
of this Rule, has recognized that Respondent is not allowed to collaterally attack either the
findings of fact or the judgment rendered by the orig inal jurisd iction. Attorney Grievance
Comm ’n v. Sabghir , 350 Md. 67, 81, 710 A.2d 9 26, 932 -33 (19 98). Further, Respond ent’s
remorse, although a factor th at may be consid ered in f ashion ing a sa nction, see Attorney
Grievance Comm’n v. Dunietz, 368 Md. 419, 430, 795 A. 2d 706, 712 (2002), also does not
-27-
come within an exception to the mandate of reciprocal discipline when properly proven.
Respondent’s exceptions are, therefore, overruled.
Turning to the appro priate sanction, Bar Counsel has recommended that Respondent
be disbarred from the practice of law as he was in the State of Georgia. Respondent has
requested that we consider a twelve-month suspension, with reinstatement conditioned upon
one or all of the following:
A.
B.
C.
Successf ully completing a course in Legal Ethics [Course to be
approved by the Attorney Grievance Commission of Maryland
or this Court];
If the Respondent re-enters the practice of law , appoint a
monitor of all trust account activity for the period of one (1) year
from the date the Respondent re-enters the practice of law [The
monitor to be appointed by this Court or the Attorney Grievance
Commission of Maryland]; and
If the Respo ndent re-enters the pra ctice of law , require him to
perform a set numb er of hou rs annually for two (2) years in pro
bono representation; such pro bono clients to be assigned by
Maryland Legal A id or other entity engaged in indigent
representation in the State of Maryland.
This Court ver y recently reinforce d its attitude tow ard impos ition of sanction in a
reciprocal discipline case in Attorney G rievance C omm’n v. Ruffin, 369 Md. 238, 253-254,
798 A. 2d 11 39, 1148 (2002 ):
We are pro ne, see Attorney Griev. Comm'n v. Sabghir , 350 Md.
67, 83, 710 A .2d 926, 93 4 (1998); Attorney Griev. Com m'n v.
Richardson, 350 Md. 354, 365-66, 712 A.2d 525, 530-31
(1998), but not req uired, see Attorney Griev. Comm'n v. Gittens,
346 Md. 316, 324, 697 A.2d 83, 87 (1997), to impose the same
sanction as that imposed by the state in which the misconduct
occurred. Indeed, the Court is duty-bound to assess for itself the
propriety of the sanction imposed by the other jurisdiction and
-28-
that recommended by the Com mission , Gittens, 346 Md. at 326,
697 A.2d at 88, to look not only to the sanction imposed by the
other jurisdiction, but to the pa rticular facts and circumstances
of each case, the outcome being dependent upon the latter, but
with a view tow ard consiste nt dispositions for similar
miscond uct. Attorney Griev. Comm'n v. Willcher, 340 Md. 217,
222, 665 A.2 d 1059, 1 061 (199 5) (quoting Attorney Griev.
Comm ’n v. Parsons, 310 M d. 132, 1 42, 527 A.2d 325, 330
(1987)); Attorney Griev. C omm 'n v. Saul, 337 Md. 258, 267-68,
653 A.2d 430, 434-35 (1995). We ordinarily will defer to the
sanctioning State when the two States' purpose in disciplining
counsel is the sam e. Id. at 327, 697 A.2d at 88 (footnote
omitted).
The State of Georgia, similar to Maryland, views the protection of the public as one
of the purposes of attorney discipline. This view is evident in In re Calhoun, 268 Ga. 675,
677, 492 S.E. 2d 514 , 515 (1997), where the Supreme Court of Georgia disbarred an attorney
“in order to protect the public from improprieties that injure the public’s trust in the atto rneyclient relationship.” See also In re Allison, 267 Ga. 638, 642, 481 S.E.2d 211, 215 (1997)
(recognizing that “the primary purpose of d isciplinary procee dings . . . is to protect the p ublic
from attorneys who are not qua lified to practice law due to incompetence or unprofessional
conduct”).
As a result, deferral to the dis cipline im posed in Geo rgia is ap propria te. As we have
noted, Respon dent has n ot demon strated by “clear a nd conv incing evid ence” that his
defenses are within the exceptional circumstances of Rule 16-773(e), nor do the mitigating
circumstances found by the hearing judge provide sufficient bases for a lesser sanction than
was entered in Georgia. In Sabghir , we stated:
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When the C ourt considers the appropriate sanction in a case of
reciprocal discipline, we look not only to the sanction imposed
by the other jurisdiction but to our own cases as well. The
sanction will depend on the unique facts and circumstances of
each case, but with a view toward consistent dispositions for
similar misco nduct.
350 Md. at 83-84, 710 A.2d at 934 (quoting Willcher, 340 Md. at 222, 665 A.2d at 1061
(quoting Parsons, 310 Md. at 142, 527 A.2d at 330)). Respondent, although without
disciplinary blemish in Georgia or Maryland prior to these proceedings, was found guilty of
some of the most egregious misconduct, involving dishonesty, impairment of professional
judgment, charging a clearly excessive fee, wilful disregard of a legal matter, and theft of
client funds, among others. In similar situations, we have disbarred other attorneys who have
committed such misc onduct. See, e.g., Attorn ey Grieva nce Com m’n v. M cLaugh lin, 372 Md.
467, 609-10, 813 A.2d 1145, 1170-71 (2002) (disbarring an attorney for professional
miscond uct, including theft of client funds, charging clearly excessive fees, and self-de aling);
Attorney Grievance Comm’n v. Spery, 371 Md. 560, 568-72, 810 A.2d 487, 491-94 (2002)
(disbarring attorney for theft from his real estate partners despite the a ttorney’s previo usly
unblemished twenty-eight year practice); Attorney G rievance C omm’n v. Bernstein , 363 Md.
208, 219-225, 768 A.2d 607, 613-16 (2001) (disbarring attorney for numerous violations of
MRPC for conduct involving deceit, the failure to communicate a contingent fee agreement
in writing, and the misapp ropriation of client fund s); Attorney Grievance C omm’n v. Morris ,
298 Md. 299, 307-08, 469 A.2d 853, 857 (1984) (disbarring for attorney misconduct, such
as charging clearly excessive fees, misrepresenting the amount of services rendered on a
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client bill, and attempting to bill a client for services rende red for another client).
We conclude that deferrin g to the jurisdic tion wher e the misco nduct occ urred is
appropriate in this case and that the appropriate sanction in this case is that imposed by the
Suprem e Court of Georgia , namely, disbarm ent.
IT IS SO ORDERED; RESPONDENT SHALL
PAY ALL COSTS AS TAXED BY THE
CLERK OF THIS COURT, INCLUDING
THE COSTS OF ALL TRANSCRIPTS,
PURSUANT TO MARYLAND RULE 16-761,
FOR WHICH SUM JUDGMENT IS
ENTERED IN FAVOR OF THE ATTORNEY
G R IE V A N C E C O M M IS S I O N OF
MARYLAND
AGAINST DAVID
ROBERSON.
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