Attorney Grievance v. Steinberg

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG NO. 6 SEPTEMBE R TERM 2004 ___________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND V. ANDREW M. STEINBERG ___________________________________ Bell, C. J. Raker Wilner Cathell Harrell Battaglia Greene JJ. ______________________________________ Opinion by Bell, C. J. ______________________________________ FILED: March 18, 2005 The Attorney Grievance Commission of Maryland (the Commission ), through Bar Counsel and pursuant to Maryland Rule 16-751,1 filed against Andrew M. Steinberg, the respondent, a Petition for Disciplinary or Remedial Action, in which it was alleged that he violated Rule 8 .1 (Bar Admission and Disciplinary Matters)2 and Rule 8.4 (M isconduct), 3 of the Rules of Professional Conduct, Appendix: Rules of Professional Conduct of the Maryland Rules, see Maryland Rule 16 -812. We referred the matter, pursuant to Rule 16752 (a),4 to the Honorable Eric M. Johnson of the Circuit Court for Montgomery County, for 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approva l of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 8.1 Bar A dmission and D isciplinary Matters An applicant for admission or reinstatement to the bar, or a lawyer in connection with a bar a dmission a pplication o r in connec tion with a d isciplinary matter, sh all not: * * * (b) fail to disclose a fact necessary to correct a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for information from an admissions or disciplinary authority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 3 Rule 8.4 Misconduct It is professional misconduct for a lawyer to: * * * (d) engage in conduct that is prejudicial to the administration of justice. 4 Rule 16-752 (a) provides: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any hearing pursuant to Rule 16 -757 (c). 5 The respondent having failed to respond to the Petition, an order of default was entered against him. He subsequently appeared in court on August 25, 2004, the day set for the hearing and cons ented to the entry of a def ault judgm ent, which the hearing court construed as essentially conceding to the allegations set forth in the petition. The responde nt has not contested that con struction. Thereafter, the court condu cted a h earing. Following the hearing, Judge Johnson, on October 7, 2004, having tak[en] judicial notice of the pleading and the fact that th e respond ent essentially admitted the allegations as set forth, made findings of fact, by clear and convincing evidence, and drew conclusions of law. These proceedings are the result of disciplinary proceedings instituted against the respondent in the District of Columbia by the District of Columbia Bar s Board of Professional Res ponsibility. Th at Bo ard d eterm ined that t he re spon dent, by failing to circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. 5 Maryland Rule 16-757 (c) provides: (c) Findin gs and co nclusions. T he judge s hall prepare and file or d ictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 2 respond to the District o f Colum bia Bar C ounsel, 6 had violated two of the District of Columb ia s Rules of Profe ssional Co nduct, i.e., Ru le 8.4 (d) (con duct that serio usly interfered with the admin istration o f justice ) and R ule 8.1 (b) (failing to re spond rea sonably to a lawful demand for information from Bar Counse l, a disciplinary auth ority), and a rule of court, R ule XI, ยง 2 (b) (3) (failing to comply with an order of the Board on Professional Responsibility issued in connection with disciplinary proceedings). The predicate for the rule violations found was the re sponden t s failure to resp ond to 6 At the time of the hearing, on August 25, 2004, the hearing court was informed that, as a result of those violations, the Board Of Professional Responsibility had recommended that the respondent be suspended for sixty (60) days, without a requirement of demonstrating fitness as a condition for reinstatement, a decision that the District of Columbia Bar Counsel appealed to the District of Columbia Court of Appeals and which was then pending. Although still pending when the hearing court entered its findings of fact and conclusions of law on October 7, 2004, the decision of the Court of Appeals has now b een issu ed. In re Steinberg, 864 A.2d 120 (D.C . 2004). Th e Court of Appea ls imposed as a sanction a 30 day susp ension, bu t required tha t the respon dent dem onstrate fitness as a condition for reinstatement. It explained: We agree entirely with the Hearing Committee's discussion of the appropriate sanction. As the Committee aptly noted in this case, [i]n light of Respond ent's repeated failures, the consequ ences should now be more severe. G iven Steinb erg's disciplinary his tory, and, in particu lar, his disregard of the quoted warning in Steinberg II and his rep etition of his misconduct in that case, we do not believe that a sixty-day suspension, without a re quiremen t of proof o f fitness, can reasonab ly be reconciled with that clear warning. Accordingly, Steinberg is hereby suspended from the practice of law for thirty days, and reinsta tement sha ll be condition ed on pro of of fitne ss to practice law. Id. at 122. 3 a letter the District of Columbia Bar Counsel sent him. That letter, dated January 4, 2002, transmitted a disciplinary complaint that had been filed against the respondent and requested that he respond within ten days. Further, the letter warned that failure to respond was a violation of the Rules of Prof essional Conduc t. The respondent did n ot respond to the letter, which was not returned. The letter was resent on Jan uary 28, 2002 , this time, in add ition to the complaint, transmitting a subpoena duces tecum. Again, it requested a response w ithin ten days and in dicated that th e respond ent had an obligation to respond to the comp laint, a failure to do so being cha rgeable as a disciplinary violatio n. As bef ore, the respo ndent did not resp ond. Nor did the respondent timely respond after being personally served with the letter and the subpo ena on Febru ary 13, 20 02, with answ er due F ebruar y 23, 200 2. Subsequently, on April 5, 2002, Bar Counsel obtained an order from the Board of Prof essio nal R espo nsib ility, requiring the respondent to respond to the ethical complaint within ten days of the order, or by April 15, 2002, and, still, the respondent failed to respond, although, once again, he received the order that had been mailed to him. Bar C ounsel s investigator served the respondent personally a sec ond time, th is time, on May 1, 2002, with the Board s April 5, 2002 order. The respondent did not file an answer to the B oard s order until November 1, 2002, when he hand delivered a letter dated October 28, 2002 to the Board. The hearing co urt conclud ed that the res ponden t, by his actions and admissions ... unethically and unprofessionally violated Rule 8.1 [(b)] 4 of the Bar Admission and Disciplinary Matters. It also concluded, albeit implicitly, that the respondent s conduct was prejud icial to the admin istration o f justice , in violat ion of R ule 8.4 ( d). No exception s have be en filed to the trial court s findings of fact and conclusions of law. Both the p etitioner and th e respond ent have f iled recommendations for sanction, howe ver. The petitioner reco mmend s that the respondent be suspended indefinitely from the practice of law, a sanction the petitioner considers greater than that received by the respondent in the District of Columbia, where the misconduct occurred, and greater than ordinarily would b e requested by the petitioner. In support of that recommendation, the petitioner directs our atte ntion to the respon dent s prior g rievance h istory, which ref lects that the respondent has eng aged in prio r miscond uct, some, in particular, of a similar nature to that for wh ich thes e proce edings were in stituted. In 2000, the District of C olumbia Cou rt of Appeals, noting that he w as extremely dilatory in responding to Bar Counse l s requests for informatio n on two separate bu t chronolog ically overlappin g matters an d failed to cooperate with the investigations, In Re Steinberg, 761 A. 2d 279, 280 (D. C. 2000), suspended the respon dent for thirty da ys, and this Co urt reciprocated. Attorney Griev. Comm n v. Steinberg, Misc. Docket (AG), No. 46, September Term, 2000 (Dec. 21, 2000). Subsequently, on April 17, 2001, the respondent was issued an informal admonition by the District of Columb ia Bar Counse l for, in violation of Rule 1.4 (a) of the Rules of Professional Condu ct, failing to keep a client reasonably informed as to the status of the client s case and, 5 earlier, in 1984, he had been issued an informal admonition for improperly distributing funds from a settlem ent, in violation of DR 9-103 (B) (4) of the Code of Professional Respo nsibility. The petitioner also relies on a Virgi nia repr imand , to whic h we re ciproca ted, Attorney Griev. Comm n v. Steinberg, 348 Md. 1, 702 A. 2d 690 (1997), that the respondent received for misc onduct in violation of th e Co de of Pro fess iona l Res ponsibility. That misconduct involved, the petitioner advises an d our opin ion reflects, n eglect of a c lient s case, failu re to deal honestly with the client, failing to return unearned fe es and failing to turn the client s file over to new counsel. The District of Columbia Court of Appeals sanctioned the respondent for this same condu ct by susp ending him fo r thirty days. In Re Steinberg, 720 A. 2d 9 00 (D . C. 199 8). Fina lly, the petitioner calls our attention to what the District of Columbia Court of Appea ls mostly recently said with respe ct to the respo ndent s dilato ry conduct: Attorneys cannot be allowed to willfully ignore and frustrate the efforts of Bar Coun sel ... to obtain resp onses to ch arges of se rious ethical m isconduc t. Attorneys must know that if they choose this course of action, the conseq uence s will be severe . Steinberg, 761 A. 2d at 280. The wisdom of that observation and the respondent s grievance history suffice to warrant the imposition of the sanction it recommends, the petitioner submits. The respondent opposes an indefinite suspension, the sanction recommended by the 6 petitioner and recommends the same sanction, a sixty (60) day suspension7 , as that the District of Columbia Board of Professional Responsibility recommended to the District of Columb ia Court of Appeals. Emphasizing his belief that the sanction he received from the District of Columbia is required to be imposed as the sanctio n of this C ourt, the respondent notes that, notwithstanding the District of Columbia court s observation with respe ct to the need for lawyers to be aware of the consequences of non-cooperation with Bar Counsel, the Court of Appeals did not impose an indefinite suspension, as the petitioner proposes. The only issue to be resolved is, the refore, the ap propriate san ction to be im posed in Maryland. The con duct that is the basis for the violations of the Rules of Professional Conduct found, occurr ed in the District of Colum bia and is directly related to that court system s disciplinary structure and procedures. And the conduct resulted in a sanction being imposed by the District of Columbia Court of Appeals. Nevertheless, the petitioner did not initiate, or process, this case as a reciprocal discipline matter. Consequently, the rules applica ble to rec iprocal d iscipline cases d o not ap ply. See Maryland Rule 16-773.8 7 The respondent argued in this Court that he had been suspended for sixty days and that that sanction was imposed by a full panel of the Court of Appeals, which determine d, because of his ultima te coopera tion with B ar Coun sel, it to be the ap propriate one. The respondent is wrong. As indicated supra, note 6, while the Board of Professional Responsibility recommended a sixty day suspension, without the requirement that fitness to practice be shown before readmission, the actual sanction imposed by the D.C. Court of Appeals was a 30 day suspension, with the requirement that, as a condition for reinstatement, the respondent establish his fitness to practice. 8 Rule 16-773(g) limits challenges to the original adjudication in reciprocal discipline cases to notice and opportunity to be heard or infirmity of proof see Attorney Griev. Comm'n v. Roberson, 373 Md. 328, 818 A.2d 1059 (2003), although 7 The purpose of the sanction imposed on a n attorney following disciplinary proceedings is to protect the public rather than to punish the attorney who engages in miscond uct, and the decision as to sanction in a particular case does, and must, depend on the facts and circumstances of that case. E. g., Attorney G riev. Com m n v. M acDou gall, 384 Md. 271, 283, 863 A. 2d 312, 320 (200 4); Attorney Griev. Comm n v. Santos, 370 Md. 77, 88-89, 803 A .2d 505, 511-12 (2 002). 9 Notwithstanding that the petitioner has not sought either party to the proceedings may show why corresponding discipline or inactive status should not be imposed, Maryland Rule 16-773(c), and seek to establish, by clear and convincing evidence, that exceptional circumstances exist that will allow avoidance of the re ciproca l disciplin e. Rule 16-77 3 (e). 9 This sta ndard a lso app lies in the case of recipro cal disci pline. See Attorney Griev. Co mm'n v. R uffin, 369 Md. 238, 253-254, 798 A.2d 1139, 1148 (2002), in which we recently explained our approach to reciprocal discipline: We a re pron e, see Attorney G riev. Com m'n v. Sabg hir, 350 Md. 67, 83, 710 A.2 d 926, 93 4 (1998); Attorney Griev. Comm'n v. Richardson, 350 Md. 354, 365-66, 712 A.2d 525, 530-31 (1998), but not required, 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 miscon duct occu rred. Indeed , the Court is d uty-bound to assess for itse lf the propriety of the sanction imposed by the other jurisdiction and that recom mend ed 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 particular facts and circumstances of each case, the outcome being dependent upon the latter, but with a view toward consistent dispositions for sim ilar misc onduc t. Attorney Griev. Comm'n v. Willcher, 340 Md. 217, 222, 665 A.2d 1059, 1061 (1995) (quoting Attorney Griev. Comm'n v. Parsons, 310 M d. 132, 142 , 527 A.2d 325, 330 (1987)); Attorney Griev. Comm'n v. Saul, 337 Md. 258, 267-68, 653 A.2d 430, 434-35 (1995). We ordinarily will de fer to the san ctioning Sta te when th e two State s' purpose in disciplining counsel is the same." [Gittens,] 346 M d. at 327 , 697 A .2d at 88 . See Attorney G riev. Com m n v. A yres-Fountain , 379 Md. 44, 57, 838 A. 2d 1238, 1246 (2004); Attorney Griev. Comm n v. Roberson, 373 Md. 328, 355-56, 818 A.2d 1059, 1076 (2003). 8 reciprocal discipline, the f acts and circum stances in this case, very imp ortant ones , at that, include that the con duct war ranting san ction occu rred in the D istrict of Colu mbia and that, after considering the matter, the District of Columbia Court of Appeals has imposed a sanctio n. Attorney Griev. Comm n v. Ayres-Fountain, 379 Md. 44, 838 A. 2d 1238 (2004) is instructive. In that case , the respondent was essentially a Delaware lawyer and the misrepresentations upon w hich the pe titioner in this C ourt principally relied w ere made in certifications contained in annual filings required to be made to the Supreme Court of Delaware in support o f its oversig ht of the admin istration o f justice in that S tate. Id. at 58, 838 A. 2d at 1246. We deferred to the Supreme Court of Delaware, cognizant that the Delaware Suprem e Court w as fully informed of the facts and circumstances of the resp ondent's conduct and had reviewed, co nsider[ing] the matter carefu lly, the Report and Recommendation of Sanction of the Board of Professional Responsibility, which contained, in addition, the B oard s discu ssion of the consideratio ns it took into account in fashioning the sanction rec ommen dation and its painstaking analysis of the cases bearing on the proper sanctio n. Id. We explained: where a respondent s most serious misconduct involves misrepresentations, and those misrepresentations are to the Supreme Court of the State in which he or she princip ally practices and that sanction ed him or her, it ordina rily is appropriate to defer to that court, notwithstanding that the sanction it imposed is not identical to the one that may have been imposed by this Court were the same c onduc t to have occurr ed in this State. Id. at 59, 838 A. 2d at 1247. 9 A similar analysis is appropriate, we believe, in this case. The extended fa ilure to cooperate occurred in the District of Columb ia and had a direct and adverse im pact on its grievance mechanism. It is obvious that the Court of Appeals of the District of Columbia, whose responsibilities, like ours, include oversight and regulation of the profession, was aware of the cha rges, any mitiga ting or aggr avating fa ctors and ca refully weighed the recommendations, especially the rationale for that of the Board of Professional Responsibility. Accordingly, the responde nt is indefinitely suspended from the practice of law.10 The resp ondent s re instatemen t to the Ma ryland bar w ill be conditioned upo n his reinstatement to the District of Co lumbia bar. IT IS SO ORDERED; RESPONDENT 10 Both the p etitioner and th e respond ent believe, a pparently, that an indefinite suspension is a different, and more severe, sanction than that imposed by the District of Columbia. It is not. As indicated the Court of Appeals ordered the respondent suspen ded fo r 30 days , but req uired a s howin g of fitn ess as a c onditio n for re instatem ent. Thus, the re sponden t may be reinsta ted to the pra ctice of law in the District o f Colum bia only by order of the court. We pointed out in Attorney G riev. Com m n v. Ru ffin, 369 Md. 2 38, 253 , 798 A .2d 113 9, 1148 (2002 ), Unlike an indefinite suspension, in Maryland, a suspension for a specified period does not trigger a reapplication process or require Court approval for reinstatement; all that is required is that the attorney certify compliance with the terms of the suspension and Bar Counsel confirms the certification and is sa tisfied o f the tru th of the certifica tion. Se e Mar yland 16 -713.a.2 . In Maryland, therefore, an indefinite suspension ordinarily is the equivalent of any suspen sion, no matter th e length , that requ ires a co urt orde r for rein stateme nt. 10 SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLU DIN G COSTS T R A NS C R I P T S , OF PURSUANT A LL TO MARYLAND RULE 16-715.C., FOR WHICH ENTERED SUM IN ATTORNEY JUDGMENT FAVOR OF IS TH E GRIEVANCE COMMISSION AGAINST ANDREW M. STEINBERG. 11