Attorney Grievance v. Guberman

Annotate this Case

Download PDF

IN THE COURT OF APPEALS OF MARYLAND Misc. Docket (Subtitle AG) No. 73 September Term, 2004 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. MARK S. GUBERMAN Bell, C.J. Wilner Cathell Harrell Battaglia Greene, Eldr idge , Joh n C. ( Reti red, S peci ally Assigned) JJ. Opinio n by Bell, C .J. __________________________________________ Filed: April 13, 2006 Bar Counsel, acting with the approval and at the direction of the Attorney Grievance Commission of M aryland, th e petition er, see Maryland Rule 16-751,1 filed a Petition For 1 Md. Rule 16-751 (a) provides: (a) Commencement of Disciplinary or Remedial Action. (1) Upon Approval of Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. (2) Conviction of Crime; reciprocal Action. If authorized by Rule 16771(b) or 16-773(b), Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals without prior approval of the Commission. Bar Counsel promptly shall notify the Commission of the filing. The Commission on review may direct the withdrawal of a petition that was filed pursuant to this subsection. Bar Co unsel prev iously had filed a Statem ent of Ch arges aga inst the respo ndent. Adopted November 30, 2000, effective July 1, 2001, Maryland Rule 16-741 governs the filing of statements of charges. It provides: (a) Filing of Statement of Charges. (1) Upo n comple tion of an in vestigation, B ar Coun sel shall file with the Commission a Statement of Charges if Bar Counse l determines that: (A) the attorney either engaged in conduct constituting p rofessiona l miscondu ct or is incapacitated; (B) the professional misconduct or the incapacity doe s not warra nt an imm ediate Petition for Disciplinary or Remedial Action; (C) a Co nditional D iversion A greemen t is either not appropriate under the circumstances or the parties were unable to agree on one; and (D) a reprimand is either not appropriate under the circumstances or (i) one was offered and rejected by the attorney, or (ii) a proposed reprimand was disapproved by the Commission and Bar Counsel was directed to file a Statem ent of C harges . The fi ling of th e statem ent of c harges trigger ed the p eer revi ew pro cess, see Maryland Rules 16-741(b), 16-742, and 16-743, which was completed prior to the filing of the Petition for Disciplinary or Remedial Action. Disciplinary or Remedial Action against Mark S. Gube rman, the re sponden t, charging h im with violating R ule 8.4 (c) an d (d) (Mis conduct) 2 of the Maryland Rules of Professional Condu ct, as adopted by Maryland Rule 16-812. We referred the case for hearing, pursuant to Rule 16-752,3 to the Honorable D eLawrence Beard of the Circuit Court fo r Montgom ery County. The respondent answered the Petition, after which the matter was set for hearing. Followin g the hearin g, the hearin g court, pursuant to Rule 16 -757 (c), 4 found the following facts to hav e been pro ven by clear a nd conv incing evid ence: The Respondent ... graduated f rom Ge orge W ashington University La w Scho ol in 2 Rule 8.4 (c) and (d) provides that [i]t is professional misconduct for a lawyer to: ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation [and] engage in conduct that is prejudicial to the administration of justice. 3 Rule 16-7 52 provid es, as relevan t: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation sh all require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. 4 Rule 16-757 (c) provides: (c) Findings and conclusions. The judge sha ll prepare an d file or dictate into the record a statement of the judge's findings of fact, includin g findings as to any evidence regarding remedial action, and conclusions of law. If dictated into the record, the statement shall be promptly trans cribed. Un less the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hea ring. The c lerk shall mail a copy of the statement to each party. 2 1995. He was admitted to the Bars of the District of Columbia and Pennsylvania. In 2001, Mr. Guberman was admitted to the Bar of the Court of Appeals of Maryland. Respondent was an employee of the Law Firm of Shulman, Rogers, Gandal, Pordy and Ecker, P.A. from September 12, 2000 to July 30, 2004. He worked in the firm s office in Rockville, Maryland, han dling civil litigation. Ross D. Coop er, Esquire, supervised M r. Guberman s work. The Shulma n, Rogers firm repres ented Stev en Reigh ard in two rel ated m atters. The first matter was filed in federal court in Virginia and resulted in a substantial recovery for Mr. Reighard. The second case was filed in the Circuit C ourt for Fairfax County, Virginia. That case alleged that the defendants had prepared a false and defamatory report, justifying Mr. Reighard s former employer to discharge him for ca use. As a re sult, Mr. Reighard was deprived of a life insurance policy. Mr. Guberman was responsible for handling Mr. Reighard s case. An associate of the firm, Matthew Moore, Esquire, who was admitted to the Virginia Bar, was co-counsel and reviewed papers and pleadings prepared by Mr. Guberman regarding Mr. Reighard s case. The Circuit Court for Fairfax County granted summary judgment in favor of the defenda nts in June 2003, dismissing Mr. Reighard s complaint. Mr. Re ighard advised M r. Guberman that he did not w ant to appe al the case b ecause he did not w ant to incur additional fees and ex penses . Mr. Guberman discussed the matter with Mr. Cooper and Mr. Moore. Mr. Cooper instructed M r. Guberman to tell M r. Reighard that the firm would modify the fee arrangement if he pursu ed an app eal. Mr. G uberman did not con vey that offer to Mr. 3 Reighard. When Mr. Cooper later asked him about the status of the case, Mr. Guberman said he had filed a Notice of Appeal in the Circuit Court. In S eptembe r 2003, M r. Guberm an told Mr. Cooper that he had filed a Petition For Appeal in the Supreme Court of Virginia. Mr. Guberman placed co pies of thes e pleading s in the firm s file. Both co pies bore what appeared to be file stamps indicating that the Clerk had received and filed the pleadings. Mr. Guberman submitted monthly status reports to the firms. The status report dated December 22, 2003 reported that he was awaiting court s ruling on petition for appeal... . Mr. Cooper made further inquiries about the status of the appeal in early 2004. Around the end of May 2004, at the request of Mr. Cooper, M r. Co oper s as sista nt, Je ssica Stite ly, watched Mr. Guberman call the court to check on the status of the case. Ms. Stitely was informed that the case was still pending. In July 2004 , Mr. Coo per made inquiries w ith the Virgin ia courts and learned that the appeal had never been filed and that the filing receipt stamps were not genuine. When confronted by Mr. C ooper, M r. Gub erman ackno wledg ed that h e neve r filed th e appe al. The firm terminated Mr. Guberman s employment on July 30, 2004. Mr. Reighard never authorized Mr. Gu berman to file an app eal. He nev er was told by Mr. G uberm an that a n appe al had b een file d. From the foregoing facts, which it found, as indicated, by clear and convincing evidence, Attorney Griev. Comm n v. Culver, 381 Md. 241, 265-266, 849 A.2d 423, 438 4 (2004), Rule 16-75 7 (b), 5 the hearing court drew conclusions of law, as follows: Mr. Guberman engaged in conduct involving dishonesty and misreprese ntation in violation of Rule 8.4 (c) of the Maryland Rules of Professional Respon sibility by falsely represen ting to Mr. Cooper and other representatives of the Shulman, Rogers firm that he had filed an appeal in Mr. Reighard s case. He engaged in conduct prejudicial to the administration of justice by creating falsified filing stamp s on pape rs, falsely certifying that the papers had been filed in c ourt. Neither the petitioner nor the respondent, who neither appeared nor participated in the proceedings in this Court, took exceptions to the hearing court s findings of fact or conclusions of law. The petitioner did file Petitioner s Recommendation For Sanction, in which it urged the responde nt s disbarm ent. Emphasizing the hearing court s conclusion, based on its findings that the respondent prepared fictitious appellate pleadings, which he supported and certified as true by oral and wr itten status repo rts, that the respo ndent, in violation of Rules 8.4 (c) and (d), engaged in dishone st conduc t and cond uct prejudic ial to the administration of justice, it relies on Attorney Griev. Comm n v. Pennington, 387 Md. 565, 876 A.2 d 642 (20 05); Attorney Griev. Comm n v. Lane, 367 Md. 633, 790 A.2d 621 (2002) and Attorney Griev. Comm n v. Vanderlinde, 364 Md. 376 , 773 A.2d 463 (2001). 5 Maryland R ule 16-75 7(b) provid es: The petitioner has the burden of proving the averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter b y a prepo nderan ce of th e evide nce. 5 It is well settled th at it is the respon sibility, indeed, the du ty, of this Court to uphold the highest standards of pro fessional conduct and to protect the public from imposition by the unfit or unscrupulous practitioner. Rhe b v. B ar A ss'n of Baltimore, 186 Md. 200, 205, 46 A.2d 289, 291 ( 1 946). See Vanderlinde, 364 M d. at 387, 77 3 A.2d a t 469; Attorney Griev. Comm'n of Maryland v. Post, 350 Md. 85, 96, 710 A.2d 935, 940 (199 8); Attorney Griev. Comm'n of Maryland v. Protokowicz, 326 M d. 714, 716 , 607 A.2d 33, 34 (19 92); Maryland State Bar Ass'n, Inc. v. Agnew, 271 Md. 54 3, 549, 318 A.2d 811, 814 (1974 ); Fellner v. Ba r Ass'n, 213 Md. 243, 247, 131 A.2d 72 9, 731 (1957); Braverm an v. Bar Ass 'n of Balto., 209 Md. 328, 343-345, 121 A.2d 47 3, 480-48 1 (1956); Klupt v. Bar Ass'n of Balto. City, 197 Md. 659, 664, 80 A.2d 912, 914 (1951 ) In re Meyerson, 190 Md. 671, 676, 59 A.2d 489, 490 (1948). In discharging that duty, [t]he question is whether, after the conduct of this man [or w oman], it is proper that he [or she] should continue a member of a profession which should stand f ree from all suspi cion.... It is not by way of punishment; but the courts, on such cases, exercise their discretion w hether a man [or woman] whom they have fo rmerly admitted is a proper person to be continued on the roll or not. Rheb, 186 Md. at 205, 46 A.2d at 291, quoting Ex parte Brounshall, 2 Cow p. 829 (177 8). More over, it likew ise is well settled that the c ourts have the power and duty to consider the particular conduct of one who is an officer of the court, in relation to the privileges and duties of a public calling that specially invites complete trust and confidence. Attorney G riev. Com m n v. D eMaio , 379 Md. 57 1, 581-82 , 842 A.2d 802, 808 (2004); Rheb, 186 M d. at 204 , 46 A.2 d at 291 . 6 Con sequ ently, in protection of the public, the purpose of attorney discipline, see Attorney Griev. Comm n v. Steinberg, 385 Md. 696, 703, 870 A.2d 603, 607 (2005 ); Attorney Griev. Comm'n v. Sperling, 380 Md. 180, 191, 844 A.2d 39 7, 404 (20 04); Attorney Griev. Comm n v. Ayres-F ountain, 379 Md. 44, 58 , 838 A.2d 123 8, 1246 (2003); Attorney Griev. Comm n v. Myers, 333 Md. 440, 446, 635 A.2d 1315, 1318 (1994), we have held that disbarment follows a s a matter of course w hen a me mber of th e bar is show n to be w illfully dishonest for personal gain by means of fraud, deceit, cheating or like conduct, absent the most compelling extenuating circumstances ... Agnew, 271 Md. at 553-54, 318 A.2d at 817. To do otherwise, we concluded, would constitute a travesty of our responsibility. Id. And, because [c]and or and truthfulness are two of the most important moral cha racter traits of a lawyer, see Attorney Griev. Com m n v. Myers, 333 Md. at 449, 635 A.2d at 1319 (1994); Attorney Griev. Comm 'n v. Levitt, 286 Md. 231, 238, 406 A.2d 1296, 12 99 (1979); Fellner, 213 M d. at 247, 13 1 A.2d a t 732; In re Meyerson, 190 M d. at 687 , 59 A.2d 496, deliberate and systematic conduct amounting at least to frau d or deceit has resulted in the imposition of the u ltimate sa nction o f disba rment. Fellner, 213 Md. at 247, 131 A. 2d at 731732.6 So, too, have the failure to keep records, where that failure justified a finding of an intent to cheat, cou pled with p articipation in a fraudulent stock scheme and to a breach of a confidential relation ship. Rheb, 186 Md. at 209, 46 A.2d at 293. 6 We have also ordered In Fellner v . Bar Ass'n, 213 Md. 243, 247, 131 A.2d 729, 732 (1957), the reprehens ible conduct was the use of slugs in the parking m eters in the C ity of Balt imore, a practice that the C ourt co nclude d was neither casual n or thou ghtless. 7 disbarment where an attorney, previously suspended for making misrepresentations, misrepresented his driving re cord durin g a traffic co urt trial at which he was c harged w ith speedi ng. Myers, 333 M d. at 449 , 635 A .2d at 13 19. The more recent cases, upon which the petitioner relies, are consistent and support the petitioner s position. In Pennington, having missed the filing deadline imposed by the statute of limitations, the respondent in that case, in lieu of informing the client of her dereliction, made m isrepresenta tion[s] and engaged in deceitfu l conduct to concea l that, and how, she had mishandled the clients claims: falsifying a supposed settlement of those claims with th e insure r, intentionally misrep resenting m atters in nego tiations with th ird-party health care providers to reduce their charges to the Butlers, and concealing from the Butlers the facts that might have supported lodging a professional negligence claim against respon dent, 387 Md. at 596, 876 A.2d 660, and producing a fictitious statement of settleme nt, pursuant to which she paid the client with her own funds. 387 Md. at 591, 876 A. 2d at 658. In ordering d isbarment, this Court noted that the attorney s misrepresentations and the manufacture of false and fraudulent documents implicate the core responsibilities of truth and honesty expected of attorneys. Id. at 596, 876 A. 2d at 660. We also observed: Responden t s attempt to purchase a plenary indulgence with her own money is more indicative of a selfish plan to conceal than of a praiseworthy desire to make the client whole. Whether respondent acted to prevent her clients from knowing that they had a potential malpractice claim against her, or whether she acted out of a desire to spare her ill client further a nguish, the p rofession is harmed when an attorn ey intentionally misrepresents matters to a client and behav es in the mann er as did respon dent. 8 Id. at 597- 98, 876 A.2d a t 661. The attorney in Lane misreprese nted on nu merous o ccasions to two clients the status of their cases, falsely advising one of them that she had recovered a large judgment, the recovery of which was being held up by the appea l of the d efend ant. Like in Pennington, he paid one of the clients supposed damages fr om his ow n funds a nd, to mak e his representations credible to the client, paid sums she alleged ly owed to the defendant against whom he was expected to pursue a remedy on the client s behalf. In ordering the attorney s disbarme nt, we emphasized his repeated material misreprese ntations that constitute a pattern of deceitful co nduct, as opposed to an isolated instance. 367 Md. at 647, 790 A. 2d at 629. We also commented: Respondent engaged in a pattern of continued deceitful misrepresentations of the most egregious nature, to the extent that his conduct amounted to intentional dish onesty. He has not provided any mitigation for his pattern of misrepresentations. Respondent failed to diligently act on his clients' behalf and he then com pounde d this failure by engaging in a pattern of deceitful and lying condu ct desig ned to c oncea l his lack of dilige nce. Id. See also Vanderlinde, 364 Md. at 418, 773 A. 2d at 488, in which we opined: Unlike matters relating to com petenc y, diligenc e and th e like, intentional dishonest conduct is c losely entwine d with the m ost importan t matters of b asic character to such 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 charac ter. We ado pt the petitione r s recomm endation; th e approp riate sanction is disbarme nt. 9 IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST MARK S. GUBERMAN . 10

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.