Attorney Grievance v. Reinhardt

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In the Circu it Court for B altimore C ounty Case No. 03-C-05-3297 IN THE COURT OF APPEALS OF MARYLAND Misc. D ocket A G No . 1 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. RICHARD J. REINHARDT Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Raker, J. Harre ll, Battag lia and G reene, J J. dissen t. Filed: February 10, 2006 The Attorney Grievance Commission of Maryland filed a petition with this Court for disciplinary action against Richard J. Reinhardt, alleging violations of the Maryland Rules of Profession al Condu ct.1 The Commission charged respondent with violating Maryland Rules of Pro fession al Con duct: (1 ) Rule 1 .1 Com petenc e, (2) Ru le 1.2 Scope of Representation, (3) Rule 1.3 Diligence, (4) Rule 1.4 Communication, (5) Rule 3.2 Expediting Litigation, and (6) R ule 8.4 M isconduc t. Pursuant to Maryland R ule 16-752(a), we referred the matter to Judge Ruth Jakubowski of the Circuit Court for Baltimore County to make findings of fact and proposed conclusions of law. Judge Jakubowsk i held an evidentiary hearing and concluded that responden t had violated Rules 1 .1, 1.2(a), and 1.4(b). Respondent admitted to v iolating M aryland Rules of Professional Conduct 1.3, 1.4(a) and 3.2. I. The Petitioner has charged Respondent with violating the following rules of Marylan d Rule s of Pro fession al Con duct. Rule 1.1. Competence. A lawyer shall pr ovide com petent repre sentation to a client. Competent representatio n requires th e legal know ledge, skill, 1 The version of the Maryland Rules of Professional Conduct applicable to this case is the version of the Maryland Rules in effect prior to July 1, 2005. thoroughness and preparation reasonably necessary for the represe ntation. Rule 1 .2. Scop e of Re presen tation. (a) A lawyer shall abide by a client's decisions concerning the objectives of represe ntation, subje ct to paragraphs (c), (d) and (e), and, when appropriate, shall consult with the client as to the means by which they are to be pursued. A lawyer shall abide by a client's decision whether to acce pt an of fer of s ettleme nt of a m atter. In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and wheth er the clie nt will te stify. (b) A lawyer's representation of a client, including representation by appointment does not constitute an endorsem ent of the c lient's political, econo mic, soc ial or mo ral view s or activ ities. (c) A lawyer may limit the objectives of the representation if the client consen ts after c onsulta tion. (d) A lawyer shall no t counsel a c lient to engag e, or assist a client, in conduct that the law yer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may co unsel or ass ist a client to ma ke a good faith -2- effort to determine the validity, scope, meaning or application of the law. (e) When a lawyer knows that a client expects assistance not permitted by the rules of p rofessiona l conduct o r other law, th e lawyer shall consult with the client regarding the relev ant limitations on the lawyer s conduct. Rule 1.3. Diligence. A lawyer shall act with reasonab le diligence a nd prom ptness in represe nting a c lient. Rule 1.4. Communication. (a) A lawyer shall keep a client reasonably informed about the status of a matter and promp tly comply with reasonable requests for information. (b) A law yer shall explain a matter to the extent reasonab ly necessary to permit the client to make informed decisions regarding the represe ntation. Rule 3.2. Expediting Litigation. A lawyer shall make reasonable efforts to expedite litigation consiste nt with the inter ests of th e client. Rule 8 .4. Mis cond uct. It is prof essiona l miscon duct fo r a lawye r to:. . . -3- (c) engage in conduct in volving d ishonesty, fraud, deceit or misreprese ntation; (d) eng age in c onduc t that is pre judicial to the adm inistratio n of jus tice;. . . The parties entered into a Stipulation (Joint Exhibit 1) in which most of the a llegation s of Pe titioner's C ompla int have been a dmitted . All the Petitioner's charges against the Respondent arise out of the Respondent's handling o f a person al injury claim of his client, Ms. Bernice Cohen, who was involved in an automobile accident on August 2, 1996. The evidence was und isputed that M s. Cohen was injure d in a multi-vehicle automob ile accident in M aryland on A ugust 2, 19 96. At the time of the accident, Ms. Cohen was a resident of New York an d the accide nt occurred in Maryland. The evid ence is also undispu ted th at within about tw o days of Ms. Coh en's release from Johns Hopkins Hospital, sometime in August of 1996, she engaged the Respondent to represent her in any claims resulting from the automob ile accident. It is further undisputed that the Respondent assisted Ms. Cohen in making a claim against her spouse's auto insurance carrier for personal injury protection (P IP) benef its and actua lly obtained th ese benef its for Ms. C ohen. It is also undisputed that the Respondent obtained the investigative report, conducted his own investigation and obtained medical reports and bills from Ms. Co hen s hea lth care pro vider. Respon dent adm its -4- that he was u nable to obtain a financial settlement from the party and/or parties who c aused t he acc ident. It is further undisputed that on or about July 30, 1999, the Respondent filed a lawsuit in the Circuit Court for Baltimore County on behalf of Ms. Cohen where he nam ed five D efendan ts including a corporate e ntity. It is further undisputed that on or about July 30, 1999, the Circuit Court for Baltimore County did issue summons to the Defendants named in the action. It is further undisputed and admitted by the Respondent that he failed to serve said Defendants and failed to take any further action on Ms. Cohen s claim. The Respondent further admit s that Ms. Cohen wrote to him on January 14, 2000, requesting a status on her case. The Respondent admitted that he did not respond to this letter and in fact lost the file. According to the testimony, he placed the file in a briefcase and later put that briefcase in a closet, obtained a new briefcase, and did not realize that he had left the file in the old briefcase. It is further admitted by the Respondent that on or about February 20, 2001, Ms. Cohen w rote to the Respond ent again requesting information about the status of the case and the R espondent adm its to not responding to her letter. The evidence further showed that on September 27, 2001, the Clerk of the Circuit Court for Baltimore County issued a Notice of Contemplated Dismissal pursuant to Maryland Rule 2-507. The exhibits presented by the -5- Petitioner indicated that the notification was sent by mail to the Respondent at his Bos ley Road address. In testimony before this Court the Respondent indicated that he does not recall ever receiving the 2-507 notice. Although he admits that he failed to take any action to prevent the dismissal of the Circ uit Court lawsuit, he d oes state that if he had received this notice he would have immediately filed a Motion to Stay the Dismissal under Rule 2-507. Furthermore, in reviewing the Respon dent's file that w as admitted into evidence in Petitioner's Exhibit 1, there is no evidence that the 2-507 notifica tion is in th e Resp onden t's file for Ms. C ohen. It is further undisputed that on or about April of 2003, M s. Cohen asked a friend, who is an attorney, to contact the Respondent to gain additional information about the status of her case. On or about M ay 15, 2003, it is admitted that Elizabeth O'Leary, a New York attorney, spoke with the Respondent by phone an d indicated that he wa s trying to determine the status of her case and promised to contact Ms. Cohen in a few days. Respondent failed to contact Ms. Cohen following the May, 2003, telephone conversation. It is also admitted that on or about July 8, 2003, Ms. O'Leary, counsel in New York, sent Respondent a letter as a follow-up again requesting follow-up. Respondent testified that sometime around July or August of 2003, he conducted an aggressive search for the file. He also testified that although he -6- had been searching for the file sin ce January of 2002, that a t this point in time he underwent a more rigorous search and ultimately found the lost file in a briefcase in the closet. It is further undisputed that on August 27, 2003, the Respon dent sent M s. Cohen a letter enclosin g a copy of th e lawsuit. Respondent admits that he never told Ms. Cohen that he had lost her file and that he had taken no action on her case since 1 999. He did, how ever, indicate in his letter that there was an issue about secu ring service o n multiple Defend ants and advised her to forward any additional medical expenses for further processing. Respondent testified that at the time he sent this letter he did not know that the case had been dismissed on or about September 27, 2001. It is undisputed by the Respondent that following the letter of August 27, 2003, he did not take any action on Ms. Cohen s case. It is further admitted that Ms. Cohen wrote another letter to the Respondent on or about December 3, 2003, informing that she had neither received mail or telephone communications and wanted a response within thirty days. Respondent admitted to not responding to Ms. Cohen s letter of December 3, 2003. It is further admitted that on or about April 7, 2004, Ms. Cohen contacted the Attorney Grievance Commission of Maryland concerning Respondent's conduct. Respondent admitted in h is testimony that he lost the file and continued to search for it over an eighteen month period to no avail -7- until Augu st of 20 03. He denies that he ever knew that the case was dismissed and testified that h e first learned of the dismissal when meeting with a representative of the Attorney Grievance Commission. He testified that he was "o verwh elmed " whe n he fo und ou t that the c ase wa s dismis sed. The Respon dent admits to violating Rule 1.3 (Diligence), 1.4(a) (Communication) and Rule 3.2 (Expediting Litigation). The Respondent denies that he violated Rule 1.1 and 1.2 as he argues that both of these Rules are subsumed by his lack of diligence which he admits in Rule 1.3. The Respondent denies that he violated Rule 8.4 (Misconduct) as a result of the Respondent's admitting to violating Rules 1.3, 1.4(a) and 3.2, this Court o nly will address Rule 1.1, 1.2 and 8.4 in making its Finding of Fact a nd Conc lusion o f Law . Rule 1.1. Competence. In considering all the facts and circumstances elicited through testimony and exhibits in this case, this Court finds that by clear and convincing evidence that the Res ponden t in fact wa s in violation of Maryland Rule of Professional Conduct 1.1. The Respondent admitted to losing a clien t's file and faili ng to recon struct it in a timely fas hion, theref ore, this Court finds that this admission alone is sufficient by clear and convincing evidence to find that the Respondent violated Maryland Rule of Professional -8- Conduct 1.1 under the case of Attorney Grievance Commission v. Ober, 350 Md. 6 16 (19 98). Rule 1.2. Scope of Representation. The Respondent admitted to not taking any action on the case after July 30, 1999 , when the file was los t. He further admits to not communicating with Ms. Cohen as to the fact that the file was lost and that he was taking no action on her behalf despite her numerous requests regarding status and ultimate resolution of this case. This Court finds by clear and convincing evidence that the Respondent therefore did violate Maryland Rule of Profe ssional C onduc t 1.2(a). Rule 1.4(b). Communication. The Respon dent testified th at he failed to explain at an y time following July 30, 1999, that he had lost the file and that no additional action had been taken on her case. This failure is, in this Court's opinion, by clear and convincing evidence, a violation of Maryland Rule of Professional Conduct 1.4(b) since the Respondent did nothing to permit Ms. Cohen to make an inform ed dec ision reg arding her rep resenta tion. Rule 8.4. M isconduct. It is Petitioner's position that the Respondent violated R ule 8.4(c) and (d). It is th e Petition er's position that there is insufficient mitigation based on -9- the Respondent's testimony or the report of Dr. Janofsky regarding a serious or debilitating disorder. Fu rthermore, it is Petitioner's position that his conduct in failing to take any action on Ms. Cohen's case and failing to tell her that he had lost the file and that the case was in fact dismissed rises to the level of proof by clear and convincing evidence to support a finding of a violation of Maryland Rule of Professional Conduct 8.4. This Court has considered the credibility of the Respondent and has reviewed the exhibits presented by both the Petitioner and Respondent and does not find sufficient evidence to suppo rt a finding by clear and con vincing ev idence that th e Respo ndent's con duct in this case rose to the level of misconduct as stated in Rule 8.4. This Court has reviewed the c ases that r elate to intent a nd has co nsid ered the R espo ndent's explanation as to why he failed to tell Ms. Cohen that he lost the file and had taken no actio n on he r case sin ce July of 1999. Based on all the factors, including credibility of the witness as well as the mitigating factors as testified to by the Respo ndent and discussed in a separate p aragraph in this opinion , this Court finds that the Petitioner has failed to meet its burden of proof by clear and co nvincin g evide nce tha t the Re spond ent viola ted Ru le 8.4(c) and (d) . Mitigating Factors The Respondent has introduced into evidence a report dated July 21, 2005, of Dr. Jeffrey Janofsky. Dr. Janofsky is a psychiatrist who evaluated the -10- Respondent for purposes of rendering an opinion as to his mental state at this time. Dr. Janofsky opined that Mr. Reinhardt was not suffering from a diagnosa ble mental disorder but did suffer from personality trait vulnerabilities that may have interfered with his ability to adequately resolve the Cohen matter. Dr. Janof sky reaffirme d what M r. Reinhard t stated to him and to both counsel and in fact to this Cou rt, that the reason he failed to deal with what he had done in the Cohen matter was due to "embarrassment". Dr. Janofsky opined that he failed to face the consequences of misplacing the file which led to additional errors in judgme nt on his pa rt. Dr. Janofs ky further no tes that his difficulties are exacerbated by a lack of secretaries, associates, partners or other support systems to help him deal with case m anagement. Th is Court found Dr. Janofsky's report supportive of this Court's findings that mitigating factors did exist to explain the Resp ondent's action in this case. This C ourt considered these mitigating factors in arriving at he r findings a s it relates to Rule 8 .4(c) an d (d) alo ng with the testim ony of th e Resp onden t. Conclusions of Law The Respondent has admitted to violating Maryland Rule of Profe ssional C onduc t 1.3, 1.4( a) and 3 .2. -11- This Court finds that the Respondent violated Maryland Rule of Professional Conduct 1.1 by losing the client s file and failing to reconstruct it in a timely fashion. This Court further finds that the Respondent violated Rule 1.2 by failing to follow the client s instruction to pursue this case and inform her of the status of the case. This Court finds that the Respondent violated Rule 1.4(b) in failing to inform the client of h is actions or la ck of actions, therefore, denying her the opportun ity to make an informed decision as to further representation of her case. This Court finds that the Respondent did not violate Rule 8.4(c) and (d) in that he did not have sufficient intent rising to the level of dishonesty, fraud, deceit or misrepresentation to a standard of clear and convincing evidence. This Court has considered the mitigating factors as well as the credibil ity of the R espon dent in a rriving a t this con clusion . -12- II. Bar Counse l excepts to the hearing judge s fa ilure to find violations of 8.4(c) and (d). Respondent has not filed any exceptions to the hearing judge s findings of fact or conclusions of law . This Court has original and complete jurisdiction in attorney discipline matters. Attorney Grieva nce v. J ames , 385 M d. 637, 6 54, 870 A.2d 229, 239 (2005). Clear and convincing evidence must support the findings of the h earing ju dge. Attorney Grievance v. Zuckerman, 386 Md. 341, 363, 872 A.2d 693, 706 (2005). The hearing judge s findings of fact are prima facie correct, and will not be disturbe d unles s clearly err oneou s. Attorney Grievance v. Penn ington , 387 M d. 565, 586 , 876 A.2d 642, 654 (2005). W e review th e hearing judge s conclusions of law de novo. Id. Bar Counsel argues that the hearing judge s findings as to Rule 8.4(c) are clearly erroneous because, in considering whether respondent violated the rules, the hearing judge impermiss ibly considered m itiga tion evid ence offered by respondent. Citing Attorney Grievance v. Zuckerman, 386 Md. 341, 872 A.2d 69 3 (2005), B ar Coun sel argues th at facts tending to sh ow m itiga tion may be used to determine the severity of the sanction, but may not be weighed in the balance o f whethe r clear and c onvincing evidence was add uced to prove a violatio n of the rules. Bar Counsel paints with too broad a brush. Ev idence pre sented to the hearing judge may be relevan t for differe nt purpose s. Evidence may be relevant as to a rule violation as -13- well as to the approp riate sanction. For example, assuming that Bar Counsel alleged that an attorney engaged in fraudule nt conduc t, evidence a s to an attorne y s specific intent wou ld be relevant and pro perly con sidered in asses sing w hether R ule 8.4( c) was violated . It would also be relevant in the consideration of the appropriate sanction. In concluding that respondent did not violate Rule 8.4(c) and (d) by clear and convincing evidence, the hearing judge indicated that she co nsidered responden t s intent, his explanation as to why he did not tell the client that he had lost the file and had taken no action on her case since July 1999, and the credibility of the witnesses, as well as the mitigating factors testified to by respondent and the psychiatric evidence presented by responde nt. The hearing judge concluded that [t]his court finds that [r]espondent did not violate Rule 8.4(c) and (d) in that he did not have sufficient intent rising to the level of dish onesty, fraud, deceit or misrepresentation to a standard of clear and convincing eviden ce. Rule 8.4(c) provides that [i]t is professional misconduct for a lawyer to engage in conduct involving disho nesty, fraud, deceit or misrepresentation. The hearing judge was clearly erroneous because specific intent is not a necessary ingredient of dishonesty or misrepresentation. Respondent was dishonest and misrepresented the truth when he told his client that he was working on the case when, in fact, he had lost the file and was not working on the case at all. In dealing with his client, respondent exhibited a lack of probity, integrity and straightforwardness, and, therefore, his actions were dishonest in tha t sense. See Attorney -14- Grievance v. Sheri dan, 357 Md. 1, 25-26, 741 A.2d 1143, 1156 (1999). Respondent confuses intent with motive. Although respondent may have acted in a certain manner because he was embarrassed, he unquest iona bly told the client a lie. Accordingly, we sustain petitioner s exception to the he aring judge s finding as to R ule 8.4(c). Responden t s admission as to violation of Rules 1.3, 1.4(a), and 3.2, along with the court s finding by clear and convincing evidence that respondent violated Rules 1.1, 1.2, 1.4(b), and this Court s holding that responde nt violated 8 .4(c), establish a violation of Rule 8.4(d). Behavior that may seriously impair public confidence in the entire profession, without extenuating circumstances, may be conduct prejudicial to the administration of justice. See Att orney G rievan ce v. Ch ildress, 360 Md. 37 3, 381, 758 A.2d 117, 121 (2000 ). An attorney s material misreprese ntation to the c lient, his failure to act on the client s case for over three years and failure to expedite litigation, to the client s detriment, is conduct prejudicial to the administration of justice. Failure to represent a client in an a dequate manner and lying to a client constitute a violation of Rule 8 .4(d). See Attorney Grievance v. Zdra vkovic h, 362 Md. 1, 31, 762 A .2d 950, 96 6 (2000); Attorney Grievance v. Mooney, 359 Md. 56, 83, 753 A.2d 17 , 31 (2000 ); Attorn ey Grie vance v. Brug h, 353 Md. 475, 478-79, 727 A.2d 91 3, 914-15 (1999 ). -15- III. We now turn to the appro priate sanction. The sanction for a violation of the Maryland Rules of Professional Conduct depends on the facts and circumstances of each case, including a consideration of any mitigatin g facto rs. Attorney Grievance v. Zuckerman, 386 Md. 341, 375 , 872 A.2d 693, 713 (2005). In d etermining the appropriate sanction to be imposed, we are guided by our interest in protecting the public and its attendant confidence in the lega l profes sion. Attorney Grievance v. Pennington, 387 Md. 565, 595, 876 A.2d 642, 660 (2005). Th e purpose of attorney disc iplinary procee dings is not to punish the lawyer, but to protect the public as well as to deter other lawyers from violating the Rules of Professional Condu ct. Id. at 596, 876 A.2d at 660. In order to protect the public, we impose a sanction comme nsurate with the nature and gravity of the violations and the intent with which the violations were c omm itted. See Attorney Grievance v. Goodma n, 381 Md. 480, 497, 850 A.2d 1157, 11 67 (2004). Bar Counsel maintains that disbarment is the appropriate sanction because respondent has engaged in a continuing course and pattern of dishonest a nd deceitf ul conduc t absent any compelling, extenuating circumstances. Respondent contends that a suspension of betwe en fifte en and thirty days w ould be approp riate. Respondent testified at the hearing that he did n ot inform h is client about the missing file when she asked about the status of her case out of absolute embarrassment. He testified that he looked frequently for her file, but that he then would get sidetrack ed with -16- other stuff. Respondent acknowledged that the lost file and his substantial inaction was information that the client needed to know so that she could make educated decisions about her case. The hearing judge apparently considered this testimony credible, because she accepted respondent as credible in arriving at her conclusion that his cond uct lacked sufficient in tent rising to the lev el of dis hones ty, fraud, d eceit, or m isrepres entation . Although we have found the hearing judge erred in considering respondent s motive in determining whether responde nt violated the rules, motive and lack o f specific in tent may be rele vant wh en this Court consid ers the a pprop riate san ction. See id. at 497, 8 50 A.2 d at 116 7. We note that the hearing judge did n ot find that it w as respond ent s consc ious objectiv e to engage in dishonest conduct in violation of Rule 8 .4(c) an d (d). The hearing judge is in the best position to judge the credibility of the witnesses, and we accept her conclusion as to respondent s state of mind. Although respondent did act dishonestly and did misrepresent to his client, there is no evidence that he acted out of a fraudulent or selfish motive. Respondent presents several factors in mitigation. He has fully cooperated with Bar Counse l. He has engaged in negotiations with the client s attorney regarding restitution, expressed great remorse to the client, and informed the hearin g judge tha t he continu es to work with the clien t s new co unsel to settle the matter. R esponde nt presented psychiatric evidence. Dr. Janofsky opined that respondent suffered from per sonality trait vulnerabilities that may have inte rfered with respondent s ability to adequately resolve the problems that -17- occurred with regard to Ms. Cohen s case. Dr. Janofsky further ob served that responden t s failure to face th e conse quenc es of h is action led to ad ditional errors in judgm ent. Bar Counsel maintains that the appropriate sanction is disbarment, arguin g that Dr. Janofsky s report does not constitute compelling extenuating circumstances necessary to justify a sanction less than disbarment for respondent s acts of intentional dishonesty. Bar Counsel points out that this incident is not the first disciplinary matter for respondent, and that respondent was suspended indefinitely in 1989, with the right to reapply after the expiration of ninety days.2 As to the client s injury flowing from respondent s conduct, her complaint against five defenda nts for $50 0,000 in da mages, gro unded in tort, was dismissed for lack of prosec ution, at l east in p art due to respon dent s in attentive ness an d negle ct. See Md. R ule 2-5 07. At the outset, we note that lying to a client reflects most negatively on the legal profession. It goes without saying that a lawyer should not lie to the client about the status of the client s case. See, e.g., Iowa Supreme Court Attorney Disciplinary Bd. v. Soak, 706 N.W.2d 385, 389 (Iowa 2005)(stating that the practice of law simply cannot ha ve people engaged in it who lie to their clients ); Oklahoma Bar Ass n v. Bolusky, 23 P.3d 268, 273 (Okla. 2001) (explaining that a lawyer should not lie to a client about the status of his or her case under a rule identical to MRPC 8.4(c)). We agree with the view expressed by the 2 In respondent s 1989 matter, alcohol was found to be a substantial cause of respondent s conduct. See Attorney Grievance v. Nisbet, 316 Md. 464, 472, 560 A.2d 18, 22 (1989) (noting that [w]hen alcoholism is, to a substantial extent, the cause of the misconduct by an attorney, we v iew the miscond uct in a somewh at different light ). -18- Supreme Court of New Jersey, stating that [p]ublic confidence in the Bar is diminished when an attorney m isrepresents to his client that his ca se is procee ding smo othly when it is not. Clients should not continue to suffer the consequences of being told their case is under control when it is not. In the Matter of Grabler, 552 A .2d 596 , 600 (N .J. 1989 ). Every misrepresentation, howe ver, does n ot call for disb arment. W riting for this Court, Judge Cathell discussed the reach of Attorn ey Grie vance v. Van derlind e, 364 M d. 376, 773 A.2 d 463 (20 01), as follow s: We have not, however, always found disbarment to be the appropriate sanction w here there is misrepresentation involved, especially where misappropriation of money was not involved. In Attorn ey Grie vance Com missio n v. Ha rringto n, 367 Md. 36, 785 A.2d 1260 (2001), we found an indefinite suspension to be the appropriate penalty for an attorney who had made one misrepresentation to one clien t but whose major transgression was his lack of cooperation with the Attorney Grievance Commission. We d id no t app ly Vanderlinde as a bright-line rule, but applied the facts and circumstances of that case to determine the approp riate sanction . What Vanderlinde holds is that ordinarily disbarment will be the appropriate sanction when dishonesty is involved; however, we must still examine the facts, circumstances, and mitigation in each case. In Harring ton, there was one instance of a degree of misrepresentation. There was, however, no pattern of a course of deceitful conduct over an extensive period of time suffic ient, in our view to support a disbarment. The gravaman of the disciplinary proceeding was the attorney s lack of diligence and his lack of cooperation with bar counsel. There, we determined that the a pprop riate san ction w as an in definite suspen sion. Attorney Grievance v. Lane, 367 Md. 633, 646-47, 790 A .2d 621 , 628-2 9 (200 2). See also Attorney Grieva nce v. Jeter, 365 Md. 279, 293-94, 778 A.2d 390, 398 (2001) (concluding -19- that given the court s findings that the respondent did not intend to defraud and that the respondent was rem orseful, the a ppropriate s anction is an indefinite suspension with a right to reapply for ad mission to th e Bar in six months); Iowa Supreme Court Attorney Disciplinary Bd. v. Soak, 706 N.W.2d 385 (Iowa 2005)(imposing suspension with no possibility of reinstatement before two years for misrepresentation of status of client s case); Oklahoma Bar Ass n v. Bolusky, 23 P.3d 2 68 (Okla . 2001)(attorney suspended for misrepresenting status of client s case); In the Matte r of Temp lin, 502 A.2d 1 (N.J.1985) (attorney who lied to his client advising him the case was pending after default judgment had been entered for attorney's failure to a nswer inte rrogatories o r respond to the court suspended for one year); In the Matter of Loring, 374 A.2d 466 (N.J. 1977) (attorney who informed a client that an appeal from the trial court's dismissal of an action filed out of time was pending, when the appeal had been dismissed due also to late filing, su spended for six month s). Responden t s conduct related to one client and o ne case. Sig nificantly, this is not a case of misapp ropriation of funds or c riminal con duct. Considering all of the circumstances, we conclude that the appropriate sanction is an indefinite suspension from the practice of law. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THE COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-715, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF ATTORNEY GRIEVANCE COMMISSION AGAINST RICHARD J. REINHARDT. -20- IN THE COURT OF APPEALS OF MARYLAND Misc. D ocket A G No . 1 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. RICHARD J. REINHARDT Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Harrell, J ., which Battaglia and Greene, JJ., Join. Filed: February 10, 2006 I respectfully dissent as to the sanction only. Rather than an indefinite suspension, disbarment is more appropriate. The majority is correct in sustaining the Commission s exceptions. Thus, Reinhard t, for sanctioning purposes, stands adjudged as having violated the Maryland Rules of Professional Con duct ( MR PC ) 1.1, 1.2, 1.3, 1.4(a) and (b), 3.2, and 8.4(c) and (d) in the course of his representation of Ms. Cohen. Mitigation is analyzed traditionally by the Court in terms of the American Bar Associatio n s (ABA) recommended standards. For example, in Attorney Grievance Comm n v. Glenn, 341 Md. 448, 488-89, 671 A.2d 463, 483 (1996), we stated: The mitigating factors listed in the ABA Standards include: absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to m ake restitution or to rectify consequences of miscon duct; full and free disclosu re to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental d isability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. (Footnote omitted) Id. ; see also Attorney Grievance Comm n v. Zuckerman, 386 Md. 341, 375, 872 A.2d 693, 713 (2005). A s such, fac ts tending to s how m itigation are us ed to determ ine the severity of the sanction and not whether evidence adduced has established a violation of the rules by clear and convincing evidence. Zuckerman, 386 Md. at 368, 872 A.2d at 709. We intentionally set a h igh bar for responde nts in cases w here the flag ship violation is of MRPC 8.4(c) ( conduct involving dishonesty, fraud, deceit or misrepresentation ), such as the present one. That high bar is described best in Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376 , 413-14, 773 A .2d 463, 485 (200 1). In cases of intentional dishonesty, misappropriation cases, fraud stealing, serious criminal conduct and the like, we will not accept, as comp elling extenu ating circumstances, anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the root cause of the misconduct and that also result in an attorney s utter inability to con form his o r her cond uct in accordance with the law and the MRPC. Vanderlinde explained why the bar was set at th at height: Unlike matters related to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of b asic charac ter to such a d egree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and disho nesty are, or are not, present in an attorney s character. Disbarment ordinarily should be the sanction for intentional dis honest co nduct. Vanderlinde, 364 Md. at 418, 773 A.2d at 488. The majority in the present c ase points o ut, appropria tely so, that we a re not inflex ible and unyielding in our application of Vanderlinde. The majority seeks to illustrate this by -2- quoting dicta from Attorney Grievance Comm n v. Lane, 367 Md. 633, 646-47, 790 A.2d 621, 628-2 9 (200 2). See majority slip op. at 20. Interestingly, a unanimous Court in Lane nonetheless found disbarment to be the appropriate sanction where Lane made numerous misrepresentations to two clients about work he never did. We reached this result despite the mitigating circumstances of Lane s private practice inexperience at the time of the miscond uct, his remorse, his cooperation with Bar Counsel throughout the grievance process, and his showing, by virtue of his suc cessful practice as a public defende r and later a prosecutor following the misconduct, that he was no threat to the pu blic. Lane, 367 Md. at 644, 790 A.2d at 627. It seemed that the Court was persuaded that disbarment, rather than suspension, was appropriate because of the repetition and materiality of the misrepresentations made by Lane while in private p ractice. Lane, 367 Md. at 647, 790 A.2d at 629.1 Not cited by the majority in the present case, but referred to in Lane, is Attorney Grievance Comm n v. Harrington, 367 Md. 36, 785 A.2d 1260 (2001). In Harrington, the Court majority chose indefinite suspension over disbarment where Harrington violated: MRPC 1.3, 1.4 (a) and (b), 1.16(d), 8.1(b), and 8.4(d) in one matter; MRPC 1.3, 1.4(a) and (b), 8.1(b), and 8.4(c) and (d) regarding a second complaint; and, MRPC 8.1(b) and 8.4(d) in a third case. T he miscon duct that led to Harrington being found in the one case to have 1 Lane violated M RPC 1.1, 1.2, 1.3, 1.4(a) an d (b), and 8.4(a), (c), and (d) regarding one comp lainant. As to the other complainant, he violated MRPC 1.1, 1.2, 1.3, 1.4(a) and (b), 1.5(c), and 8.4(a), (c), and (d). -3- violated MRPC 8.4(c) was leading his client to believe he had filed a lawsuit on her behalf, when in fact he had not, and account[ing] for the delay because he was waiting for a court date. Harrington, 367 Md. at 48, 785 A.2d at 1267. In settling on suspension in Harrington, the Court focused almost entirely on Harrington s multiple violations of MRPC 8.1, evinced by his flagrant disregard of and response to communications from Bar Counsel. Harrington, 367 Md. at 50-51, 785 A.2d at 1268. The singular MRPC 8.4(c) violation w as barely men tioned by the m ajority in Harrington in its brief ana lysis of the app ropriate sanc tion. The lon e dissenter in Harrington, Judge Raker, honed in on the 8.4(c) violation and urged disbarment on that basis. She stated there that [a]n a ttorney w ho is dis hones t and de ceitful s hould n ot be pr acticing law. Harrington, 367 Md. at 53, 785 A.2d at 1269-70. Putting aside for a moment the weight to be accorded Dr. Janofsky s 21 July 2005 written report 2 in the mitigation analysis in the present case, it seems to me that the remaining relevant mitigation factors are in a state of equilibrium. The hearing judge found that Reinhardt did not act w ith a selfish mo tive. Also, R einhardt co operated w ith Bar Co unsel. He expres sed rem orse an d wor ked w ith Ms . Cohen s new attorney to try and settle her restitution claim.3 On the other side of the scale is Reinhardt s prior history with the 2 Dr. Janofsky did not supply live testimony before the hearing judge. Therefore, demeanor-based credibility could not have been a factor in the hearing judge s analysis. 3 In Harrington, the respondent attorney paid the particular complainant in the 8.4(c) violation case $35 ,000 in settlement of the loss she c laimed as th e result of his miscond uct. Reinhardt, as he stands before us, offers only good intentions in similar regard. -4- Commission4 and the fact that his misconduct in this case resulted in his client not bein g able to prosecute her tort claim where she sought $500,000 in damages. No other of the ABA factors are in pla y on this re cord. Turning then to Dr. Janofsky s report, I find it to be of little service in the mitigation analysis. Dr. Janofsky s letterhead indicates that he was a Board-certified psychiatrist and neurolog ist. The opening paragraph of his report, however, states that Reinhardt s counsel in the present case engaged the doctor only to assess whether Mr. Reinhardt was suffering from psychological factors that would impact negatively on his ability to practic e law. (Emphasis in original). Having administered an MMPI-2 test5 to Reinhardt, Dr. Janofsky opined that, although noting a few frailties, Respondent s MMPI-2 diagnostic profile is just within normal range and was not diagnostically definitive. Continuing, Dr. Janofsky reported that Reinhardt s earlier alcohol abuse, occurring around the time of his ethical infractions leading to his indefinite suspension in the late 1980's, had abated. Respondent had remain ed sob er since about 1 990. Other than the alcohol abuse treatment, Reinhardt had no ps ychiatric c ontacts . The ultima te opinion e xpressed b y Dr. Janofsk y was, in pertine nt part: 4 In addition to n oting his prior indefin ite suspension, Dr. Janofsky s report, under the Case Summ ary heading , lists additional disciplinary contacts Reinhardt had with Petitioner. It was reported that he had been reprimanded in 1987 for neglect of a personal injury case. In August 2003, he received a warning from the Commission for lack of diligenc e in handling an estate. 5 The Minnesota M ultiphasic Personality Inventory (MM PI)-2 is a frequently used clinical te st to asse ss an ind ividual s psycho logical p ersona lity profile. -5- It is my opinion that around his alleged mismanagement of the Cohen matter, Mr. Reinhardt was not suffering from a diagnosa ble mental disorder. However, Mr. Reinhardt was suffering from personality trait vulnerabilities that may have interfered with his ability to adequately resolve the Cohen matter. Personality traits are enduring lifelong patterns of perceiving, relating to and thinking about the environment and oneself and are exhibited in a wide range of important social and personal contexts. In Mr. Reinhardt s ca se, Mr. Reinhardt s tendency to misinterpret the m otives of oth ers and his rationalization of his ow n behavior in his w ay of avoiding h is own feelings of hostility and affe cts his ability to deal with difficult matters. Additionally, his tendency to cover over and to deny the intensity of his resentments could have also exacerbated his problem s in effectiv ely dealing w ith his misplacement of the Cohen file. Mr. Reinhard t s statements to both myself and to the Bar Counsel investigator th at embar rassment led to his behaviors in the Cohen matter is a very accurate statement. Failure to face the consequences of misp lacing the file led to furthe r errors in judgmen t on Mr. R einhardt s p art. Mr. Reinhardt s difficulties we re further exacerbated by his lack of a secretary, associates, partners or any other support systems to help him more appropriately deal with case difficulties. (Emphasis in original). I glean from Dr. Janof sky s report that, w hile Reinhardt may have had issues (as that term is used in common parlance), he was not mentally ill at the time of the misconduct in this case. M erely having issues, how ever, is not sufficient since we decided Vanderlinde to dilute the ordinary sanction of disbarment for intentional dishonesty, deceit, or misrepresentation. The persuasiv e force of evidence required to satisfy the Vanderlinde threshold is -6- there . . . needs to be almost conclusive, and essentially uncontroverted evidence that would support a . . . finding not only that the attorney had a serious and debilitating mental condition, but that the mental condition, in a sustained fashion, affected the ability of the atto rney in normal day to day activities, such that the attorney was unable to accomplish the least of those activities in a normal fashion. Unless that standard is met the impairment is not the root cause of the miscond uct. Vanderlinde, 364 Md. at 418-19, 773 A.2d at 488. Dr. Janofsky s report does not s upply a sufficient basis for mitigation. Accord ingly, I give Dr. Janofsky s report little weight in the analysis of the appropriate sanction in this case. Respondent engaged in intentional deceitful conduct, over an extended period of time, on multiple occasions. Embarrassment, however triggered, at having mislaid (or lost) Ms. Cohen s file is not an acceptable excuse for avoiding the client s many inquiries about the status of her case. Kno wing that he had d one nothing to effe ctuate service of process, or engaged in any other meaningful activity in furtherance of her case since filing suit on 30 July 1999, Reinhardt knew or should have known, given modern docket management practices and technologies used by clerk s offices statewide, that Md. Rule 2-507(c) (dismissal after one year for lack of prosecution) likely would be effectuated, irrespective of whether he actually received a copy of the formal Notice of Contemplated Dismissal from the clerk, sent on 27 September 2001. He made no effort at any time to reconstruct those parts of his file that could be found easily from other sources, such as obtaining a copy of the complaint from the court jacket, thus en abling him to carry on the re presentation in a timely and diligent manner. Given Reinhardt s prior skirmishes w ith the disciplinary system over -7- lack of diligence and other ethical obligations, I have no confidence in our ability to protect the public in the future from Reinhardt repeating with other clients the problems spread across this record or in demonstrating to other attorneys our lack of tolerance for this sort of conduct if we do not order disbarment in this case. The trust that must be at the center of the lawyer-client relationship is undermined otherwise. This Court has stated that intentional dishonest conduct b y an attorney is alm ost beyond e xcuse an d that disbarm ent should ordinarily be the sanction for such co nduct. Vanderlinde, 364 Md. at 418, 773 A.2d at 488. I would o rder disbarm ent of Re sponden t. Judge Battaglia and Judge Greene join in the dissenting opinion. -8-

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