Attorney Grievance v. Whitehead

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Attorney Grievance Commission v. H. Allen Whitehead Misc. Docket AG No. 17, September Term, 2005 Headnote: Rule 16-773 g overns reciprocal discipline cases. An identical sanction normally will not be imposed when a substantially different sanction is w arranted in Maryland. Acco rdingly, upon a review of our cases we must determine whether the attorney s misconduct in another jurisdiction would result in a substantially different sanction if the conduct had occurred in Maryland. When a Maryland attorney takes earned fees from a trust without prior court approval, we typically impose an indefinite suspension. As a result, we will not follow the District of Columb ia Court of Appeals sanction disbarring an attorney based solely on his consent to disbarment admitting to the takin g of such fees without p rior court app roval. IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 17 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. H. ALLEN WHITEHEAD Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Cathell, J. Bell, C.J., Raker and Wilner, JJ. dissent Filed: January 20, 2006 H. Allen Whitehead, respondent, was disbarred by the District of Columbia Court of Appeals, based upon respondent s consent. Bar Counsel, on behalf of the Attorney Grievance Commission, pe titioner, pursuant to Maryland R ule 16-773(b), 1 and based on the misconduct for which respondent was disbarred in the District of Columbia filed a Petition for Disciplinary or Remedial Action against respondent for violation of the Maryland Rules of Professional Conduct (MRPC ).2 The petition alleged that the respondent unethically and unprofessio nally violated MRPC 8.4 and 1.15.3 Petitioner also alleged that respondent 1 Maryland Rule 16-773(b) provides: (b) Petition in Court of Appeals. Upon receiving and verifying information from any source that in another jurisdiction an attorney has been disciplined or placed on inactive status based on incapacity, Bar Counsel may file a Petition for Dis ciplinary or Re medial A ction in the C ourt of A ppeals pursuant to Rule 16-751(a)(2). A certified copy of the disciplinary or remedial order shall be attached to the Petition, and a copy of the Petition and order shall be served on the a ttorney in a ccorda nce w ith Rule 16-75 3. 2 This Court adopted a new version of the Maryland Lawyer s Rules of Professional Condu ct, effective 1 July 2005. Unless otherwise indicated, the MRPC sections ap plicable to this case are identical to the sections they replaced. 3 MPRC 8 .4 entitled Misconduct, provides: It is professional misconduct for a lawyer to: (a) violate or attempt to vio late the Rule s of Profe ssional Co nduct, knowin gly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; [or] (d) engage in conduct that is prejudicial to the administration of justice . . . (continued...) violated Maryland Rules 16-609 and Maryland Code (1989, 2004 Repl. Vol.), §§ 10-306 and 10-307 of the Business Occupations and Prof essions A rticle. On Jun e 16, 2005 , this Court issued a Show Cause O rder pursua nt to Marylan d Rule 16-773(c). 4 Both partie s filed their responses to the Show Cause Order and oral arguments w ere heard on December 5, 2005. Petitioner asked this Court to impose a reciproca l 5 sanction an d disbar resp ondent. 3 (...continued) MPRC 1.15 entitled Safekeeping property, in effect at the time of the misconduct, provided in pertinent p art: (a) A lawyer sh all hold prop erty of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s o wn p rope rty. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 6 00 of the M aryland Rule s. Other pro perty shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property 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 shall promptly notify the client or third person. Except as stated in this Rule or otherwis e permitted by law or by agreement with the client, a law yer shall promptly deliv er to the client or third person any funds or other pro perty that the clien t or third perso n is entitled to receive and, upon request by the client or third person , shall promp tly render a full accou nting re gardin g such proper ty. 4 Maryland Rule 16-773(c) provides: Show cau se order. When a petition and certified copy of a disciplinary or remedial order have been filed, the Court of Appeals shall order that Bar Counsel and the attorney, within 15 days from the date of the order, show cause in writing ba sed upon any of the gro unds set fo rth in section (e ) of this Rule why corresponding discipline or inacti ve statu s shoul d not be impos ed. 5 Althoug h the term reciprocal is in the language of the rule, no exact definition is provided. Reciprocal generally means to interact with the in itiating party, i.e., reciprocal (continued...) -2- Respondent argued that, under Maryland law, suspension was the appropriate sanction for his condu ct. I. FACTS Respondent was admitted as a member of the Bar of this Court on December 1, 1973. He practiced in Maryland and the District of Columbia until 1999, when he moved to New York. Throug hout his lega l career, respo ndent has concentra ted in estate and trusts law. In December of 1998, he became involved in the District of Columbia in the administration of the proceeds from a medical malpractice settlement. Then, in September of 1999, he was appointed as the Conservator of those funds. 6 Upon allegations that respondent had paid legal fees to himself in the amount of $40,200.00 for his services in that case w ithout prior co urt approv al, he was removed from 5 (...continued) trade agreements and the like. It sometimes means to return a favor (though not the exact favor) or to return a harm or disservice (although not the same harm or disservice) to one who has do ne a fa vor or d isservic e to the re ciproca ting par ty. Reciprocal discipline is perhaps not the best phrase to use in a three party situation to desc ribe that two separate entities are to separately add ress a third pa rty s conduct, rath er than to rec iprocate in some fashion with each other. Re active or re sponsive discipline, or some like term , would better describe the practice. 6 A Conservator is defined as a person who is appointed by a court to manage the estate of a protec ted individu al . . . . D.C. Co de § 21-2 011 (200 1); see also Md. Code (1974, 2001 Rep. Vol.), § 14-401(d) of the Estates and Trusts Article ( a person appointed or qualified by a court to act as genera l, limited, or temporary guardian of an individual s property or a person legally authorized to pe rform substantially the same fun ctions ). -3- his post. 7 As a result of his conduct, the District of Columbia Bar Counsel initiated proceedings against respondent. Respondent represented himself during the disciplinary proceedings and, according to him, wa s led to believ e that the infra ction subjec ted him to automatic disbarment in the District of Columbia. Accord ingly, responde nt filed an af fidavit consenting to disbarm ent from th e Bar of th e District of C olumbia. In that affidav it, responde nt admitted to taking the fees prior to court approv al and stated that the fees w ere reimbursed. The District of Columbia Court of Appea ls, on consid eration of th e affidav it, a report and recomm endation from the B oard on Professional Responsibility, and a letter from B ar Coun sel, disbarred r esponde nt by consen t. II. Discussion Recipro cal discipline cases are adjudicated according to Maryland Rule 16-773. Under subsection (b), [u]pon receiving and verifying information from any so urce that in another jurisdiction an attorney has been disciplined . . . , Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals pursuant to R ule 16-751(a) (2). 8 7 In its order removing respondent as Conservator, the probate court mentioned that there was an unresolved issue regarding a self-dealing transaction in the amount of $600,000.00. That court, however, did not issue any findings regardin g inappro priate conduct with regard to those funds. Furthermore, other than the unresolved allegation brought up in the probate court, petitioner has not provided any evidenc e to support a finding of misconduct based upon that alleged misappropriation. The issue of the misappropriation of those funds was not addressed by the District of Columbia Court of Appeals in the disbarment order and as a result it will not be addressed at this time. 8 Interestingly, the rule gives Bar Counse l the discretion to file a petition after it learns of an attorney s misconduct in another state as evidenced by the use of the permissive (continued...) -4- The Court, then, issues a show cause order as required by subsection (c). After the parties respond to the show cause order, the Court may immediately impose corresponding disciplin e, assign the matter to a judge f or a hearing, or e nter any othe r appropria te order. Rule 16-773(f) (emphasis added). This subsection, entitled Actio n by Cou rt of A ppeals , makes it clear that it is with in the Court s discretion as to which sanction should be imposed upon the attorney. The rule states that the Co urt may impose corresponding discipline, not that it shall impos e iden tical disc ipline. In making a determination in reciprocal disciplinary cases, this Court ge nerally gives deference to the factual findings of the original jurisdiction: (g) Conclusive effect of adjudication. Except a s provided in subsections (e) (1) and (e) (2) of this Rule, a final adjudication in a disciplinary or remedial proceeding by anothe r cou rt, ag ency, or tribunal that an attorney has been guilty of professional misconduct or is incapacitated is conclusive evidence of that miscond uct or incap acity in any procee ding und er 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 evidence or otherwise showing cause why no discipline or lesser di scipline should be imp osed. Rule 16-773(g ); see also Attorney Grievance Comm n v. Weiss, ___ Md. ___, ___A.2d ___ (filed Novem ber 22, 200 5); Attorney Grievance Comm n v. Scroggs, 387 Md. 238, 249, 874 A.2d 985, 992 (2005); Attorney G rievance C omm n v. Ayres-F ountain, 379 Md. 44, 56, 838 8 (...continued) language may file. It is argued, however, that upon filing of the petition this Court lacks any discretion in regards to the sanction being imposed under Rule 16-773(e), even though Bar Counsel has discretion not to file a petition in the first instance. -5- A.2d 1238, 1245 (20 03); Attorney Grievance Comm n v. C afferty, 376 Md. 700, 703, 831 A.2d 1 042, 10 45-46 (2003 ). In the case sub judice, the only factual finding by the District of Co lumbia Court of Appea ls is contained in the order of disbarment by consent. The order states that the sanction is based upon respondent s affidavit in which he stated: I was appointed as Con servato r, I took fees (which later were reimbursed) prior to Court approval. In keeping with the general spirit of Rule 16-773(g ) we acce pt the District of Columbia Court of Appeals finding that respondent violated the rules of professional conduct by taking fees without prior court approval. We must, however, determine whether the sanction imposed by the District of Columb ia Court of Appea ls is appropriate under the c ircumstanc es of this cas e, especially since in this C ourt, the attorn ey has not con sented to dis barment. A. Reciprocal Discipline Sanctions Maryland Rule 16-773(e) is titled exceptional circumstances, it provides that [r]eciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and co nvincin g evide nce a ny of fiv e diffe rent con ditions. Rule 16-7 73(e) (em phasis added). 9 It does not define the term reciprocal discipline as to whether it refers to process, 9 Those exceptions are: (1) the procedure w as so lacking in notice or op portunity to be heard as to constitute a d eprivation o f due pro cess; (2) there w as such inf irmity of proof establishing th e miscond uct as to give rise to a clear conviction that the Court, consistent with its duty, cannot (continued...) -6- findings, sanctions, or all three. The use of the language shall not be ordered does not imply that, in the abse nce of an y of the five ex ceptions, the Court shall find that the same sanction must be imposed even if the findings of the foreign court as to misconduct are accepted. To the contrary, this lang uage read s so as to limit the ability of this Co urt to rely solely on the original jurisdiction s findings as to misconduct when any of the enumerated exceptions are met. If Bar Counsel or the sanctioned attorney provides sufficient evidence showing that one or more o f the exception s exist, the Co urt cannot u se its discretion a s to whether to accept the findings as to miscond uct and to im pose a co rrespondin g (but not necessarily the same) sanction, or a differen t sanction all tog ether. If these exception s exist, the court cannot rely exclusively on the findings of the foreign jurisdiction and cannot summarily impose the same discipline. If, however, none of the exceptions exist the court may do so. In further interpreting the meaning of subsection (e), we must evaluate it in the context of the entire Rule 16-773. Subsection (b) provides that Bar Counsel may file a 9 (...continued) accept as f inal the determ ination of m isconduc t; (3) the imposition of corresponding discipline would result in grave injustice; (4) the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State; or (5) the reason for inactive status no longer exists. Rule 16-773(e). -7- petition upon learning that an attorney has been disciplined in another state. Under subsection (d) the Court may suspend the attorney from practice while the proceedin gs in Maryland are taking place. Then, under subsection (f), the Court may immediately impose corresponding discipline, or it may assign the case for a hearing, or it may enter any other approp riate ord er. None of these provisions provide any indication that the findings and the sanction of the foreign court are required to be accep ted. Only subsections (a), (c), and (h) use the m andatory lang uage sh all. Subsec tion (a) require s that the attorn ey shall inform Bar Co unsel if he or she has been disciplined in another state; subsection (c) states that the Co urt shall issu e a show cause ord er; subsection (h) orders tha t when the case is stayed in the original jurisdiction, any proceedings under the rule shall be stayed. Subsection (g), which establishes th at an adjud ication in another state is conclusive evidence of misconduct, does not relate to sanctions. In light of the fact that the sections d ealing with sanctioning the attorney, (b), (d), and (f), use the perm issive langu age ma y, it is reasonable to interpret the use of the language shall not be o rdered . . . if to be read as permissive language also. Were that section to be read as requiring the Court to impose the same or equivalent sanction (if one exists) unless any of the circumstances in subsection (e) were prese nt, it would render at the ve ry least part of subsection (f) meaningless. The rule specific ally provides that th e Court sh all not impo se the sam e sanction if the conduct established . . . warran ts substantially d ifferent discipline in this State. Rule -8- 16-773(e)(4) (emphas is added). The most reasonable way to determine whether the attorney s conduct in another jurisdiction warrants substantially different discipline in this state is to review our own cases and determine which sanction would h ave been adequate had the case origina ted in thi s State. Weiss, __Md. at __, ___ A.2d at ___. This reading of the rule is con sistent with p ractically every prior holding of this Co urt in reciprocal discipline cases. We have repe atedly stated that in these cases, we are prone, but not required, to impose the same sanction the original jurisdiction impos ed. Weiss, ___ Md. at ___, ___A.2d at___.10 Furthermore, in reciprocal discipline ca ses [w]e are required to assess for ourselves the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission. Scroggs, 387 M d. at 254, 87 4 A.2d a t 995 (citing Gittens, 346 Md. at 326, 607 A.2d at 88). We have consistently pronounced: When the Court 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 10 This is a w ell settled princip le of Ma ryland law: Scroggs, 387 Md. at 249, 874 A.2d at 992; Attorney Grievance Comm n v. Steinberg, 385 Md. 696, 704 n.9, 870 A.2d 603, 608 n.9 (2005); Ayres-F ountain, 379 Md. at 56, 838 A.2d at 1245; Cafferty, 376 Md. at 703, 831 A.2d at 1045-46; Attorney Grievance Comm n v. Roberson, 373 Md. 328, 355, 818 A.2d 1059, 1076 (20 03); Attorney Grievance Comm n v. McCoy, 369 Md. 226, 236, 798 A.2d 1132, 1137-38 (2002); Attorney G rievance C omm n v. Ruffin, 369 Md. 238, 253, 798 A.2d 1139, 1148 (20 02); Attorney Grievance C omm n v. Decho witz, 358 Md. 184, 192, 747 A.2d 657, 661 (2000); Attorney Grievance Comm n v. Richardson, 350 Md. 354, 371, 712 A.2d 525, 533 (1998); Attorney G rievance C omm n v. Sabghir , 350 Md. 67, 83, 710 A.2d 926, 934 (1998); Attorney Grievance Comm n v. Gittens, 346 Md. 316, 325, 697 A.2d 83, 88 (1997); Attorney Grievance Comm n v. Willcher, 340 Md. 217 , 221-22, 665 A .2d 1059, 1061 (1 995); Attorney Grievance Comm n v. Saul, 337 Md. 258 , 267, 653 A.2d 4 30, 434 (1995). -9- dispositions for similar misconduct. Weiss, ___ Md. at ___, ___ A.2d at ___ (emphasis added) (quoting Attorney Grievance Comm n v. Parsons, 310 Md. 132, 142, 527 A.2d 325, 330 (1987)). W e do not tak e this position lightly. The Court views it as a duty to assess for itself the propriety of the sanction imposed by the other jurisdiction. See e.g., Steinberg, 385 Md. at 704 n.9, 870 A.2d at 608 n.9; Ayres-F ountain, 379 Md. at 57, 838 A.2d at 1246. It is clea r that this langu age, used in essentially every reciprocal discipline case, would be meaning less were th e Court to apply the same sanction regardless of the state of the law in Maryland with respect to th e proscribed condu ct. Certainly, as acknowledged in Weiss, many (if not m ost) times w e will come to the same conclusion as the original jurisdiction and impose an identical sanction. See e.g., Willcher, 340 M d. at 220, 66 5 A.2d a t 1060; Roberson, 373 Md. at 357, 818 A.2d at 1077; Cafferty, 376 Md. at 728, 831 A.2d at 1059; Attorney Grievance Comm n v. Moore, 301 Md. 1 69, 171 , 482 A .2d 497 , 498 (1 984). When our cases, h oweve r, clearly demon strate that we would apply a different sanction had the conduct occurred or the case originated here we need not follow the original jurisdiction s determination. To always follow the same sanction imposed by the originating jurisdiction might result in two different lines of sanctions for identical conduct; one in reciprocal cases and a different one in cases originating in Maryland . This wo uld lead to a n inconsiste ncy in sanction s that we try to avoid. We have applied this principle in a number of occasions. Most recently in Weiss, we -10- found that disbarment was the appropriate sanction in Maryland for an attorney after he had been suspended in the District of Columbia for embezzling funds from his law firm. We determin ed that when the cond uct involve s stealing or like offenses , our cases cle arly indicate that disbarment is the appropriate sanction absent compelling extenuating circumstances as the root cause o f the m iscond uct. Weiss, ___Md. at ___, ___A.2d at ___; see also Attorney Grievance Comm n v. Goodman, 381 Md. 480, 850 A.2d 1157 (2004); Attorney Grievance Comm n v. Post, 379 Md. 60 , 839 A.2d 718 (2003); Attorney Grievance Comm n v. Spery, 371 Md. 560, 810 A.2d 487 (20 02); Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001). In Decho witz, this Court fo und that a conviction for possession of marijuana with intent to distribute required dis barment in Maryland, even though Dechowitz was only suspended in California where the conduct took place. Decho witz, 358 Md. at 92, 747 A.2d at 661. The District of Colum bia and C alifornia courts imposed a differen t sanction from that wh ich we normally imposed in such cases originating in Maryland. Thus, we declined to impose the same sanction. T his principle is not only followed when the original jurisdiction does not impose a sanction that is as severe as we would impose had the conduct originated here, we also follow it when a lesser sanction is consistent with our experience. In Parsons, two attorneys were suspended for six months in the District of Columb ia for forgin g a clien t s signa ture on a divor ce com plaint. Attorney Grievance Comm n v. Parsons, 310 Md. 132, 527 A.2d 325 (1987). This Court determined that a ninety day -11- suspension was the approp riate sanction in Maryland, due to a similar case decided eight months earlier. Parsons, 310 Md. at 330, 527 A.2d at 142 (citing Attorney Grievance Comm n v. Maxw ell, 307 Md. 600, 516 A.2d 570 (1986) (holding that a ninety day suspension was appropriate for an attorney s false signature on a deed)). Even though attorney discipline is for the primary purpose of protecting the pu blic, the bar an d public policy are served best by determinations consistent with other Maryland sanctions for similar miscond uct. B. Public Policy for Attorney Discipline The primary purpose of attorney discipline is the protection of the public, not the punishment of the a ttorney. Weiss, ___ M d. at __, ___ A.2d at __ _; Scroggs, 387 Md. at 254, 874 A.2 d at 995; Steinberg, 385 M d. at 703, 87 0 A.2d a t 607; Ayres-F ountain, 379 Md. at 58, 838 A.2 d at 1246; Cafferty, 376 M d. at 727, 83 1 A.2d a t 1059; Roberson, 373 M d. at 356, 818 A.2d at 1076; McCoy, 369 M d. at 237, 79 8 A.2d a t 1138. A s Chief Ju dge Bell stated for the Court: We have recognized that the public interest is served wh en this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated. . . . Moreover, such a sanction represents the fulfillment by this Court of its responsibility to insist upon the maintenance of the integrity of the bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. . . . Therefore, the public interest is served when sanctions d esigned to effect genera l and spec ific deterrence are imposed on an attorney who violates the disciplinary rules. . . . Of course, w hat the app ropriate sanction fo r the particular m isconduc t is, in the public interest, generally depends upon the facts and circumstances of the case. . . . The attorney s prior grievance history, as well as facts in mitigation, constitute part of those facts and circumstances. -12- Attorney Grievance Comm n v. Sperling, 380 Md. 180, 191, 844 A.2d 397, 404 (2004) (emphas is added) (quoting Attorney Grievance Comm n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994)). This goal of effecting general and specific deterrence is best achieved by ensuring that every member of the bar clearly understands the standards of conduct to which he or she is expected to adhere and the consequences of failing to meet those standa rds. One of our goals, in m aintaining the se standard s is to ensure th at consistent determinations as to sanctions for similar misconduct are reached in our cases. Whether the case arises in this jurisdiction, or it comes to us as a reciprocal discipline case, does not change this Court s duty to apply consistent treatment, i.e., sanctions as far as is possible. Our position on sanctions in reciprocal cases has to do with ensu ring consiste ncy, which in turn provid es the appro priate deterrent for incompetent, unscrupulous or unethical lawyers. Nor do we abandon well reasoned principles of comity in reaching our decision. As required by Rule 16-773(g), the heaviest weight is given to our sister jurisdictions factual findings. From them we rarely stray. We deviate from their sanctions, however, when the history of our cases warrants a substantially different disposition, such as is the case here. C. Appropriate Sanction in Maryland In the case sub judice we mu st determine what san ction is typically impo sed in Maryland when an attorney takes fees from funds held in trust without prior court approva l. In Attorney Grievance Commission v. Owrutsky, 322 Md. 334, 587 A.2d 511 (1991), an attorney took fees from two estates before they were earned and before approval of the -13- Orphans Court had been sought or obtained. Id. at 341, 587 A.2d at 514. The Co urt determined that his actions in taking the fees without approval and proper accounting came perilously close to misappropriation of funds for which, in the absence of extenuating circumstances, disbarment is ordinarily the appropriate sanction. Id. at 355, 587 A.2d at 521. The attorney, however, was suspended for a period of three years instead, based on the totality of the circumstances, including the fact that he had been a member of the Bar for nearly thirty years w ithout a r ecord o f previo us misc onduc t. Id. In the case at bar, respondent did not take the fees before they were improperly accounted for or earned. Respondent practiced in M aryland for twenty-six years before moving to New York and petitioner did not provide any evidence that respondent was disciplined on any other occasion. From the record it is not a pparent tha t responde nt s condu ct was intentional. Furthermore, he returned the unapproved fees upon learning that taking them without approval was inappropriate. In Attorney Grievance Commission v. Thompson, 376 Md. 500, 519, 830 A.2d 474, 485 (2003), an attorney violated the rules of professional conduct when he failed to pay employee withhold ing taxes an d by improp erly handling th e . . . estate, i.e., improper ly distributing the assets, not paying inheritance taxes before distributing the assets, suing the heirs, distributing less than the heirs were entitled to under the will, and th en, to add in sult to injury, retaining the $16,000.00 commission. (Emphasis added). The attorney had received a check fo r his commission, which he deposited into his personal account without -14- approval from the Orphans Court. We imposed an indefinite suspension with the right to reapply after o ne ye ar. In the case sub judice, the only confirmed allegation against respondent is that he paid himself fees, which he had earned, without prior court appro val. Attorney Grievance Commission v. Seiden, 373 M d. 409, 818 A.2d 11 08 (2003 ), is also illustrative. In that case, an attorney managing an estate for a difficult client took his fee from the proceeds of a settlement without submitting a fee petition to the Orp hans Co urt. We imposed an indefinite suspension with th e right to reapply w ithin thirty d ays. Id. at 425, 818 A.2d at 11 17. In arriving at our decision we took into consideration a number of mitigating factors: it was the attorney s first disciplinary proceeding in twenty-four years of practice, there was no evidence of intentional misappropriation or dishon esty, the attorney was remorseful for his conduct, he was cooperative throughout the proceedings, and the reason he had not filed the fee petition w as due t o his ill he alth. Id.; see also Attorney Grievance Comm n v. Sperling, 380 Md. 180, 844 A.2d 397 (2004) (attorney s negligent management of a trust account resulted in a $42,415.91 shortfall. The Court imposed an indefinite suspension with the right to reapply for admission after ninety days.); Attorney Grievance Comm n v. Culver, 371 Md. 265, 808 A.2d 1251 (2002) (attorney collected $3,500.00 from his escrow account for services rendered to clients who challenged the fees and the attorney failed to have a written contingency agreement. The Court imposed an indefinite suspension with the right to reapply after thirty days). -15- As demonstrated in the cases cited supra, the approp riate sanction for respond ent s miscond uct in Ma ryland is an inde finite suspen sion and n ot disbarm ent. D. Comity Because our decision today affects the weight given to the decisions of other states, we now address the role of c omity 11 in the context of attorney discipline.12 The Supreme 11 B LACK S L AW D ICTIONARY 284 (8th ed. 2004) defines comity as: 1. A practice among political entities (as nations, states, or courts of different jurisdictions), involving esp. mutual recognition of legislative, executive, and judicial acts. Also termed comitas gentium; courtoisie inte rnationale . See FEDERAL COMITY DOCTRINE; JUDICIAL COMITY. Cf. ABSTENTION. Com ity, in the legal sense, is neither a matter of absolute obligation, on the one hand , nor of mere courtesy and good will, upon the other. But it is the recognition which one nation allows within its territory to the legislative, executive, or judicial acts of another nation, having due regard both to international duty and con venience , and to the rights of its own citizens, or of other persons who are under the protection of its laws. Hilton v. Guyot, 159 U.S. 113, 163-64, 16 S.Ct. 139, 143 (1895 ). 12 Every state in the country has a reciprocal discipline rule. Sixteen states adhere to the American Bar Association s Model Rules for Lawyer Disciplinary Enforcement DR 22 (2001 ), which provid e that the court s hall imp ose the identica l disciplin e . . . unless disciplinary counsel or the lawyer demonstrates that any of the enumerated exceptions exist. DR 22; D.C. Bar R. X I § 11 (c); H aw R . 2; K y. R. 3.435; La. R. XIX § 21(D); Mont. Rules for Lawyer Disciplinary Enfo rcement R. 27(D ); Nev. S.Ct. R. 114(4); N.H. S.Ct. R. 37(12); N.D. Rules for Lawyer Discipline R. 4.4(D); Ohio R ules for the Gov t of the Bar V § 11 (F); R.I. S.Ct. Rules art. III, R. 14; S.C. Appellate Ct. R.413 § IV R. 29; S.D. Codified Laws § 16-19-74 (1995); Tenn. S.Ct. R. 9 § 17; Vt. Permanent Rules Governing Establishment and Operation of the Prof l Responsibility Program R. 20; Wis. S.Ct. R. 22.22; Disciplinary Code for the Wyo. State Bar § 20. (continued...) -16- 12 (...continued) Alaska s rule provides that the court will impose identical discipline in the absence of the enumerated circumstances. Alaska Bar R . 27. Washington s rule states that the court imposes identical discipline . . . unless. Wash. Rules for Enforcement of Lawyer Conduct R. 9.2. Five states mand ate their disciplinar y committees to impose the same discipline. Ala. R. Disc. P. 25; Colo. Ct. R. 251.21; N.C. Bar R. .0116; T ex. Gov t Code A nn., tit. 2, subt. G, Appendix A-1, Disc. Proc. R . 9.03 (V ernon 2 004); V a. S.Ct. R . Part Six § IV ¶ 1 3. Four other states mandate their disciplinary boards to recommend identical discipline. Del. R. 18(d); Ga. R. 4-1 02 § 9.4(b ); N.J. R . 1:20-14(a)(4); W.V. R ules of Lawyer D isciplinary Procedure R. 3.20. In Arizona, the commission shall impose or recommend the identical or substantially similar discipline unless . . . Ariz. S.Ct. R. 53(i)(3). Utah requires that equivalent discipline be imposed. Utah Rules of Lawyer Discipline and Disability R. 22(d). While Connecticut provides that the court shall ta ke comm ensurate action unless . . . Conn. Super. Ct. R. 2-39. Arkansas is the only state in w hich, by rule, discip line in another state automatica lly operates as the disciplinary sanction in that state. Procedures of the Ark. S.Ct. Regulating Prof l Conduc t of Attorneys § 14(a). Some states have chosen the permissive language may impose as opposed to shall impos e. Ill. S.Ct. R. 763 ; Iowa R . 35.18; M e. Bar R. 7.3(h); Mass. R. 4:01 § 16; Minn. Rules on Law yers Prof l Re sponsibility R. 12 (d); Miss. Rules of Discipline R. 13; Neb. Disciplinary R. 21; N.M. R. 17-210; N.Y. R. 806.19; Pa. Rules of Disciplinary Enforcement R. 216. Some other states, w hile finding that misconduct in a different state is conclusive evidence of misconduct, must determine under their state law what the sanction should be. Cal. Business and Professions Code § 6049.1 (2003); Idaho Bar Comm n R. 513; Mich. R. 9.104(B); Or. Bar R. 3.5. Three other states only address the conclusive eff ect of the original jurisdiction s factual findings, without mentioning the weigh t of the s anction . Fla. Bar R. 3-4.6; Kan. R. 202; Mo. R. 5.20. The least restrictive state allows their courts to impose the same or different sanction (continued...) -17- Court of Florida has provided a very persuasive explanation of the reciprocal discipline doctrine. In re viewing th at state s policy, the c ourt stated: Here we note that to hold that Florida is not obligated to recognize and enforce the New York judgment of disbarment does not mean that it cannot do so if it elects. This brings us to an interpretation of Rule 11.02(6) and the determination of what effect this court intended to give foreign judgments of disbarment or other discipline when it adopted the rule. In considering the question of the effect to be given disciplinary judgmen ts of a sister state, this court could have adopted the extreme position under which no recognition would be given such a judgment. The rational for rejecting this position is well explained in Selling v. Radford, 1916, 243 U.S. 46, 49, 37 S.Ct. 377, 61 L.Ed. 585. Alternatively, the court could have adopted the opposite extreme under which such a judgment would be given automatic and complete effect by imposing the same discipline in Florida as imposed in a sister state. In our view adoption of either of these extremes would amount to an abdication of this court s responsibility imposed by the Florida constitution. On the one hand, to ignore acts of professional misconduct merely because they occurred outside this state would be to ignore our duty to protect the people of this state from o ne who has been held by another state to be an un fit practitioner. On the o ther hand, to accept the s econd ex treme wo uld constitute an abdication of the responsibility imposed on this court to determine for itself, in proceedings conducted by it, or under its direction, the fitness of those permitted to practi ce in this state. To give a utomatic and unquestioning effect to the judgment of a foreign tribunal would be to fail to exercise the discretion vested in this court by our state constitution. 12 (...continued) without requiring any deference to the original jurisdiction. Okla. Stat. tit. 5, Appendix 1-A R. 7.7 (2001). Maryland s language is different to that used by ev ery other state. U nder Ru le 16773(e) the cou rt shall n ot impo se the sa me disc ipline . . . if . . . . This language of limitation is clearly different than the mandatory language under most state rules and the ABA mode l rules w hich sta te that the court s hall imp ose . . . un less. -18- By adopting Rule 11.02(6) we took a reasonable position between the two extremes above mentioned. By the plainest language the rule makes such a foreign judgment of guilt conclusive proof of such misconduct in a disciplinary proceeding in this state. Proof of guilt of the acts of misconduct adjudicated in the sister state is accomplished by simply proving the entry of the foreign judgment. This eliminates any necessity to retry the bare issue of guilt and makes unnecessary the production in Florida of testimony and evidence on this issue. Th e rule nether prescribes nor proscribes professional behav ior. It relate s solely to th e quest ion of p roof o f guilt. Florida Bar v. Wilkes, 179 So.2d 193, 196-97 (F la. 1965); see also Florida Bar v. M ogil, 763 So.2d 303 (F la. 2000 ). Florida s cu rrent recipro cal discipline rule provides that the other jurisdiction s findings are conclusive proof of misconduct. Fla. Bar R. 3-4.6. T his rule only addresses the weight of the other state s determination that misconduct has occurred and not the sanction to be imposed by the Supreme Court of Florida. Other states also recognize that in reciprocal discipline cases, while accepting another jurisdictions findings of misconduct, the ultimate responsibility for determining what sanction should be imposed rests on the state in which the attorney is facing reciproca l disciplin e. Idaho State Bar v. Everard, ___P.3d___ 2005 WL 2319166 (Idaho filed Sept 23, 2005); In re Witte, 99 Ill.2d 301, 310, 458 N.E.2d 484, 488, 76 Ill.Dec. 84, 88 (1983) ( [W]e regard a sister State s sanction as persuasive, but not binding, when we seek the appropriate pen alty to impose in Illinois. ); In re Rickabaugh, 661 N.W.2d 130, 133 (Iowa 2003) ( Determining a revocation in Nebraska is the same as a revocation in Iowa does not end our inquiry. We still must address Rickabaugh s claim that the disbarment imposed in Nebraska is more severe than the sanction he would have received in Iowa for the same -19- conduct. ); In re Kersey, 444 Mass. 65, 70, 825 N.E.2d 994, 998 (2005) ( On a matter of reciprocal discipline, we may impose whatever level of discipline is warranted by the facts even if that discipline exceeds, e quals, or falls s hort of the d iscipline imposed in another jurisdiction. ). The Suprem e Court of Co nnecticut has interpreted its reciprocal discipline rule, stating that co mmens urate action under [th e reciprocal discipline rule] does not mean identical action. The trial court had inherent judicial power, derived from judicial responsibility for the administration of justice, to exercise sound discretion to determine what sanction to impose in light of the entire reco rd before it. In re Weissman, 203 Conn. 380, 384, 524 A.2d 1141, 1143 (1987) (a reciprocal discipline case from the District Court for the District of C onnecticu t). This comm ensurate la nguage is very similar to the language of Maryland R ule 16-77 3(f), which states that the C ourt may im mediately impose corresponding discipline. As explained supra, the use of the word corresponding does not necessarily mean identical. One of th e meanin gs of co rrespond is to be equ ivalent in functio n, another is having an obvious similarity, although not agreein g in every de tail. 13 The Supreme Court of Missouri has m ade it clear that the court makes its own independent judgment as to the fitness of the members of its bar. In re Storment, 873 S.W.2d 227, 230 (Mo. 1994) (en banc) (finding that disbarment was the appropriate sanction for an attorney who had been suspended in Illinois). The Supreme Court of Nebraska has recognize d that 13 RANDOM HOUSE DICTIONARY OF THE ENGLISH LANGUAGE 328 (Unabridged ed. 1966). -20- [t]his court has, on occasion, sanctioned attorneys who had already been disciplined by the state in whic h the eth ical viola tion occ urred. S ee, State ex rel. NSBA v. Gallner, 263 Neb. 135, 638 N.W.2d 819 (2002) (following imposition of 6-month suspension in Iowa, formal charges in Nebraska based on same conduct resulted in 1-year suspe nsion); State ex rel. NSBA v. Frederiksen, 262 Neb. 562, 635 N.W.2d 427 (2001) (following issuance of public reprimand in Iowa, formal charges in Nebraska based on same conduct resulted in 3-year suspension). Such does not offend th e principles o f full faith and credit. Kentucky Bar Ass'n v. Signer, 533 S.W.2d 534 (K y.1976), succin ctly analyze s such n otion. State ex rel. Counsel for Discipline of the Nebraska Supreme Court v. Rokahr, 267 Neb. 436 444, 675 N.W .2d 117 , 124 (2004). That court has also stated that [t]he propriety of a sanction must be considered with reference to the sanctions imposed by this court in prior cases presenting similar circumstances. State ex rel. NSBA v. Gallner, 263 Neb. 135, 139, 638 N.W.2d 819, 823 (2002); see also In re Lichtenberg, 117 N.M. 325, 327, 871 P.2d 981, 983 (1994) (in N ew M exico, the C ourt review s its prior cases in determinin g the appro priate sanction). In New York, an appellate court refused to impose reciprocal discipline, suspending for one year an attorney who had been disbarred in Maryland for unauthorized practice of law . In re Alsafty , 5 A.D.3d 976 , 774 N.Y.2d 5 83 (N.Y. Ap p. Div. 2004). Oregon takes the leas t deferential a pproach in reciproc al discipline c ases. In the Supreme Court of Oregon s view: In determining an approp riate sanction, . . . this court focuses on the a ccused s misco nduct u nder th e Oreg on disc iplinary ru les. We do so because our choice of a sanction vindicates the judicial authority of this jurisdiction, not of the one in which the earlier discipline occurred. In re Coggins, 338 Or. 480, 485, 111 P.3d 1119, 1121 (2005) (en banc). -21- In at least one jurisdiction where the rule states th at the court shall impose identical sanctions, courts have still found that substantially different sanctions are warranted based upon their own treatment of the type of offenses charged. In Colorado an attorney was disbarred although the original jurisdiction, Arizona, had only suspend ed him fo r six months. People v. Apker, 67 P.3d 23, 25 (Colo. 2003). The Arizona court had found that the attorney had stolen c lient fun ds. Id. He was disbarred in Colorado because [t]he knowing conversion of clien t prope rty almost i nvariab ly results in d isbarm ent und er Colo rado law . Id. As a result, the disciplinary board determined that a substantially different sanction was necessary from that imp osed in Arizon a. Id. See also People v. Costa, 56 P.3d 130 (Colo. 2002). We are mindful o f the defe rence to be granted oth er states in their decisions regarding similar conduct. We give that deference where it is due: to the other jurisdiction s factual findings. In terms of sanction s in reciprocal cases, we agree with those jurisdictions that reserve the right to impose a sanction which is consistent with others imposed in cases originating in their ju risdiction s. This policy is so und in that it ensures that every member of the Marylan d Bar is he ld to the same standards reg ardless of where their misconduct takes place. III. Conclusion Maryland Rule 16-773 governs discipline cases in which a foreign state has already acted to discipline the attorney for the same misconduct. Under that rule this Court may also -22- impose a sanction upon a Maryland attorney who has already been disciplined in another jurisdiction for the same misconduct. This rule, however, does not mandate that the same sanction must be imposed. In these types of case, this Court gives great deference to the other jurisdiction s factual findings. In addition, we are duty-bound to examine the other jurisdiction s sanction and determ ine whether that sanction is consistent with our disciplinary preceden t. Where Maryland attorneys are given a substantially different sanction for similar conduct in cases originating in this State, to that imposed in the originating state, we may not follow the original jurisdiction s finding as to the sanction imposed. This result supports our policy of provid ing consiste ncy in sanction ing for sim ilar conduct for all members of the Maryland Bar. It furthers our goal to protect the public by ensuring that every Maryland attorney is held to consistent sta ndards of conduct. Indefinite suspensio n with the right to rea pply after eighte en month s is the appro priate sanction in this State. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL CO STS AS TAXED, FOR WHICH SUM JUDGMENT IS ENTERED I N F A V O R OF THE ATTORNEY GRIEVANCE C O M M I S S IO N O F M AR Y L A N D AGAINST H. ALLEN WHITEHEAD. -23- IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 17 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. H. ALLEN WHITEHEAD Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissenting Opinion by Bell, C. J., which Raker and Wilner, JJ. join. Filed: January 20, 2006 The majority s reasoning for refusing to impose reciprocal discipline in this case is threefold: the respondent was disbarred in the District of Columbia for one act of misappropriation, not two, and thus only that first act will be con sidered by this C ourt; the imposition of reciprocal discipline unde r Maryland Rule 16-7731 is pu rely discre tionary; 1 Maryland Ru le 16 -773 prov ides, in its entir ety: (a) Duty of Attorney. An attorne y who in an other jurisdictio n (1) is disbarred, suspended, or o therwise disciplined, (2) resigns from the bar, while disciplinary or remedial action is threatened or pending in that juris dicti on, ,o r (3) i s placed o n ina ctive statu s bas ed on inc apac ity shall inform Bar Counsel promptly of the discipline, resignation, or inactive status. (b) Petition in Court of Appeals. Upon receiving and verifying information from any source that in another jurisdiction an attorney has been disciplined or placed o n inactive statu s based on incapacity, Ba r Counse l may file a Petition for D isciplinary or Re medial A ction in the C ourt of A ppeals pursuant to Rule 16-541(a)(2). A certified copy of the disciplinary or remedial order should be attached to the Petition, and a copy of the Petition and order shall be served on the attorney in accordance with Rule 16-753. (c) Show cause order. When a petition and certified copy of a disciplinary or remedial order have been filed, the Court of Appeals shall order that Bar Counsel and the attorney, within 15 days from the date of the order, 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 imposed. (d) Temporary suspension of attorney. When the petition and disciplinary or remedia l order dem onstrate that a n attorney has b een disbarr ed or is currently suspended from practice by final order of a court in another jurisdiction, the Court of Appeals may enter an order, effective immediately, suspending the attorney from the practice of law, pending further order of Court. The provisions of Rule 16-760 apply to an order suspending an attorney under this section. (e) Exceptional circumstances. Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that: (1) the pro cedure w as so lackin g in notice o r opportun ity to be heard as to constitute a deprivation of due process; (2) there was such infirmity of proof establishing the (continued...) and the respondent h as demonstrated ex tenuating circumstances u nder Rule 16-77 3(e)(4), which warrant a sanction less than disbarment. All of these conclusions are incorrect, and the Court s analysis is based upon a faulty interpretation of Rule 16-773. (...continued) miscond uct as to give rise to a clear co nviction tha t the Court, consistent with its duty, cannot accept as final the determina tion of misc onduct; (3) the imp osition of co rrespondin g discipline w ould result in grave injustice; (4) the con duct establish ed does n ot constitute m isconduc t in this State or it w arrants subs tantially different d iscipline in this State; or (5) the reason for inactive status no longer exists. (f) Action by C ourt of A ppeals. Upon consideration of the petition and any answer to the order to show case, the Court of Appeals may immedia tely impos e corres pondin g discip line or in active st atus, may enter an order designating a judge pursuant to Rule 16-752 to hold a hearing in accordance with Rule 16-75 7, or may enter any other appropriate order. The provisions of this Rule 16-760 apply to an order under this section that disbars or suspends an attorney or that places the attorney on inactive status. (g) Conclusive Effect of Adjudication. Except as provided in subsections (e)(1) and (e)(2) of this Rule, a final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional conduct or is incapacitated is conclusive evidence of that misc onduct or incapacity in an y 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 evidence or otherwise showing cause why no discipline or lesser discipline should be imposed. (h) Effect of stay in other jurisdiction. If the other jurisdiction has stayed 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 effe ctive. (emphasis added ). -2- I. The District of Columbia Court of Appeals disbarred H. Allen Whitehead, the responde nt, pursuant to Rule XI, § 12 of the Rules Governing the Admission to the Bar of the District of Columbia,2 which provides for disbarment by consent. The ground on which the respondent w as disbarred was stated in the re sponden t s affidavit accompanying the petition for disbarment he admitted: In the M atter of Re ginald Section 12. Disbarment by Consent (a) Required affidavit. An attorney who is the subject of an investigation or a pending proceeding based on allegations of misconduct may consent to disbarment, but only by delivering to Bar Counsel an affidavit declaring the attorney's consent to disbarment and stating: (1) That the consent is freely and voluntarily rendered, that the attorney is not being subjected to coercion or duress, and that the attorney is fully aware of the implication o f consen ting to disbarm ent; (2) That the attorney is aware that there is currently pending an investigation into, or a proceeding involving, allegations of misconduct, the nature of which shall be specifically set fo rth in the aff idavit; (3) That the attorney acknowledges that the material facts upon which the allegations of misconduct are predicated are true; and (4) That th e attorney subm its the consen t because th e attorney kno ws that if disciplinary proceedings based on the alleged misconduct were brought, the attorney could not successfully defend against them. (b) Action by the Board and the Court. Upon receipt of the required affidavit, Bar Counse l shall file it and a ny related pap ers with the Board fo r its review an d approv al. Upon such approval, the Board shall promptly file it with the Court. The Court thereafter may enter an order disba rring the attorn ey on conse nt. (c) Access to records of disbarment by consent. The order disbarring an attorney on consent shall be a matter of public record. However, the affidavit required under subsection (a) of this sec tion shall not b e publicly disclo sed or ma de available for use in any other proceeding except by order of the Court or upon written consent of the attorney. 2 -3- Grayson, Intvp. No . 195-94, wherein I was appointed as Conservator, I took fees (which were later reimbursed) prior to Court approval. To be sure, in his affidavit, the respondent made no mention of, and certainly did not admit to, misappropriating $600,000 of estate funds, which, B ar Coun sel alleged, he used for a real estate investment; instead, as we have se en, he only admitted taking legal fee s without Court consent. It is, thus, arguable, as the majority concludes, that it was only on that basis that the respondent was disbarred.3 3 It is incorrect to state that neither of the District of Columbia courts neither the Superior Court nor the Court of Appeals had determined that the respondent had misappropriated the $600,000, in addition to taking legal fees. In its December 3, 2003 Order removing the respondent as conservator for the Reginald Grayson, Jr. estate, the Superior Court stated: Th e Co urt heard the repre sentation s and adm issio ns fr om M icha el Grady, made on beh alf of the Conserv ator, H. Allen Wh itehead. The Con servator, by and through his attorney, admitted on the record that he had violated D.C. Code § 21-2060, D.C. Code 21-2068, SCR-PD 5(c) and SCR-PD 308. Specifically, the Conservator admitted that he paid legal fees of $40,200.00 to himself without prior authorization and he entered into a self-dealing mortgage investment transaction, $600,000.00 of the adult ward s assets for the purcha se of prop erty located in N ew Yo rk City for him self and A ric Johnson such an investment by the Conservator represents a clear conflict of interest. Notwithstanding the Conservator s on the record admissions, Conservator seeks to tender his resignation to the Court, in lieu of removal from his post. (emph asis added). Furthe r, in the attorney discipline case, Bar Cou nsel for the D istrict of Colu mbia specifically averred that the respondent had misappropriated funds on two occasions, began an investigation on both counts, and sought consent from respondent on both bases. Therefore, while it is true that the District of Columbia Court of Appeals did not specifically disbar the respondent based on his misappropriation of $600,000, because the responde nt did not sp ecifically admit su ch behav ior in his affid avit, the record clearly demonstrates that the respondent did admit to two incidents of misappropriation. -4- That the respondent s admission in the District of Columbia attorney discipline case was limited to the fee payment, and did not include the self-dea ling alleged, is, in truth, immaterial to the proper a nalysis under R ule 16-77 3. Applying th e proper an alysis demonstrates that disbarment is the only appropriate sanction. Moreover, in this Court the respondent s status is not simply that of one who has consented to disbarment; rather, on the basis of that consent4 from the admission it contained he has been found by the hearing court to have violated Rule 8.4(a), (b), (c) and (d). Either subsection (b) or (c) constitutes a finding of intentional misappropriation of estate funds. That finding, in turn, is supported by the respondent s admission that he took fees from the estate, as to whic h he w as cons ervator , withou t court p ermissio n. In Re: Regin ald Gra yson, Jr., No. 195-94, Superior Court of the District of Columb ia. In other cases, in which the hearing court has found a violation of Rule 8.4(b) or (c), where Noting that this Court generally gives deference to the factual findings of the original jurisdicti on, Attorney Griev. Comm n v. Whitehead, ___ Md. ___, ___, ___ A. 2d ___, ___ (2005) [slip op. at 5], the majority accepted the District of Columbia Court of Appe als dete rminatio n that the respon dent vio lated the rules of profes sional c onduc t. Id . at ___, ___ A. 2d at ___ [slip op. at 6]. The only conceivable basis for that determination was the respondent s affidavit, in which his consent to disbarment is found. I note th at this C ourt s ca ses are c lear, pur suant to Rule 1 6-773 (g), see infra, note 4, that we d o not relitigate f actual matte rs or a final ad judication b y another app ropriate tribuna l in a disc iplinary pr oceed ing, see Attorney Griev. Com m n v. Sabghir, 350 Md. 67, 68, 710 A.2d 92 6, 926 (19 98); Attorney Griev. Comm'n v. Gittens, 346 Md. 316, 325, 697 A.2 d 83, 88 (1 997); Attorney Griev. Comm'n v. Willcher, 340 Md. 217, 221-222, 665 A.2d 10 59, 1061 (1995); Attorney Griev. Comm'n v. Sparrow, 314 Md. 421, 550 A.2d 1150 (1989); thus, we accept the factual findings and the adjudication as conclusive eviden ce of [ the] mis condu ct fou nd in th ose pro ceedin gs. 4 -5- there has been an inappropriate handling of monies or in which a trust account has been out of balance, we have refused to allow a respondent to be heard to say, and certainly not to succeed in the argum ent, that there w as no misa ppropriation found o r that it was not intentional. Attorney Griev. Comm n v. Cafferty, 376 Md. 700, 723, 831 A.2d 1042, 1056-7 (2002); Attorney Griev. Com m n v. Sabghir, 350 Md. 67, 68, 710 A.2d 926, 926 (1998); Attorney Griev. Comm'n v. Gittens, 346 Md. 316 , 325, 697 A.2d 8 3, 88 (1997); Attorney Griev. Comm'n v. Willcher, 340 Md. 217, 221-222, 665 A.2d 1059, 1061 (1995); Attorney Griev. Comm'n v. Sparrow, 314 Md. 421, 425, 550 A.2d 1150, 1152 (1989 ). There is, consequently, another basis for imposing the sanction the District of Columb ia court imposed. That basis, moreover, is consistent with the majority s desire and apparent determination, to attain, and to maintain, internal consistency in attorney discipline cases. As we have so often stated, disbarment is the inexorable result of a finding of misa pprop riation, a bsent c ompe lling ext enuatin g circum stances . Attorney Griev. Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991); Attorney Griev. Comm'n v. Spery, 371 M d. 560, 568 , 810 A.2d 487, 491 -92 (2002 ); Attorney Griev. Comm 'n v. Sullivan, 369 Md. 650, 655 -56, 801 A .2d 1077 , 1080 (20 02); Attorney Griev. Comm'n v. Vanderlinde, 364 Md. 376, 410, 773 A.2d 463, 483 (2001). That the respondent did not appreciate, or was not told, that disbarment need not be the sanction for the premature taking of a fee is neither a compelling nor extenuating circumstance -6- II. A definition of reciprocal is corresponding; equivalent. (Blacks Law Dictionary, 7th Edition, 2000). Corresp onding m eans to be analogou s or similar; to agree in amount, position, etc.; to be in harmony or agreement. (Oxford Concise Diction ary, 9th edition, 19 95). As su ch, recipro cal is an ap propriate w ord to use in describing our practice under R ule 16-77 3, at least it was, until this Cou rt s decision in Attorney Griev. Comm n v. Weiss, __ Md. __, __, __ A.2d __ (2005). The purpose of Rule 16-773 is to ensure that two jurisdictions with the same interest in regulating the legal profession and, in the proce ss and nec essarily, protecting the public, or dinarily will impose the same (correspon ding, equivalent) discipline upo n a violating attorney for the same misconduct. One explanation for the use of the word corresponding is that there are some instances in which a particular form of sanction which exists in one jurisdiction has no exact e quivalent in another juris diction; therefore, the reciprocating jurisdiction must replicate the sanction as closely as possible within the framework which exists in its state. See, e.g ., Attorney Griev. Comm n v. Ruffin, 369 Md. 238, 798 A.2d 1139 (2 002). (concluding that, because the original sanction ordered in Arizona , a seven m onth suspension, permitted reinstatement only by order of the court, it thus was most like an indefinite suspension in M aryland, the Court ordered an in definite suspension). A. -7- Rule 16-773 addresses reciprocal discipline and inactive status. Subsection (e) of that Rule requires that, if exceptional circumstances are shown by clear and convincing evidence, reciprocal discipline shall not be imposed (orde red). 5 To be sure, the Rule does not state explicitly that reciprocal discipline must be ordered unless exceptional circumstances are proven. Nevertheless, the converse necessarily implies that reciprocal discipline ordinarily may no t, or should not, be avoided when there are no exception al circum stances show n by eithe r Bar C ounse l or the re spond ent. The majority observes: Interestingly, the ru le gives Ba r Counse l the discretion to file a petition after it learns of an attorney s misconduct in another state as evidenced by the use of the permissive language may file. It is argued, however, that upon filing of the petition this Court lacks any discretion in regards to the sanction being imposed under Rule 16-773(e), even though Bar Counsel has discretion not to file a petition in the fir st instan ce. Attorney Griev. Comm n v. Whitehead, ___ Md. ___, __ , ___ A.2d ___ , ___ (2005) [slip op. at 4-5, n. 8]. I am not impressed. First, it is not at all unheard of that the prosecuting authority will be given broader discretion to initiate proceedings than the sanctio ning au thority is giv en to sa nction. See e.g. Maryland Code (2002) §14-101 of the Criminal L aw Artic le, subsection (f) of wh ich requires th e state, if it intends to prosecu te the defen dant as a su bsequen t offende r under the s ection, to com ply with the ap plicable Maryland Rules. Maryland Rule 4-245 (b) prescribes the notice required when additional penalties are permitted, but are not mandated. The prosecutor may, but need not, give the notice, but once given, if the pre-requite convictions are proven , the court must impose the a dditiona l pen alty. See e.g. State v. Green, 367 M d. 61, 785 A .2d 1275 (2001); Jones v. State, 336 M d. 255, 647 A.2d 12 04 (1994 ); State v. Montgom ery, 334 Md. 20, 637 A.2d 1193 (1 994). Second , in any event, the argumen t is not that the C ourt has no discretion in regards to th e sanction in a reciproca l discipline cas e, it is that it has limited discretion, in accord ance w ith a Ru le that it kn owing ly, intention ally, and v oluntar ily promu lgated. 5 -8- Our analysis in a reciprocal discipline case has its foundation in two co-existing duties to protect the p ublic, an underlying purpose of our san ctioning sch eme, and to analyze the facts of each case and several policy goals to ensure consistency of sanction and to demonstrate comity towards our sister jurisdictions. First, this Cou rt is re quired to dete rmin e the prop riety of a sanction issued by another jurisdiction by looking to the facts and circumstances particular to each case. Attorney Griev. Comm n v. Sparrow, 314 Md. 421, 426 , 550 A.2d 115 0, 1152 (1986); Attorney Griev. Comm n v. Caf ferty, 376 Md. 70 0, 727, 831 A.2d 1042, 1058 (20 03); Attorney Griev. Co mm n v . Ruffin, 369 Md. 238, 253 , 798 A.2d 113 9, 1148 (2002); Attorney Griev. Comm n v. Dechowitz, 358 Md. 184, 192-3, 747 A.2d 657, 661 (2000); Attorney Griev. Comm n v. Scroggs, 387 Md. 238, 254, 874 A.2d 98 5, 995 (2005); Attorney Grie v. Co mm n v. McCoy, 369 Md. 226, 236, 798 A.2d 1132, 1138 (2002); Attorney Griev. Comm n v. Gittens, 346 Md. 316, 326 , 697 A.2d 83, 88 (19 97); Attorney Griev. Comm n v. Willcher, 340 M d. 217, 222 , 665 A.2d 1059, 10 61 (1995 ); Attorney Griev. Comm n v. Parsons, 310 Md. 132, 142, 527 A.2d 32 5, 330 (19 87); Attorney Griev. Comm n v. Saul, 337 Md. 258, 267, 653 A.2d 430, 434 (1995); Attorney Griev. Com m n v. Sabghir, 350 Md. 67, 83-4, 710 A.2d 926, 934 (1997); Attorney Griev. Comm n v. Richardson, 350 M d. 354, 371 , 712 A.2d 524, 533 (1998); Atto rney Griev. Comm n v. Roberson, 373 M d. 328, 3 55-6, 818 A.2d 1059, 1076 (2003). Case law demonstrates that there are several im portant considerations which affect our decision to impose reciprocal -9- discipline: the location of the attorney s practice, where the misconduct actually occurred, and the seriousness with which the oth er jurisdiction tre ats the misco nduct. 6 See Attorney Griev. Comm n v. Scroggs, 387 M d. 238, 874 A.2d 98 5 (2005); Attorney Griev. Com m n v. Steinberg, 385 M d. 696, 870 A.2d 60 3 (2005); Attorney Griev. Com m n v. AyersFountain, 379 Md . 44, 838 A .2d 1238 (2003); Attorney Griev. Comm n v. Roberson, 373 Md. 328, 818 A.2d 10 59 (2003 ); Attorney Griev. Comm n v. Ruffin, 369 Md. 238, 798 A.2d 1139 (20 02); Attorney Griev. Comm n v. Gittens, 346 M d. 316, 697 A.2d 83 (1997). Cf. Attorney Griev. Comm n v. Dechowitz, 358 Md. 184, 747 A.2d 65 7 (2000). See also Attorney Griev. Comm n v. Weiss, __ Md. at ___, ___ A.2d at ___ (Bell, C .J. dissenting) [slip op. at 4]. T hus, whe n an attorne y primarily practices in another jurisdiction shar ing o ur ge nera l policy goals, commits misconduct in that jurisdiction, and is disciplined by that jurisdiction, which also has tak en the matter seriously, we are prone to, and ge nerally w ill, impos e recipr ocal dis cipline. See Attorney Griev. Comm n v. Scroggs, 387 M d. 238, 874 A.2d 98 5 (2005); Attorney Griev. Com m n v. Steinberg, 385 Md. 696, 870 A.2d 60 3 (2005); Attorney Griev. Comm n v. Ayers-Fountain, 379 M d. 44, Critical to attorney discipline, and essential to according deference to another jurisdiction s sanction decision on a reciprocal basis, is the policy of protecting the public. T hat pur pose o f the atto rney disci pline pr ocess is well es tablishe d. Attorney Griev. Comm n v. Scroggs, 387 M d. 238, 254 , 874 A.2d 985, 995 (2005); Attorney Griev. Comm n v. Ayres-Fountain, 379 Md. 44 , 58, 838 A.2d 12 38, 1246 (2003 ); Atto rney G riev. Com m n v. Ca ffer ty, 376 Md. 70 0, 727-8, 831 A .2d 1042, 1059 (2 002); Attorney Griev. Comm n v. Roberson, 373 Md. 32 8, 356, 818 A.2d 1059, 1076 (20 03); Atto rney G riev. Com m n v. M cCo y, 369 Md. 22 6, 237, 798 A.2d 1132, 1138 (20 02); Attorney Griev. Comm n v. Sperling, 380 Md. 18 0, 191, 844 A.2d 397, 404 (2004 ); Attorney Griev. Comm n v. Myers, 333 M d. 440, 4 47, 635 A.2d 1 315, 13 18 (19 94). 6 -10- 838 A.2d 12 38 (2003 ); Attorn ey Griev . Com m n v. Roberson, 373 Md. 328, 818 A.2d 1059 (2003); Attorney Griev. Comm n v. Ruffin, 369 Md. 23 8, 798 A.2d 11 39 (2002); Attorney Griev. Comm n v. Gittens, 346 Md. 316, 697 A.2d 83 (19 97). Cf . Attorney Griev. Comm n v. Dechowitz, 358 M d. 184, 7 47 A.2 d 657 ( 2000) . See also Attorney Griev. Comm n v. Weiss, __ Md. at ___, ___ A.2 d at ___ (Bell, C.J. dissenting) [slip op. at 4]; Sabghir, 350 M d. at 84, 710 A.2d at 93 4; Richardson, 350 Md. at 371, 712 A.2d at 533; McCoy, 369 Md. at 236, 798 A.2d at 11 38; Caf ferty, 376 Md. at 727, 831 A.2d at 1058 (stating that w hen a sister sta te s purpos e in disciplinin g attorneys is the same as Maryland s, we will de fer). Conv ersely, the presen ce of exc eptional circumstances necessitates a non-reciprocal sanction.7 7 The majority argues that our duty to analyze each case would be rendered meaningless were w e generally requ ired to impo se reciproca l discipline. Y et, it is precisely this duty which would permit this Court to determine the existence of extenuating circumstances, many of which concern constitutional and fairness issues, and which ensures that the proces s is a con sidered one, an d is not s imply aut omatic . The majority also contends tha t were Rule 16-7 73(e) generally to require recipro cal disci pline, R ule 16- 773(f ) wou ld be ren dered m eaning less. Whitehead, __ Md. at __, __ A.2d at __ [slip op. at 8]. This is not so. Subsection (f) provides that, after the petition and answer have been filed, several things may happen: the Court can immediately impose corresponding discipline, the Court can designate a judge to hear the matter in acc ordance w ith Rule 16 -757, or the C ourt may ente r any other ap propriate order. The p urpose of this su bsectio n is to giv e the C ourt a ch oice as to how to procee d. Whether reciprocal discipline is required by Rule16-773(e) in the majority of circumstances, or not, does not change the meaning of subsection (f). That an order under Rule 16-7 73(e) mu st be appro priate furth er ensures th at subsection s (f) and (e) a re in harm ony. -11- The majority s essential approach is based on its belief that, although an attorney primarily practices in, an d is disciplined by, a jurisdiction w hich shares this Court s primary disciplinary purpose, such facts are outweighed by our desire for internal consistency of sanction by our insistenc e that the san ctions impo sed pursu ant to petitions filed in Maryland in the first instance and those imposed pursuant to reciprocal process are the s ame. See Parsons, 310 Md. at 330, 527 A.2d at 142; Sparrow, 314 Md. at 426, 550 A.2 d at 1152; Willcher, 340 Md. at 222, 665 A.2d at 1061; Mc Coy, 369 md. at 237, 798 A.2 d at 1138; Ruffin, 369 Md. at 253, 798 A.2d at 1148; Caf ferty, 376 Md. 727, 831 A.2d at 1058 ; Ayres-Fountain, 379 M d. at 57, 838 A.2d at 12 46; Scroggs, 387 Md. at 254, 874 A.2d at 995. Our cases have demonstrated that, when all other facts and considerations indicate that reciprocity is appropriate, internal consistency, while desirable, as a theoretical matter, is not an end in and of itself and, thus, should not alter the outcome . Ayres-Fountain, 379 Md. 44, 56-58 838 A.2d 1238, 1245-1247 (2003) (ordering reciprocal discipline of indefinite suspension though, ordinarily, such misconduct would w arrant disbar ment in this sta te); Saul, 337 M d. 258, 6 53 A.2d 430 (1995) (reciprocatin g alth ough san ction was not c onsi stent with M aryland practice, due to mitigating circumstances considered by the original court); Sparrow, 314 Md. 421, 550 A.2d 1150 (1988) (reciprocating, although sanction was not consistent with Maryland practice, due to mitigating circumstances presented to, and considered by, the original court). See also Gittens, 346 Md. 31 6, 697 A .2d 83 (19 97); Richardson, 350 Md. 354, 712 -12- A.2d 524 (1998) (issue of consistency not material to the decision to rec iprocate); McCoy, 369 M d. 226, 798 A.2d 11 32 (2002 ) (same); Ruffin, 369 Md. 238, 798 A.2d 1139 ( 2002) (same) . The majority cites three cases in which we refused to impose reciprocal sanctions. In Weiss, the most recent case, I dissented for the same reas ons that I am dissenting in this case. In that dissent, I addressed both Dechowitz, 358 Md. 184, 747 A.2d 657 (2000), and Parsons, 310 M d. 132, 5 27 A.2d 325 (1987). As I said, only one of the cases, Dechowitz, may actu ally suppo rt the ma jority. Weiss, ___ Md. at ___ , ___ A.2d at ___ [slip op. at 15] (B ell, C.J. dissentin g). In that case, we did impose a more severe sanction in a recipr ocal dis cipline c ase, disb armen t, rather th an a pe riod of suspen sion. Dechowitz, 358 Md. at 193, 747 A.2d at 661. Thus, it is an exception to Rule 16-773, perhaps falling under Rule 1 6-773 (e)(4). It is significant, how ever, that the a ttorney in that case was still on probation when this Court considered the disciplinary petition. Id. at 191, 747 A.2d at 661. Parsons is an unusu al case. The re, following a precede nt set five m onths earlier in a non-recipr ocal attorney dis cipline case w ith facts iden tical to those of Parsons, we suspended Parsons for ninety days, rather than six months, which suspension was n ot to run concurrently with the suspension imposed by the District of Columbia Court of Appeals. Id. 310 Md. at 1 43, 527 A.2d a t 330. It is significant that the District s suspension had alread y ended; there fore, it is likel y that we would have deferred, by -13- running our suspension concurrently, had that opportunity been available. Neither of these cases supports the majority s claim that internal consistency overrides the other policy concerns, or controls, our Rule 16-773 analysis. In fact, the majority s approach to reciproca l discipline a haphaz ard analysis whereby the Court may impose whatever discipline it sees fit, without regard to that issued by our sister states compromises the very purpose reciprocal discipline professes to serve. By refu sing to main tain and ad here to a stan dard by wh ich reciproc al discipline is imposed, a Maryland attorney being disciplined under Rule 16-773 can not anticipate what kind of sanction he o r she will receive, and on w hat basis. This does not pro mote consistency amongst the reciprocal States and cases; rather, it ensures that there will be significant inconsistency. Indeed, the majority s approach encourages inconsistency among the recip rocal sta tes. The majority m ay believe that it is, and, it in fact may be, creating internal consistency, that is, making the sanction imposed in Maryland reciprocal and non-recipr ocal cases more consistent. But, because, at the same time it fosters and even exacerbates the inconsistency, in reciprocal discipline cases, between the sanctions imposed by this Court an d the recipro cal states, what, I ask, is the p urpose, then , of Rule 16-773? The majority s single-minded focus upon internal consistency, thus, also has a secondary consequence, that of diminishing the importance of another of our policy goals com ity. The majority views comity as an excuse to override all other -14- concern s nam ely, those of consistency and protection of the public . Attorney Griev. Comm n v. Whitehead, __ Md . __, __ A.2 d __ (200 5) [slip op. at 1 6-22]. Cer tainly, this is not the p urpose ; in fact, comity and consisten cy must be ba lanced, and our duty to protect the public must always be paramount. The majority s approach would have us relegate this important goal to the outskirts of our analysis, drawing upon it only when convenie nt, or when w e have already come to a conc lusion base d on wh at we perc eive to be more important concerns. In fact, comity is the underlying, pe rhaps the o nly, purpose for Rule 16-773. Consequently, to allow internal consistency to override the Rule itself, again, makes our reciprocal discipline framework utterly and totally superfluous and mean ingless. B. The majority is also imposing a lesser sanction because it believes that Rule 16773(e)(4) is implicated. This is not the case. The purp ose of R ule 16-77 3(e)(4) is to provide an escape mechanism for those meritorious cases in which a sanction is unwarranted or is unduly harsh; by providing for exceptional circumstances, it ensures that when the condu ct established does not constitute miscon duct in this S tate or it warrants substantially different discipline in this State, (emphasis added) reciprocal sanctions will not be imposed. Exceptional circumstances are those which are unusual; -15- not typical. (O xford Conc ise Dic tionary, 9 th Edition, 1995) Substantially different discipline is that which is of real importance, value, or validity; of la rge size or amo unt. (Id.). The purpose of such extreme language is to ensure that Rule 16-773(e)(4) remains a rarely-used exception, on e which a pplies only w hen the disc ipline typically impos ed in this state for the conduct at issue is drastically different than that imposed by the original jurisdiction. It is not an excuse for the Court to impose whatever disciplin e it sees fit, whenever it is dissatisfied with the sanction issued by the original jurisdiction. The Court s only burden under Rule 16-773(e) is to assess respondent s and Bar Counsel s argumen ts and to determine whether either side has proven the existence of an exception by clear and convincing evidence. It is the respondent s burden to prove that a lesser sanction, or no sa nction, s hould b e impo sed. See Sabghir, 350 Md. at 84, 710 A.2d at 934; Richardson, 350 M d. at 371, 71 2 A.2d a t 533; McCoy, 369 Md. at 236-37, 798 A.2d at 1138; Roberson, 373 Md. at 356, 818 A.2d at 1076; Caf ferty, 376 Md. at 727, 831 A.2d at 1058. To that end, the Court must analyze Maryland initiated cases in which at torneys have been sanctioned fo r misconduc t identical to that committed by the reciprocal responde nt. It should not, however, characterize every discrepancy in sanction as an exceptional circumstance prohibiting reciprocal discipline. This is nothing short of a deliberate dilution and distortion of the m eaning of Ru le 16-773(e). Judge Raker and Judge Wilner join in the views expressed herein. -16- -17-

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