Attorney Grievance v. Lanocha

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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket (Subtitle AG) No. 16 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. N. FRANK LANOCHA Bell, C.J. Wilner Cathell Harrell Battaglia Greene, Eldr idge , Joh n C. ( Reti red, S peci ally Assigned) JJ. Opinio n by Bell, C .J. Wilner, Cathell, and Battaglia, JJ., Dissent __________________________________________ Filed: April 14, 2006 Rule 1.8 (c)1 , Conflict of Interest: Prohibited Transactions, of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812, addresses the situation in which a lawyer drafts, f or a non-re lated client, a w ill that grants a substantial gift to the lawyer or a covered relative and the conflict caused thereby. It provides: (c) A lawyer sh all not prepare an instrument giving the lawyer or a person related to the lawyer or a person related to the lawyer as parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, 1 By Rules Order da ted February 8, 2005, Rule 1.8 (c) was revised, effective July 1, 2005. It now reads: A lawyer shall not solicit any substantial gift from a client, including a testamentary gift, or prepare on behalf of a client an instrumen t giving the la wyer or a person related to the lawyer any substantial gift unless the lawyer or other recipient of the gift is related to the client. For purposes of this paragraph, related persons include a spouse, child, grandchild, parent, grandparent or other relative or individual wit h whom the lawyer or the client maintains a close, familial relationship. Because the respon dent s misc onduct oc curred prio r to the promulgation of the c urrent 1 .8 (c), the former 1.8 (c) applies to this case. With respect to the present Rule, the Comment confirms that independent counsel still is contemplated: "Gifts to Lawyers [6] A lawyer may accept a gift from a client, if the transaction meets general standards of fairness. For example, a simple gift such as a presen t given at a h oliday or as a tok en of app reciation is permitted. If a client offers the lawyer a m ore substan tial gift, paragraph (c) does no t prohibit the law yer from acc epting it, although such a gift may be voidable by the client under the doctrine of undu e influenc e, which tre ats client gifts as presump tively fraudulent. In any event, due to concerns about overreaching and imposition on clients, a lawyer may not suggest that a substantial gift be made to the lawyer or for the lawyer's benefit, except where the lawyer is related to the client as set forth in paragrap h (c). [7] If effectuation of a substantial gift requires preparing a legal instrument such as a will or conveyance, the client should have the detached advice that another lawyer can provide. The sole exception to this R ule is w here the client is a relative o f the do nee." except where: (1) the client is related to the donee; or (2) the client is represented by independent counsel in connection with the gift. This Rule was before this Court, involved in two disciplinary proceedings, during the 2003 Term: Attorney G riev. Com m n v. Stein , 373 Md. 531, 819 A.2d 372 (2003) and Attorney Griev. Comm n v. Brooke, 374 Md. 155, 82 1 A. 2d 414 (2 003). Interpreting the Rule, we defined and established its scope and application. We concluded: The Rule is mandatory and contains no provision for waiver of the provision to consult with in dependent counsel. ... The Rule is qualified in only three ways: (1) if the gift is not substantial, (2) if the client is related to the attor ney, or (3) if the clie nt has con sulted with in depende nt counsel. Unlike the provision under the Ethical Considerations of our prior rule, this provision and pro hibition is expre ss and m andato ry. Stein, 373 Md. at 537, 819 A.2d at 375-76. Characterizing the violation of the Rule as a most serious one, id. at 538, 819 A.2d at 376, we com mented on the re asons for the R ule and the concerns at which it was directed: There are many po tential dange rs inherent in a n attorney draf ting a will in which he or she is the b enef iciar y. Con flict of in teres t, the attor ney's incompetency to testify because of a transaction with the deceased, the attorney's ability to influenc e the testator, the possible jeopardy to probate of the entire will if its admission is contested, the possible harm to other beneficiaries and the undermining of the public trust and confidence in the legal pro fession are som e of the dange rs. Id. at 538, 819 A.2d at 376, citing In re Polevoy, 980 P.2d 985, 987 (Colo.1999); P hilip White, Jr., Ann otation, Atto rneys At Law: Disciplinary Proceedings for Drafting Instrument Such as Will or Trust Under Which Attorney-Drafter or Member of Attorney's Family or Law 2 Firm is Beneficiary, Grantee, Legatee, or Devisee, 80 A.L .R.5th 5 97 (20 00). Brooke, 374 Md. at 178, 821 A. 2d A. 2d at 427. Moreover, ignorance of the Rule is not a de fense. Stein, 373 M d. at 542, 81 9 A. 2d a t 379; Brooke, 374 Md. at 179-80, 821 A. 2d at 428. N. Frank Lanocha, the respondent, drafted the Last Will an d Testam ent for his clie nt, Sarah Ann Ester Straw. By that will, the respondent s wife received a bequest of $10002 and, but for a secon d beques t for $200 0 to Chim es, Inc., the rest a nd residue of the estate was bequeathed to the respondent s adult daughter. After the death of Ms. Straw and following the admission of the Last Will and T estament to probate in the Orph ans Court for Ba ltimore Cou nty, the Chief Judge of that Court wrote to Bar Counsel, inform ing him of a possible violatio n of R ule 1.8 ( c). Thereafter, Bar Counsel, acting with the approval and at the direction of the Attorney Grievance Com mission of M aryland, th e petition er, see Rule 16-751,3 filed a Petition For 2 No issue has been made as to the bequest to the re spon den t's wife; thus we do not addres s whe ther a be quest o f $ 100 0 is, or is n ot, sub stantial. 3 Md. Rule 16-751 (a) provides: (a) Commencement of Disciplinary or Remedial Action. (1) Upon approval of 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)Conviction of Crime; Reciprocal Action. If authorized by Rule 16771(b) or 16-773(b), Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals without prior approval of the Commission. Bar Counsel promptly shall notify the Commission of the filing. The Commission on review may direct the withdrawal of a petition that was filed pursuant to this subsection. Bar Co unsel prev iously had filed a Statem ent of Ch arges aga inst the respo ndent. (continued...) 3 Disciplinary or Remedial Action against the re sponden t. In addition to charging a violation of Rule 1.8 (c), as expected, the petitioner also alleged a violation of Rule 8.4 (d)4 of the Maryland R ules of Pro fessional C onduct. Following a hearing, the Hon. S usan Souder o f the Circuit Court for Baltimore 3 (...continued) Adopted November 30, 2000, effective July 1, 2001, Maryland Rule 16-741 governs the filing of statements of charges. It provides: (a) Filing of Statement of Charges. (1) Upo n comple tion of an in vestigation, B ar Coun sel shall file with the Commission a Statement of Charges if Bar Counse l determines that: (A) the attorney either engaged in conduct constituting p rofessiona l miscondu ct or is incapacitated; (B) the professional misconduct or the incapacity doe s not warra nt an imm ediate Petition for Disciplinary or Remedial Action; (C) a Co nditional D iversion A greemen t is either not appropriate under the circumstances or the parties were unable to agree on one; and (D) a reprimand is either not appropriate under the circumstances or (i) one was offered and rejected by the attorney, or (ii) a proposed reprimand was disapproved by the Commission and Bar Counsel was directed to file a Statem ent of C harges . The fi ling of th e statem ent of c harges trigger ed the p eer revi ew pro cess, see Rules 16741(b), 16-742, and 16-743, which was completed prior to the filing of the Petition for Disciplinary or Remedial Action. 4 Rule 8.4 (d) provides that [i]t is professional misconduct for a lawyer to: (d) engage in conduct that is prejudicial to the administration of justice. 4 Cou nty, to whom, pursuant to Rules 16-752,5 we forwarded the case, made findings o f fact, see Rule 16-757 (c), 6 by clear and convin cing ev idence , see Rule 16-757 (b ),7 as follows: A will was prepared by respondent N. Frank Lanocha for his client, Sarah Ann Ester Straw to whom he was not related. The will provided a $1,000 bequest from M s. Straw to Teresa W. Lanoch a, Respondent s w ife. In addition, the will also provided that the rest and residue o f Ms. Straw s estate was bequeathed to Teresa Lanocha-Sisson (also known as Teresa M. 5 Rule 16-7 52 provid es, as relevan t: (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 circu it 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 settin g dates for the com pleti on of discovery, filing of motions, and he aring. 6 Rule 16-757 (c) provides: (c) Findings and conclusions. The judge sha ll prepare an d file or dictate into the record a statement of the judge's findings of fact, includin g findings as to any eviden ce rega rding re media l action, a nd con clusion s of law . If dictated into the record, the sta tement sha ll be promp tly transcribed. U nless 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. 7 Rule 16-7 57(b) prov ides: The petitioner has the burden of proving the averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter b y a prepo nderan ce of th e evide nce. 5 Sisson). In the event Ms. Lanocha-Sisson were to predecease Ms. Straw, the rest of Ms. S traw s estate was bequeathed to Ms. Lanocha-Sisson s sons, Responden t s grandsons. There is no dispute that the latter gift was substantial. There is no indication that duress or improper influence were brought to bear on Ms. Straw by Respondent or anyon e else. Ms. Straw was not represented by independent counsel in connection with will although Mr. Lanocha suggested that she consult other counsel. Ms. Straw did not wish to consult an attorney she did not know nor involve a stranger in her personal affairs. Respondent had no knowledge whatsoever of Rule [1.8 (c)] or its existence or content. ... The hearing co urt conclud ed, on these facts, that the re was a v iolation of Rule 1 .8 (c) of th e Mar yland Ru les of P rofessi onal C onduc t. Both the petitioner and the respondent took exception to the hearing court s findings of fac t and co nclusio ns of la w. The petitioner s single exception is to the hearing court s failure to find a violation of Rule 8.4 (d). It relies on Brooke, in which this Court overruled the responde nt s exception to the hearing co urt s finding in that case of a violation of Rule 8.4,8 in addition to the un contes ted find ing of th e Rule 1.8 (c) violation. The petitioner reminds us that we 8 Brooke was charged with a v iolation of Ru le 8.4 (a) and (d) . Attorney Griev. Comm n v. Brooke, 374 Md. 155, 161 n. 3, 821 A.2d 414, 417 n. 3 (2003). Although the hearing court determine d that Broo ke violated Rule 8.4 a nd merg ed it with the Rule 1.8 (c) violation, id. at 162 n. 5, 821 A. 2d at 418 n. 5, it did not specify whether the violation found was of one or both of the sections. We assume that the determination was as to both sections. The petitioner says tha t the Court a ddressed th e violation of Rule 8.4 generally and the respondent asserts that the Rule 8.4 v iolation pertain ed to section (c). The basis of those assertio ns is un clear. 6 held in Brooke that, because [a] violation of the Rules of Professional Conduct may be a basis for finding a violation of Rule 8.4, 374 Md. at 177, 821 A. 2d at 426, the hearing court properly found that violation on the basis of the Rule 1.8 (c) violation. The respondent acknowledges the Brooke holding and that it supports the petitioner s position. He asks that the Court re-examine the need for or purpose of finding a violation of a specific rule in this instance MRPC 1.8 (c), which itself affords a basis for imposing whatever sanction the Court deems appropriate, also is sanctionable, premised upon the same allegedly sanctionable conduct, under another rule, in this instance 8.4 (d). The respondent offers as reasons for the reconsideration, reminiscent of the arguments Brooke made and the concerns we addressed in that case, the lack of any necessity to do so and avoidance of the aura of piling on. Responding to the argumen ts made by the responde nt in that case, th is Court, in Brooke, pointed out that the finding of a violation of one Rule of Professional Conduct based on the violation of another was not double punishment, did not run afoul of the purpose of attorney discipline and that, in any event, the finding of a rule violation differs from the sanction. 374 Md. at 177, 821 A. 2d at 426. In the latter regard, we made clear that the number of violations does not determine the appropriate sanction, the facts and circumstances of the parti cular ca se do. Id., citing Attorney Grievance Comm'n v. Briscoe, 357 Md. 554, 568, 745 A.2d 1037, 1044 (2000) (quoting Attorney Grievance Comm'n v. Milliken, 348 Md. 486, 519, 704 A.2d 12 25, 1241 (1998)). W e shall sustain the petitioner s exception, for the 7 reasons stated in Brooke. The respondent filed several exceptions.9 First, he excepts to the hearing court s conclusion that he violated Rule 1.8 (c). Next he excep ts to the hearing court s failure to address the tension between a lawyer s duty to his client and his duty to comply with the disciplinary or other regulatory rules. Specifically, the respondent believes that the court should have dea lt with, as he put it, the issue regarding actual or potential tensions between a lawyer s duty and responsibility to carry out the instructions of a client, in this instance disposition, upon her demise, of all of Mrs. Straw s worldly possessions in the manner that she chose and looked to respo ndent to implemen t and respondent s obligation to comply with rules regulating lawyers conduct, a patently difficult and demanding task which often requires not only wisdom, but a judicious exercise of so und judg men t as w ell. Fina lly, positing that the disciplinary proceedings had their genesis in a caveat action filed in the Baltimore County Orphans Court and noting that the caveat proceedings have been dismissed, and had been prior to his hearing in the Circuit Court, the respondent takes exception to the fact that the hearing court made no findings of fact or drew any conclusions of law with respect to the effect on the instant disciplinary proceeding of dismissal of the underl ying cav eat case from w hich it ar ose. 9 One of the respondent s exceptions challenges the hearing court s failure to acknowledge that, in addition to the specific bequest to the respondent s wife there was a bequest for $2,000 to Chimes, Inc. The respondent is, of course, correct. We view the matter as simply an o versight an d note that it has no significance to the resolution of the issue before this C ourt. 8 The dispositive exception is the first one mentioned - to the conclusion, without further elaboration of facts than those found by the hearing court, that the respon dent s drafting of a will, the terms of which made a substantial bequest to his daughter, for Mrs. Straw, his long-time client, to whom he was not related, an d who, d espite being advised to do so, did not seek , and theref ore was n ot represen ted by indepe ndent cou nsel in connection with the will, violated Rule 1.8 (c). If we continue to hold, as we held in both Stein, 373 Md. at 537, 8 19 A.2 d at 375 , and Brooke, 374 M d. at 180, 82 1 A.2d a t 428 ( Ru le 1.8 (c) is absolute--an attorney may not prepare an instrument designating himself as legatee under the circumstan ces presen ted herein ), that the Rule s prohibition is both mandatory and absolute, the other two exception s are moo t. The responde nt recogniz es that Stein and Brooke make compliance with the requireme nts of Rule 1.8 (c) mandatory and that, therefore, a violation follow s inexorab ly when they are not. Indeed, he characterizes the Stein/Brooke approach as a per se approach to Rule 1.8 (c). Accordingly, the respondent proffers differences between his case and Stein and Brooke, which, he maintains, either require additional fact findings or demons trate that the conclusion of the hearing co urt does no t rest on the req uisite evidentiary foundation. In Stein, he reminds us, the idea of the substantial gift which went to the attorney came from the attorney himself. See 373 M d. at 543 , 819 A .2d at 37 9. The respondent characterizes this differenc e as striking a nd perha ps decisive . In both Stein and Brooke, unlike in the case sub judice, the respondent points out that the testamentary provision benefitted the 9 lawyer who drafted the will. Here, the beneficiary was the respon dent s dau ghter, who is both, the respondent asserts, adult and sui juris and beyond respondent s control with respect to the late Mrs. Straw s testamentary gift to her. Finally, he says, the concern expressed by the Court with respect to the inevitable lack of primary evidence, after the testator s death, as to the circumstances of the gift or the making of the will are alleviated or mollified in this case by the availability of two witnesses, one to be sure, being the respondent s daughter and beneficiary, the other a seemingly independent witness, Mrs. Straw s handyman and friend. These differences are not, s ingly or cu mulative ly, a sufficient basis for changing the approach that we took in Stein and continued in Brooke or for viewing the respondent s case from a different perspective. The concerns we identified in Stein, some of which the respondent relie s on, simp ly drive the need for the R ule and make its violation a very serious matter. That list was not, and was not intended to be, an exhau stive list. See 373 Md. at 376, 8 19 A.2 d at 537 . Nor did it list the concerns in the order of the importance that we ascribed to the various perceived dangers. We listed the public s confidence in the courts last and, yet, later reiterated that concern, a nd only that one, when announcing the sanction we determined to be the appropriate one: We find an indefin ite suspensio n is warran ted in this case . While respondent s lack of prior ethical violations is a mitigating factor, it does not justify a repriman d. As stated above, w e consider a violation of Rule 1.8 (c) to be most serious . Respondent s conduct undermines the public confidence in the leg al profe ssional i n a partic ularly egre gious m anner. 10 Id. at 379, 81 9 A.2d at 543. See Brooke, 374 Md. at 180, 821 A.2d at 428 ( Deterrence of such conduct and the public confidence in the legal profession can only be preserved by protecting against this behavior ). The respondent s exceptions are overruled. Both the petitioner and the respondent submitted recommendations regarding sanction. Aware of the Court s imposition of an indefinite suspension in both Stein and Brooke, neither of whom had a disciplinary history, the petitioner recommends that the respondent be ordered in definitely suspe nded fro m the prac tice of law , with the righ t to reapply after ninety (90) days. The recommendation is justified, the petitioner states, given the facts that the respondent was reprimanded in 2001 for violations of Rules 1.15 (b)10 and 8.1 (b)11 and because, unlike Stein, who suggested that he be made the beneficiary, the 10 Rule 1.15(b) provides: (b) A lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for the purpose. 11 Rule 8.1 (b) provides: An applicant fo r admission or reinstatement to the bar, o r a lawyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall 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 requ ire disclosure of information otherw ise prote cted by R ule 1.6. 11 respondent did no t suggest the bequest to his da ughter. Although conceding that he meets all of the prerequisites for violating the rule--he drafted the will, for a p erson to whom he was u nrelated, the w ill bequeathed a substantial gift to his daughter and the testator was not represented by independent counsel and did not seek such counsel--and that Stein and Brooke reflect this Court s adoption of a bright line rule as to the sanction to be administered for violation of Rule 1.8 (c), the respondent nevertheless urges that the proceedings be dismissed and that no sanction be issued. He bases that recommendation on his view of the me rits of his various exceptions. Those exceptions have been overruled, howev er. Anticipating that eventuality, the respondent s fall-back position is that the app ropriate sanction is a reprimand or a period o f suspens ion not to ex ceed thirty (30) days. In both Stein and Brooke, the beneficiaries of the client s substantial testamentary gift was the attorney who prepared the will. In one case, it was the attorney himself who suggested that he be given the bequest. In this case, although the beneficiary is the attorney s daughter, sh e is an adult a nd, as the res ponden t points out, sui juris and beyond respondent s compuls ion and co ntrol with res pect to the late Mrs. Straw s testam entary gift to her. There is no evidence that the respo ndent orch estrated the b equest to his daughter or will shar e in it in an y way. Indeed, the opposite is the case, the hearing court w as clear: There is no indication that duress or improper influence were brought to bear on Ms. Straw by Respondent or anyone else. Ms. Straw was not represented by independent counsel in connection with the will although Mr. Lanocha suggested that she consult counsel. Ms. Straw did not wish to consult an 12 attorney s he did n ot know nor inv olve a s tranger in her p ersona l affairs . Under the circumstances, we believe that the a pprop riate san ction is a reprim and. See State v. Eisenberg, 138 N.W.2d 235 (Wis. 1965 ) (reprimanding an attorne y for drafting a will, disinheriting his unc le s wif e and d aughte r, in favo r of his m other, from whom he might inherit); In re Disciplinary Action Against Boulger, 637 N.W.2d 710 (N.D. 2001) (reprimanding attorney for drafting will codicil that included provisions giv ing him substantial contingent testamentary gift, even though the contingencies did not arise12 ). See also In re Blair, 840 So.2d 1191 (La. 2003) (imposing a three (3) month suspension on attor ney, with no prior disciplinary record, who was relatively inexperienced and expressed sincere remors e, for pr eparing will for client tha t gave a ttorney's w ife testam entary gif t). IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE 12 In In re Disciplinary Action Against Boulger, 637 N.W.2d 710, 714-15 (N.D. 2001), the court elaborated: There are considerable mitigating circumstances in Boulger's favor. Boulger has practiced law in this state for many years and has no prior disciplinary record or histor y of prior m iscond uct. W hile Boulger acknowledges having drafted the instruments with contingent devises to himself, he has made full and free disclosure of the circumstances of this case to the Disciplinary Board and has been cooperative throughout the proceedings. Under these circumstances, an admo nition wo uld have perhaps been the most ap propriate sanctio n. 13 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 GRIEVANCE COMMISSION OF MARYLAND AGAINST N. FRANK LANOCHA. 14 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket (Subtitle AG) No. 16 September Term, 2005 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. N. FRANK LANOCHA ______________________________________ Bell, C.J. Wilner Cathell Harrell Battaglia Greene Eldridge, Jo hn C. (Re tired, Specially Assigned), JJ. ______________________________________ Dissenting Opinion by Wilner, J. ______________________________________ Filed: April 14, 2006 I concur in the Court s sustaining of Bar Counsel s exception and its overruling of Lanocha s exception. Subject to one critical caveat, I agree as well that, under the facts here, a reprimand would be the appropriate sanction to be imposed. The caveat is the one tha t I noted in my dissent in Attorney Grievance v. Stein, 373 Md. 531, 545-49, 819 A.2d 372, 38082 (2003 ). In my view , the only effectiv e and prac tical way to enf orce M RPC 1 .8(c) is to require the errant lawyer to disgorge the fruits of his violation of the Rule by renouncing, or causing any family member w ho is selected as the benef iciary to renounce, th e legacy obtained in violation of the Rule. It may well be, and for purposes of this case I am willing to accept, that Mr. Lanocha s version of what occ urred is entirely accurate that he did nothing to induce Ms. Straw to leave a substantial part of her Estate to Lanocha s daughter and that she insisted on making that gift but we will never really know, because Ms. Straw is dead and cannot testif y. That is the problem in every one of these cases: we get only one sid e of the story. The Court agr ees that com pliance w ith the Rule is mandato ry and that a violation follows inexorably when the requirements of the Rule are not satisfied. But notwithstanding the rhetoric, it insists on making the Rule a toothless and clawless tiger by providing no effective sanction for its violation. I continue to believe, and with each new case continue to b eliev e eve n mo re fir mly, that the wa y to avoid violations of the Rule is the simple expedient of requiring the lawyer, as a minimal sanction for violating the R ule, to disgorge what the lawyer wrongfu lly created. If lawyers kno w that a vio lation of the R ule will bring them no financial gain, they will have n o incentive to violate the Rule, and that, above all else, is what will protect the public. Id. at 548, 819 A.2d at 382. The legacy here was not to Lanocha but to his adult daughter, and Lanocha has argued that he had no control over his daughter s acceptance of the legacy, that it was not w ithin his power to have her renounce it. I am unwilling to accept that as a given. For o ne thing, there is nothing in th e record to in dicate that he ever asked her to renounce it. A caveat was filed to the Will, and Lanocha was advised at that time by his own lawyer that what he had done was in violation of the R ule. I am de eply skeptical tha t, if Lanoch a had info rmed his daughter that the result of her accepting the legacy might well be his suspension from the practice of law for violation of a Rule of Profe ssional Co nduct, she would nonetheless have insisted on acc epting th e legac y. I wo uld s uspe nd M r. La nocha in defi nitel y. -2- IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 16 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION v. N. FRANK LANOCHA Bell, CJ. Wilner Cathell Harrell Battaglia Greene Eldridg e, John C. (Re tired, Specially Assigned) JJ. Dissen ting Op inion b y Battaglia , J., which Cathell, J., joins Filed: April 14, 2006 I respectfully dissent. I do not believe that a reprimand is commensurate with the sanctions that we have imposed in cases involving violations of Rule 1.8 (c). Based on the language of Rule 1.8 (c), as well as the reasoning of this Court s opinions in Attorney Grievance Comm n v. Stein, 373 Md. 531, 819 A.2d 372 (2003), and Attorney G rievance Comm n v. Brooke, 374 Md. 155, 821 A.2d 414 (2003), in which this Court ordered an indefinite suspension, I also would impose the sanction of an indefinite suspension upon Mr. Lanocha. In determining that a reprimand is appropriate, the majority distinguishes Stein and Brooke based on the fact that in both cases the attorney who prepared the will was also the beneficiary of a substantial te stamentary gif t. The version of Rule 1.8 (c) that was in effect at the time of Mr. Lanocha s violation provided: (c) A lawyer shall not prepare an instrument giving the lawyer or a person related to the lawyer as a parent, child, sibling, or spouse any substantial gift from a client, including a testamentary gift, except where: (1) the client is related to the donee; or (2) the client is represented by independent counsel in c onnection with the gif t. Maryland Rules o f Professional Co nduct, Rule 1.8 (c) (200 4).1 As we noted in Stein: The Rule is qualified in only three ways: (1) if the gift is not substa ntial, (2) if the client is related to the attorney, or (3 ) if the client has c onsulted w ith indepen dent coun sel. Stein, 373 Md. at 537, 819 A .2d at 375-76. This Rule makes no distinction between testamentary gifts mad e directly to the attor ney an d tho se made t o relative s of the at torney. The majority s reliance on the fact that M r. Lanoch a s daugh ter is an adult is misplaced. Rule 1.8 (c) contains no exception for substantial gifts to adult children of the attor ney. Moreover, the assumption that in order for Mr. Lanocha to benefit from the bequest to his daughter, he wou ld have to e ither share in it or maintain some control over it, is flawed. Certainl y, the Rule anticipated that parents of the lawyer would be adults, such that ad ult status should not presumptively mitigate the attorney s violation of the Rule. The majority also relies upon the hearing court s determination that [t]here is no indicatio n that duress or improper inf luence were brought to bear on Ms. Straw by Respondent or anyone else. Ms. Straw w as not repre sented by inde pendent c ounsel in connection with the will although Mr. Lanocha suggested that she consult counsel. Ms. Straw did not wish to consult an attorney she did not know nor involv e a stranger in her personal affairs. The finding of a violation o f Rule 1.8 (c), however, does not turn on affirmative evidence of duress or improper influence by the attorney. Rathe r, such impr oper influe nce is presumed 1 As the majority notes, by Rules Order dated February 8, 2005, Rule 1.8 (c) was revised, effective July 1, 2005. The revision does not alter the independent counsel requirement of prior Rule 1.8 (c), nor does it distinguish between gifts made to the attorney and those made to the attorney s relatives. -2- merely from the fact that the attorney drafted the testamentary instrument in which either the attorney or the attorney s relative b enefitte d. If the attorney advised his or her client that the client should seek independent counsel, which the client refused, and the attorney was reticent to withdraw from the undertaking because of the relationship with the client, the very concerns that gave rise to the prohibition a re present. T he closene ss of the relatio nship with the client mandates the intervention of independent counsel to insure that the client is not bein g inf luen ced b y the a ttorn ey. Furthermore, this Court has previously observed: [a]lthough some courts have imposed a reprimand for a ttorn eys who draft such instruments, such decisions are typically under the Canons of Professional E thics as opposed to the m ore stringent Rule 1 .8 (c). See Florida Bar v. Miller, 555 So.2d 854 (Fla. 1990); Iowa Supreme Court Bd. of Prof l Ethics and Conduct v. Winkel, 541 N.W.2d 862 (Iow a 1995); In re Prueter, 359 N.W.2d 613 (Minn. 1984); State v. Horan, 21 Wis.2d 66, 123 N.W.2d 488 (19 63). But see In r e Mang old, 148 N.J. 76, 689 A.2d 722 (1997) (reprimanding attorney for violation of New Jersey s Rule 1.8 (c) without discussion of circumstances of violation). Stein, 373 Md. at 543-44, 819 A.2d at 379. The majority relies on two cases from other jurisdictions in support o f its determin ation that a rep rimand is ap propriate: State v. Eisenberg, 138 N.W.2d 235 (Wis. 1965), in which the Wisconsin Supreme Court reprimanded an attorney under the Canons of Professional Ethics for drafting a will that resulted in a substantial inheritance for the attorney s mother; and In re Disciplinary Action Against Boulger, 637 N.W.2d 710 (N.D. 200 1), wherein the North Dakota Supreme C ourt -3- reprimanded the attorney based on the application of the North Dakota Standards for Imposing Lawyer Sanctions, which provided in the case of a conflict of interest caused by negligence that a reprimand is the appropriate sanction. Both are distinguishable from the case at bar based on the provision governing the imposition of the reprimand and provide no support for reprimanding Mr. Lanocha rather than indefinitely suspending him under our preced ent. For the forego ing reason s, I dissent from the majority s determination that a reprimand is the appropriate sanction and would impose an indefinite suspension. Judge Cathell joins in this dissenting opinion. -4-

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