Attorney Grievance v. Sweitzer
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Attorney Grievance Commission v. Barry E. Sweitzer, AG N o. 69, S ept. Ter m 200 5. [Maryland Rules of Professional Conduct 1.3 (Diligence), 8.4 (c) and (d) (Misconduct); held: Respondent violated MRPC 1.3 by failing to verify that a deed has been recorded in the Garrett County Land Records Office and he also violated MRPC 8.4 (c) and (d) by presenting a Gift Certification Form to the Motor Vehicle Adm inistration in an attempt to deceive the MVA by misrepresenting the nature of the transfer of the vehicle to avoid paying sales tax and inspection fees, and by misre presenting that he had the authority to sign the Gift Certification Form on behalf of his former wife. For these violations, Respondent shall be indefin itely suspe nded.] IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 69 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. BARRY E. SWEITZER Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Battaglia, J. Harrell and Greene, JJ., Dissent Filed: November 20, 2006 The Attorney Grievance Commission of Maryland ( Petitioner ), acting through Bar Counsel and pursuant to M aryland Rule 16-751 (a), 1 filed a petition for disciplinary or remedial action against Respondent, Barry E. Sweitzer, on December 30, 2005, in which there were two complaints included, one by Bar Counsel, and the other by a client, James L. Sebold. W ith respect to the Complaint of James L. Sebold, it was alleged that Respondent violated Maryland Rule of Professional Conduct 1.3 (Diligence)2 by failing to act w ith reasonab le diligence and promptness in recording a deed conveying land to Mr. Sebold, which Respondent prepared, in the Land Records of Garrett County. With respect to the complaint of Bar C ounsel, it was allege d that Resp ondent ac ted deceitfu lly when he, under the penalties of perjury, presented a Gift Certification Form that contained a forged signature of his former wife to the Motor Vehicle Administration ( MVA ), misrepresented the nature of the transaction by presenting the Gift Certification Form for a vehicle purchased at auction, and misrepresented that he had his former wife s authority to sign the Gift Certification Form on her behalf, in violation of R ule 8.4 (b), (c), and (d) (Miscon duct). 3 1 Maryland Rule 16-751 (a) provides: (a) Commencement of disciplinary or remedial action. (1) Upon approval of [the Attorney Grievance] Commission. Upon approval or direction of the [Attorney Grievance] Commission, Bar Counse l shall file a Peti tion for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.3 provides: A lawyer shall act with reaso nable diligen ce and pro mptness in representing a client. 3 Rule 8.4 p rovides in re levant part: (contin ued...) In accordance with Maryland Rules 16-752 (a)4 and 16-757 (c), 5 we referred the petition to Judge Donald E. Beachley of the Circuit Court for Washington County for an evidentiary hearing and to make findings of fact and conclusions of law. Judge Beachley held a hearing on May 9, 2006, and on June 1, 2006, issued Findings of Fact and Conclusions of Law, in which he found by clear and convincing evidence that Respondent had violated Maryland Rules of Professional Conduct 1.3 with respect to Mr. Sebold s complaint and 8.4 3 (...continued) It is professional misconduct for a lawyer to: * * * (b) commit a criminal act that reflects adv ersely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct th at is prejudicial to the administration of justice . . . . 4 Maryland Rule 16-752 (a) states: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the atto rney, to enter a scheduling order defining the extent of d iscovery and s etting dates f or the com pletion of discovery, filing of motions, and hearing. 5 Maryland R ule 16-75 7 (c) states in p ertinent part: The judge shall prepare and file or dictate into the record a statement of the judge s findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. -2- (c) and (d) w ith respect to B ar Coun sel s comp laint: Findings of Fact and Conclusions of Law The Court finds that, except as otherwise indicated, the following facts have been established by convincing evidence: 1. Respondent graduated from W est Virginia U niversity Law School and was admitted to the Maryland Bar on December 16, 1999. 2. Respondent is currently a member in good standing of the Maryland Bar. I. Findings of Fact Concerning Complaint of Bar Counsel (Re: Transfer of Tahoe/Presentation of Gift Certification Form to MVA) 3. Respondent and Cristine Kepple were married on August 17, 1991. They separated in March, 2001 and were divorced by a Judgment of Absolute Divorce dated April 21, 2004. 4. Pursuant to an Order issued by the Circuit Court for Garrett County, Maryland dated July 14, 2004, certain items of personal property were to be sold at auction. One of the items to be sold at auction was a 1997 Chevrolet Tahoe titled in the joint names of Respondent and Ms. Kepple. 5. Responden t s father, acting as the agent of the Respon dent, purchased the 1997 Chevrolet Tahoe at the public auction on September 23, 2004 for $2,700.00. Respondent had intended to perso nally bid o n the T ahoe, b ut he was arrested when he arrived for the auction. 6. Ms. Kepple s igned the b ack of the Maryland C ertificate of Title for the Tahoe (Petitioner s E xhibit 5) and delivered it to the auctioneer prior to sale. 7. Due to her conc ern that Re sponden t may attempt to register the Tahoe without transferring title to his sole name, Ms. Kepple w rote to the M otor Veh icle Adm inistration ( MVA ) to seek the a gency s assistan ce in ensuring that Respon dent transfe r title to the vehic le prior to its registration. A copy of M s. Kepple s letter to the MVA dated September 27, 2004 was admitted as Petitioner s Exhibit 4. 8. On Novemb er 17, 2004, Respondent went to the MVA office in Cumberland for the purpose of transferring title to the -3- Tahoe to his sole name. He was assisted at the MVA by customer service agent Eva Gibbs. Respondent presented Ms. Gibbs with the M aryland Certific ate of Title for the Tahoe and corresponding Gift Certification form. The Certificate of Title was properly signed by Respondent and Ms. Kepple. 9. In accordance with standard procedure, Ms. Gibbs entered the relevant information into the computer and discovered a flag pertaini ng to th is vehic le. The flag denoted Investigative Services o n the com puter and w as apparen tly generated as a result of Ms. Kepple s letter dated September 27, 2004. 10. Uncertain of the significance of the flag, Ms. Gibbs took both docu ments to co nsult with her supervisor. The supervisor directed M s. Gibbs to re tain the Cer tificate of T itle and Gift Certification form and specifically not give the docum ents to R espon dent. 11. Ms. Gibbs retu rned to the cus tomer s ervice c ounter , at which time she advised Respon dent there w as a problem with the transaction. Respondent asked Ms. Gibbs, What s the proble m?, to which Ms. G ibbs res ponde d, I don t know . 12. Respondent then asked M s. Gibbs if h e could look at the paperwork (Certificate of Title and Gift Certification form). Ms. Gibbs, contrary to her supervisor s instructions, gave the two docume nts to Respo ndent, at w hich time h e tore off the Gift Certification form which had been stapled to the Certificate of Title and left the MVA office. Respondent did not take the Certificate of Title, which w as left on the counter. 13. The Gift Certification form presented to Ms. Gibbs was not produ ced at th e hearin g. However, Ms. Gibbs testified that a signature that purported to be Respondent s appeared on the Signature of Giver line and a signature purporting to be Cristine Kepple or Cristine Kepple Sweitzer appeared on the Signature of Co-Giver line. When questioned by the Court concerning her recollection of the signatures, Ms. Gibbs said she was pretty sure that the signature for Ms. Kepple was not in a represen tativ e cap acity. 14. Respondent testified that he signed his name on the Signature of Giver line and that he signed Barry Sweitzer for C.K. Sweitzer or B.E. Sweitzer for C.K. Sweitzer on the Signature of Co-Giver line. Respondent testified that he had the authority to sign the Gift Certification form on behalf of his -4- wife based on statements made by Ms. Kepple s divorce attor ney. 15. As set forth in the Conc lusions of Law , infra, the Court cannot find by clear and convincing evidence that the Gift Certification form presented by Respondent to Ms. Gibbs contained a signature purporting to be Ms. Kepple s signature. 16. Respondent concedes he had no direct, expres s authority to sign the G ift Certification form on behalf of Ms. Kepple. Ms. Kepple confirmed that she did no t authorize R esponde nt to sign the Gift Certification form on her behalf and she had no intention of making a gift to Resp ondent. 17. The divorce proceeding between Respondent and Ms. Kepple was not amicable. According to Respondent, Ms. Kepple wou ld us e eve ry pos sible mea ns to caus e him diff icult y, including the filing of criminal charges. 18. Immedia tely above the Signature of Giver lines on the Gift Certif ication form is the follow ing stateme nt: I/we certify under pe nalty of perjury that a ll statements made herein are true and correct to the best of my/our knowledge, information, and belief. I/we further certify that no money or other valuable considerations is involved in this transfer. T his transfer is not being made contrary to Maryland Vehicle Laws. 19. In the absence of a legally effective Gift Certification form, the MVA would charge a 5% tax on the sales price of $2,700.00, or $135.00, and the vehicle would have to be inspected. There is no sales tax or inspection requirement for vehicles transferred pursuant to a validly executed Gift Certification form. Conclusions of Law Petitioner initially contends that Respondent violated Rules 8.4 (b), (c), and (d) by presenting a document with a forged signature to the MVA customer service represe ntative. Howeve r, after assessing Ms. Gibbs testimony on this issue, this Court cannot conclude by clear and convincing evidence that the Gift Certification form presented to Ms. Gibbs contained a signa ture pu rporting to be M s. Kepple s. Hence, the Respondent did not violate Rules 8.4 (b), (c), or (d) in this respect. -5- Howev er, Respondent violated Rules 8.4 (c) and (d) by attempting to transfer title using the Gift Certification form. The Tahoe was purchased at a public auction and therefore was clearly not a gift to R esponde nt from his former spouse. Although the financ ial incentive to use to Gift Ce rtification form was minimal, Respondent was neverthele ss attempting to avoid paying the 5% sales tax and having the vehicle inspected. The Court finds by clear and convinc ing evidence that Re spondent s presentation of the Gif t Certification form w as an attem pt to deceive the MVA by misrepresenting the true nature of the transfer of the Ta hoe. Such action con stitutes a violation of Rules 8.4 (c) and (d). Sim ilarly, the Court finds by clear and convincing evidence that Respo ndent did not have authority to sign the Gift Certification form on behalf of Ms. Kepple. Respondent s testimony that Ms. Kepple s divorce attorney gave him the authority to sign the Gift Certification form is simply not credible. Respondent and Mr. Kepple were involved in a rancorous divorce. It is improbable under these circumstances that Respondent was authorized to sign any docume nt on beha lf of Ms. Kepple in the Fall of 2004. Ms. Kepple, a member of the Maryland Bar, did not authorize Respondent to treat the transfer of the Tahoe as a gift. Respondent knew that the transfer was not as a result of a gift and the reasonable inference is that he did not attempt to obtain Ms. Kepple s signature or express authority to sign on her behalf because Respondent knew Ms. Kepple would not comply. Th is conduct, established by clear and convincing evidence, is also a violation of Rules 8.4 (c) and (d). See generally , Attorney Grievance Comm n v. Childress, 360 Md. 373, 384 (2000) (professional misconduct is not limited to con duct within the course of the attorney-client relationship). II. Findings of Fact Concerning Complaint of James Sebold 20. Sometime toward the latter part of 20 02, James Sebold requested Responden t to prepare a deed transferring certain real property to Ms. Sebold f rom his mother. 21. Respondent obtained a copy of the existing deed, prepared the new d eed, and m et with Mr. Sebold and his m other. -6- The deed was signed by Mr. Sebold s mother and by Respon dent, as the p erson wh o prepared the docum ent. 22. Respondent attached the executed deed to a p roperty intake sheet and presented it to the Garrett Co unty Assessm ents Office ( Assessments Office ) in accordance with his usual practice. Respondent testified that the normal practice was for a deed to be first presented to the Assessments Office, which would then be delivered b y the Assessm ents Office to the Land Records Office across the hall for recordation. 23. After recordation, Respondent would customarily receive the deed in his mail slot at the Court H ouse. However, at the time of this transaction, Respondent no longer had a mail slot as he was in the process of closing his law practice. He testified that he asked the Clerk in Land Records to mail the recorded deed to Mr. Se bold. 24. Respondent concedes that he did not follow u p to ensure that the deed h ad been re corded in th e Land R ecords of Garrett Cou nty. 25. The deed was never recorded in the Land Records of Gar rett C ounty. 26. Respondent did not maintain a copy of the deed. 27. The fee for service related to the Sebold transaction was $100.00 plus $25.00 recording costs. 28. The sum of $125.00 representing the legal fee and recording cost has been provided to Respondent s counsel to reimburse Mr. Sebold. Conclusions of Law Respondent violated R ule 1.3 wh ich provide s that [a] lawyer shall act with reasonable diligence and promptness in representing a client. In transactions involving the transfer of title to real property, the most important le gal act is recordation of the deed in the land records of the county where th e property is situatio n. M D. C ODE. A NN., R EAL P ROP. ยง 3-101 (a) (2006). Responden t s obligation to Mr. Sebold was to verify that the deed has been recorded in the La nd R ecor ds fo r Ga rrett Cou nty, Maryland. Cf. Attorney Grievance Comm n v. Cassidy, 362 Md. 689 (2001). The evidence is clear and convincing that Respondent failed to act with reasonable diligence in concluding this very simple legal transaction.6 -7- 6 Although there is no direct evidence concerning the method of payment of the recording costs, presuma bly Respondent would have issued a check from his trust account. In such event Respondent should have noted in due course that the check for recording had not been tendered for payment. DISCUSSION The hearing judge found violations of Maryland Rules of Professional Conduct 1.3, and 8.4 (c) and (d). Neither Petitioner nor Respondent took exce ption to the hearing judge s findings of fact or conclusions of law. Therefore, we accept the hearing court s findings of fact, as established, for the pur pose o f determ ining th e appro priate sa nction. Maryland R ule 16-759 (b)(2)(A ). Attorney Grievance Comm n v. Logan, 390 Md. 313, 319, 888 A.2d 359, 363 (2005). Respondent conceded, and we find, that the hearing court s findings of fact support the conclusions of law. The sole issue we confront is the sanction to be imposed. SANCTION In the case sub judice, Respondent was found to have violated Maryland Rules of Professional Conduct 1.3 an d 8.4 (c) and (d). With resp ect to the complaint of M r. Sebold, Respondent violated Maryland R ule of Professional Conduct 1.3, the ethical duty requiring him to act with reasonable diligence and promptness in representing Mr. Sebold, when Respondent failed to conclude what Judge Beachley called a very simple legal transaction by verifying that Mr. Sebold s deed had been properly recorded in the Garrett Co unty Land Records Office. Respondent asserts that a reprimand would be the appropriate sanction for -8- this viola tion. In a situation such as this, without any additional ethical violations, a sanction such as a public reprim and m ay be app ropriate . See, e.g., Attorney Grievan ce Comm n v. Lee, 390 Md. 517, 526-27, 890 A.2d 273, 278 (2006) (reprimanding attorney for first offense of failing to act with reasonable diligence and promptness in responding to and me eting with a client). See also Attorney Grievance Comm n v. Wa rd, 394 Md. 1, 39, 904 A.2d 477, 499500 (2006) (stating that a reprimand would be too lenient a sanction for multiple rules violations). When imposing sanctions in cases involving more than one complaint and multiple rules violations, how ever, we c onsider the infractions to gether to im pose a sing le sanctio n based upon th e facts a nd circu mstanc es of th e particu lar case . With respect to Bar Counsel s complaint, Respondent recommends that we impose a three mon th suspens ion for the v iolations of M aryland Rule of Professional C onduc t 8.4 (c) and (d). He argues that a three month suspension is appropriate because no client was injured and because the misconduct was an isolated incident. Additionally, Respondent asserts that he has complied w ith all of Bar Counse l s requests and at the time of the violations, he was a n inexperie nced attorn ey suffering e motional d istress as a result of his recent divorce. Petitioner recommends that Respondent be disbarred. Petitioner contends that the most important factors to consider when imposing disciplinary sanctions are the nature of the misconduct and the lawyer s motives. Petitioner argues that Respondent violated Maryland Rule of Professional Conduct 8.4 (c) by making two misrepresentations presenting the Gift -9- Certification Form to the MVA for a vehicle he purchased at auction and misrepresenting that he had his former w ife s authority to sig n the Gift C ertification Fo rm on he r behalf in an effort to avoid payment of a vehicle sales tax and inspection fee.7 In this case we shall impose the sanction of an indefinite suspension, encompassing the Rule 1.3 violatio n and th e Rule 8.4 (c) a nd (d) v iolation s. E.g. Attorney Grievance Comm n v. Mininsohn, 380 Md. 536 , 577, 846 A.2d 3 53, 377 (2004) (imposing single sanction of disbarment for multiple complaints against attorney involving multiple rules violations). See also Attorney G rievance Com m n v. Angst, 369 Md. 404, 420-21, 800 A.2d 747, 757 (2002 ). Among the highest duties of this Court is the protection of the legal profession, as we must uphold th e highest stan dards of p rofessiona l conduct . . . to protect the public from imposition by the unfit or unscrupulous practitioner. Attorney Grievance Comm n v. Guberman, 392 Md. 131, 136, 896 A.2d 337, 340 (2006), quoting Rheb v. Bar Ass n of Baltimore City, 186 Md. 200, 205, 46 A.2d 289 , 291 (1 946). See Attorney Grievance Comm n v. Sheridan, 357 Md. 1, 27, 741 A.2d 1143, 1157 (1999) ( Because an attorney s character must remain beyond reproach this Court has the duty, since attorneys ar e its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute. ), quoting Attorney Grievance Comm n v. Deutsch, 294 Md. 353, 368-69, 450 A.2d 1265, 1273 (1982) 7 Petitioner did not allude to Respondent s violation of Maryland Rule of Professional Conduct 8.4 (d) in his Recommendation for Sanction. -10- (emphas is in original). When imposing sanctions, we have enunciated that, [t]he public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent w ith whi ch they w ere com mitted. Attorney Grievance Comm n v. Gore , 380 M d. 455, 4 72, 845 A.2d 1 204, 12 13 (20 04). The appropriate sanction for violations of the Maryland Rules of Professional Conduct depends upon th e facts a nd circu mstanc es of ea ch case . Attorney Grievance Comm n v. Glenn, 341 Md. 448, 484, 671 A.2d 463, 480 (1996). Judge R aker, writing for this Co urt in Glenn, has suggested that the American Bar Association Standards for Imposing Lawyer Sanctions ( Standards ) provide s the appropriate framew ork for the determination of a sanction and can be accessed through asking: (1) What is the nature of the ethical duty violated? (2) What was the lawyer s mental state? (3) What was the extent of the actual or poten tial injury caused by the lawyer s m isconduc t? (4) Are there any aggravating or mitigating circumstances? Id. at 484, 671 A.2d at 480 (citing American Bar Association Standards for Imposing Lawyer Sanctions, Standa rd 3.0 at 300 (1 987)). See also Americ an Bar Association Lawyer s Manual on Profe ssional Co nduct 101.3001 (2003) (discussing similar analysis to characterize lawyer misconduct and determine the presumptive sanction before considering whether any aggravating or mitigating circumstances are present). We have defined mitigating factors, pursuant to the Standards, as including absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of -11- misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. Glenn, 341 Md. at 488-89, 671 A.2d at 483 (citing American Bar Association Standards for Impos ing La wyer Sa nctions , Standa rd 9.31 (1987 )). The first two factors included in the Standards, the nature of the ethical duty violated and the la wyer s sta te of mind, are freq uently considered simulta neous ly. See Attorney Grievance Comm n v. Calhoun, 391 Md. 532, 572, 894 A.2d 518, 542 (2006) ( It is not the finding of effective dishone sty, fraud or misappropriation, how ever, that is essential to our determination whether disbarment is the appropriate selection, but rather the attorney s intent. The gravity of misconduct is not measured solely by the number of rules broken but is determined largely by the lawyer s condu ct . ), quoting Attorney Grievance Comm n v. Culver, 371 Md. 241, 280-81, 808 A.2d 1251, 1260 (2002), quoting in turn Attorney Grievance Comm n v. Briscoe, 357 Md. 554, 568, 745 A.2d 1037, 1044 (2000). In the case sub judice, Respondent violated Maryland Rules of Professional Conduct 8.4 (c) and (d) by attempting to defraud the State of Maryland by avoiding the payment of the vehicle sales tax. As Judge Beachley found, Respondent submitte d the Gift Certification Form to the MVA under the penalties of perjury attempting to avoid paying the 5% sales tax and having the vehicle inspected. . . . Respondent s presentation of the Gift Certification Form was an attempt to deceive the MVA by misrepresenting the true nature of the transfer of the Tah oe. -12- Judge Beachley also found that Respo ndent kno wingly misrepresented his authority to sign the form on behalf of his former wife: Respondent conceded that he had no direct, express authority to sign the Gift Certification form on behalf of Ms. Ke pple. Ms . Kepple confirmed that she did not authorize Respondent to sign the Gift Certification form on her behalf and she had no inten tion of m aking a gift to R espon dent. Respondent has alleged that because there was no client involved in the Complaint of Bar Counsel, the ethical violation is lessened because the potential loss was to the governm ent, which w ould have collected no sales tax on the transfer of the automobile. Misconduct that affects the government, however, is equally as abhorrent as misconduct involving clients. As Judge Glenn Harrell aptly stated in Gore, supra, We see no significant moral distinction between willfully defrauding and cheating for personal gain a client, an individual, or the government. Cheating one s client and defrauding the government are reprehensible in equal degree . 380 Md. at 472, 845 A.2d at 1213, quoting Attorney Grievance Comm n v. Casalino, 335 Md. 446, 452, 644 A.2d 43, 45-46 (1994), quoting in turn Maryland State Bar Ass n v. Agnew, 271 Md. 543, 550, 318 A.2d 811, 815 (1974). In many of the cases in which the government has been the victim of a violation of Maryland Rules of Professional Conduct 8.4 (c) and (d), we have imposed either an indefinite su spension o r a disbarm ent. Indefinite suspensio n has bee n deeme d approp riate when the proof of a violation of Maryland Rules of Profes sional Conduct 8.4 (c ) and (d) has fallen short of proof of -13- fraudulent intent. In Attorney Grievance Comm ission v. Clark, 363 Md. 169, 767 A.2d 865 (2001), we indefinitely suspended an attorney fo r failing to pay employee taxes in violation of Maryland Rules of Professional Con duct 1.15 (b), and 8.4 (a), (b), (c), and (d) because we noted, significantly, that the attorney had never sought to comple tely avoid payment of the taxes and the re was never a finding that he p ossesse d a frau dulent in tent. Id. at 184-85, 767 A.2d at 873-74. Mo reover, in Attorney Grievance Commission v. Atkinston, 357 Md. 646, 745 A.2d 1086 (2000), we indefinitely suspended an a ttorney for kno wingly failing to file federal and state tax returns for eleven years in violation of Maryland Rules of Professional Conduct 8.4 (b), (c), and (d), because although the attorney s reason for not paying was not an excuse o r mitigating fa ctor, it perhaps negat[ed] a fraudulent intent. Id. at 657, 659, 745 A.2d at 1092 -93. See also Attorney Grievance Comm n v. Tayback, 378 Md. 578, 595, 837 A.2d 158, 168 (2003) (indefinitely suspending an attorney for his conviction for willfully failing to file his tax returns for three years in violation of Maryland Rules of Professional Cond uct 8.4 ( b), (c), an d (d), w ithout m aking a finding regard ing his in tent). We have ordered disbarment when the findings of fact supporting the violation of Maryland Rules of Professional Conduct 8.4 (c) and (d) reflected an intent to defraud the governm ent. In Casalino, supra, we considered the appropriate sanction for an attorney who violated Maryland Rules of Professional Conduct 8.4 (b), (c), and (d) after he had been convicted of willfully attempting to evade and defeat income tax due for three tax years. To determine the proper sanction, we stated that this Court has held repeatedly that willful tax evasion is a crime inf ested with f raud, dece it and dishon esty, and will resu lt in automatic -14- disbarment absent clear and convincing evidence of a compelling reason to the co ntrary. Casalino, 335 Md. at 452, 644 A.2d at 46. We concluded that the attorney presented no compelling circumstances mitigating his violations, and therefore, ordered the attorney to be disbarre d. Id. at 452- 53, 644 A.2d a t 46. In Mininsohn, supra, we disbarred an attorney for v iolating Maryland Rules of Professional Conduct 8.4 (a), (b), (c), and (d), among others, for misappropriating funds that he had collected on behalf of . . . the Comptroller. 380 Md. at 572, 846 A.2d at 374. Regarding the severity of his misconduct, we explained that Mininsohn s repeated f ailure to make the required emp loyee withholding tax payments exemplifies respondent s lack of honesty and proc livity for engaging in conduct prejud icial to the admin istration o f justice . Id. at 568, 846 A.2d at 372, quoting Angst, 369 M d. at 420 , 800 A .2d at 75 6. See also Agnew, 271 Md. at 551, 553, 318 A.2d at 815, 817 (disbarring attorney for filing fraudulent income tax returns, because tax evasion is a crime infested with fraud, deceit, and dishon esty, and w hen a me mber of th e bar is shown to be willfu lly dishonest for personal gain by means o f fraud, de ceit, cheating o r like condu ct, absent the m ost comp elling extenuating circumstan ces, . . . disbarment follow[s] as a m atter of course ). In Gore, supra, we pondered the appropriate sanction for an attorn ey who plea d guilty to willfully failing to file tax returns or pay sales tax for a pe riod excee ding thirty mon ths in connection with a restaurant he owned and operated, amounting to a tax due and owing of over $800,000, thereby violating Maryland Rules of Professional Conduct 8.4 (b), (c), and (d). We affirmed the hearing judge s findings that the attorney s actions were willful -15- because the attorney s decision to give the tax authorities checks that he either knew or should have known would be dishonored by the bank makes this more than a simple failureto-file case. Gore, 380 Md. at 473, 845 A.2d at 1214. We emphasized that, [w]hile the record does not in dicate that [the attorney] filed any fraudulent returns, his decision to issue bad checks reflects the same type of deceptive intent found in cases involving willful tax evasion. Id. We co nclude d that dis barme nt was the app ropriate sanctio n. Id. at 474, 845 A.2d at 1215. In the case sub judice, Respondent s conduct constituted an attempt to defraud the State of Maryland and the MVA to avoid payment of the sales tax; Judge Beachley found that Respon dent submitted the form u nder the pe nalties of pe rjury attempting to avoid paying the 5% sales tax and ha ving th e vehic le inspe cted. . . . Respondent s presentation of the Gift Certification Form was an attempt to deceive the MVA by misrepresenting the true nature of the transfer of the Ta hoe. Re sponden t presented th e Gift Ce rtification Fo rm to the MVA for a vehicle he purchased at auction, knowingly misrepresenting both the nature of the transaction and his authority to sign the form on behalf of his former wife. Judge Beachley also determined that Respondent knew that the transfer was not as a result of a gift and the reasona ble inference is that he did not attempt to obtain Ms. Kepple s signature or express authority to sign o n her beh alf becaus e Respo ndent kne w Ms . Kepple would not comp ly. Regardless of the relatively modest nature of the financial benefit that Respondent could have gain ed, his cond uct, intentiona lly deceitful and motivated by pecuniary inter est, -16- was egregious. We require honesty and integrity from attorneys, as we rem arked in Attorney Grievance Comm ission v. Wh ite, 354 Md. 346, 731 A.2d 44 7 (1999), because a lawyer s acts in denigration of those values reduces public confidence: [A] lawyer s act of dishonesty, fraud, or deceit might cause the public to lose conf idence in o ther lawyers an d the judicia l system as a who le. . . . [C] andor by a lawyer, in any ca paci ty, is one of the most important character traits of a member of the Bar. . . . The very integrity of the judicial system demands that the attorneys who practice in this state, who rep resent clients in the courts, and wh o interact in jud icial matters w ith the courts do so w ith abso lute hon esty and p ersona l integrity. Id. at 364, 367, 731 A.2d at 457, 459. Similarly, we explicated in Attorney Grievance Commission v. Vanderlinde, 364 M d. 376, 773 A.2d 46 3 (2001): Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such as a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, present in an attorney s character. Id. at 418, 7 73 A.2 d at 488 . See Attorney Grievance Comm n v. Pennington, 387 Md. 565, 596-97, 876 A.2d 642, 660 (200 5) (referring to the unpa ralleled impo rtance of h onesty in the practice of law ), quoting Angst, 369 Md. at 420, 800 A.2d at 757; Attorney Grievance Comm n v. Blum, 373 Md. 275, 304, 818 A.2d 219, 237 (2003) ( Honesty is of paramount importance in the practice of law. ). Given Judg e Beachley s findings in the present case, a three month suspension, as Respondent recommends, would not be appropriate because it would not be comm ensurate w ith the nature a nd gravity of th e violations a nd the inten t with which they were committed. Gore, 380 M d. at 472 , 845 A .2d at 12 13. -17- With respect to the third factor delineated by the American Bar Association Standards for Imposing Law yer Sanctions , the amou nt of actua l or potential inju ry is a factor to consider, but does not provide a defense to an ethical v iolation . Glenn, 341 Md. at 488, 671 A.2d at 483. Here, the Respondent withdrew the Gift Certification Form prior to it becoming the basis for a loss by the State of the transfer tax moneys, but he did, nevertheless, interact with employees at the MVA while he was cloaked in his deception. See Attorney Grievance Comm n v. Walman, 280 Md. 453, 464-65, 374 A.2d 354, 361 (1977) ( An attorney s willful failure to file income tax returns m ay serious impair public confiden ce in the entire profession. The need, therefore, to maintain public respect for the bar is a vital consideration in the imposition of disciplinary sanctions. The lawyer, after all, is intimately associated with administration of the law and should rightfully expected to set an example in observing the law. By willfully failing to file his tax returns, a lawyer appears to the public to be placing himself above [the] law. ). Therefore, his attempt to defraud the State of what was a relatively modest amount must be balanced against the injury to the public. The final factor recommended by the American Bar Association Standards for Imposing Lawyer Sanctions, whether there are any mitigating or aggravating circumstances, has been seized upon by Respondent as he posits that the ethical violations w ere not part of a pattern of m isconduct; that he doe s not have a prior disciplin ary record; that h e fully cooperated with the dis cipline process; that he was an inexperienced attorney; and that he was suffering emotional distress from a recent divorce. We note that these factors were not the subject of any findings by the hearing judge and Respondent did not except to the -18- findings. See Maryland Rule 16-757 (b) ( A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evid ence. ); Attorney Grievance Comm n v. Lee, 393 Md. 546, 56667, 903 A.2d 895, 907 -08 (2006 ) ( The he aring judge made no findings as to wheth er Respondent established by a prepo nderan ce of th e evide nce an y mitigatin g facto rs. . . . We acknowledge that Respondent may have faced health issues at certain times, but observe that Respondent has not established by a preponderance of the evidence his medical condition as a mitigating fac tor for h is misco nduct th rough out the p eriod o f time in questio n. . . . Respondent also failed to present any mitigating factors to this Court during oral argument. ). Nevertheless, we recognize that Respondent does not have a disciplinary record and his instant violations are not the result of a pattern of misconduct; the two violations occurred two years apart. In Mininsohn, supra, we noted: Mininsohn s conduct . . . demonstrates an extensive pattern of indifference, that . . . exemplifies . . . [a] lack of honesty and proclivity for eng aging in condu ct prejud icial to the admin istration o f justice . . . [such that] a pattern of misconduct also may serve as an aggravating factor, and determined that disbarment was the appropriate sanction. Id. at 573, 846 A.2d at 375, quoting Angst, 369 Md. at 419, 800 A.2d at 756 (remarking that the Comptroller also had to file a cumulative lien against the attorney, evidencing a pattern of delinquency ) (internal citations omitted). See also American B ar Association Standa rds for Imposing Lawyer Sanctions, Standard 9.22 at 49 (1991 ) (delineating a pattern of misconduct as an aggravating factor). Here, an -19- indefinite su spension is a more app ropriate sanction to impose because Respondent has no other disciplin ary record and his violations w ere not a pa ttern of misc onduct. IT IS SO ORDERED; RESPONDENT SH ALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRA NSC RIPTS, PURSUANT TO MAR YLAND RULE 16715(c), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION. -20- IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 69 September Term, 2005 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. BARRY E. SWEITZER Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Dissen ting Op inion b y Harrell, J ., which Greene, J., joins. Filed: November 20, 2006 I do not qu arrel with the Majority s starting (and end ing) point that an indef inite suspension is appro priate he re. My departure f rom that co nclusion is th at I would qualify it with a right to reapply no sooner than ninety days. I agree that Sweitzer s intent in the matter of the complaint of Bar Counsel is indistinguish able from that of the cases mentioned in the Majority opinion at slip op. 14-18. Yet, where each attorney in those cases received significant monetary gain or benefit from his or her c onsum mated miscon duct, S weitzer s condu ct not only fell sh ort of his actu ally receiving a moneta ry benefit from his misguid ed efforts, i.e., h is was an u nconsum mated attempt withdrawn at the last moment by his own hand, the potential gain from the attempt was exceedingly modest ($135) compared to the facts of the open-e nded inde finite susp ension cases discusse d by th e Majority. One may dispute w hether an o pen-end ed indefinite suspension is a lesser sanction than one qualified with a right to reapply no sooner than a minimum period of time. Under the forme r, a respondent may seek and be granted readmission theoretically at any time after the effective date of the suspension. That notwithstanding, I am of the view that such an open-ended indefinite su spension can, in practice, b e more on erous than a minimu m sit-out time indefinite suspension because at least the latter offers some clue to a respondent when the Court deem s it most li kely app ropriate to reapp ly with so me ho pe for s uccess . The openended ve rsion leaves a respond ent usually and complete ly in the dark as to when it is most propitious to reapply, and fosters potentially multiple frustrating attempts at seeking readmission until the Court, in its infinite wisdom, gran ts one (if ever). While there certainly are cases tha t merit that app roach, this is no t one of the m, in my judg ment. Judge G reene auth orizes me to state that he join s this dissent. -2-
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