Attorney Grievance v. Adams
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Attorney Grievance Commission of Maryland v. Lester A.D. Adams Misc. Docket AG No. 65, September Term, 2006 Headnote: The attorney representing a litigant in proceedings against a reinstated attorney does not h ave standin g to move to vacate th e ord er reinsta ting that a ttorn ey. Under Maryland Rule 16-781 (m), only Bar Counsel has such standing, as part of Bar Counsel s critical role in this C ourt s regula tion of the leg al professio n - that of investigating complaints against attorneys and determining whether disciplinary action is warranted. As such, the proper avenue for the litigant s attorney to air concerns about the attorney s rein statement is th rough co ntact with B ar Coun sel. IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 65 September Term, 2006 Attorney Grievance Commission of Maryland v. Lester A.D. Adams Bell, C. J. Raker Harrell Battaglia Greene Wilner, Alan M.(Retired, specially assigned) Cathell, Dale R. (Retired, specially assigned), JJ. Opinion by Bell, C. J. Filed: March 20, 2008 By order dated August 6, 1998, this Court g ranted the Jo int Petition fo r Indefinite Suspension by Consen t filed by the A ttorney Grieva nce Com mission, the p etitioner, and Lester A. D. Adams, the respondent, thus suspending the respondent from the practice of law inde finit ely, but with the right to apply for reinstatement after one year. The conduct which precipitated the suspen sion involv ed the ma nageme nt of the respondent s attorney trust account. More particularly, in that regard, the Pe tition alleged th at the respon dent, by his conduct, violated sections (a) and (b) of Rule 1.15 of the Maryland Rules of Professional Condu ct, as adopted by Maryland Rule 16-812, and M aryland Rule 16-607 (a). O n January 25, 2007, more than 8 years after he was suspended, the respondent sought reinstatement to the practice of law, filing Respondent Lester A.D. Adams Verified Petition for Reinstatement to the Practice of Law. In his reinstatement petition, he averred that he ha[d] provided to Bar Counsel all the information required under M d. Rule 16-781 (d ) (1). In addition, he submitted: ... Respondent has satisfied all conditions for reinstatement pursuant to the Court s order dated August 6, 1998. The conduct at issue happened over eight years ago. There is absolutely no indicatio n that this will b e a problem for him again. Respondent has always demonstrated his competence and professionalism as a lawyer, and, if reinstated, intends to resume his practice of law at the sam e high le vel. Responding to the Petition, Bar Counsel was essentially neutral, neither recommending reinstate ment n or opp osing th at relief. Instead, pointing out that there were outstanding student loans of more than $32,000.00 and that the Court s order required monitoring, both by Bar Counsel and by an attorney/CPA retained and paid by the responde nt, he stated his belief that the Court must make its ow n decision c oncerning this Petition for R einstatemen t. Significan tly, Bar Coun sel advised the Court: Still pending is litigation in the United States District Court for the District of Maryland w ith trial set for July 10, 2007. The Petitioner advises that he anticipates the parties will be able to settle the matter without a trial. It involves a claim by the P etitioner again st a Christopher A. Brooks and a counter claim by Mr. Brooks against the Petitioner involving investment in a piece o f prop erty in Hyatt sville, M aryland. On this record, this Court, a majority concurring, on April 11, 2007, granted the respondent s petition and reinstated him to the practice of law. Consisten t with our August 6, 1998 order suspending the respondent, the order of reinstatement was made conditional on the responden t s fulfillment of the conditions en umerated in that order. 1 1 Specifically, the reinstatement was conditioned on: 1. Petitioner[ s] ... participat[ion]in twelve (12) hours of continuing legal education in the first three (3) years after rein statement; 2. Petitioner[ s] engaging at his expense a monitor acceptable to Bar Counsel who will oversee both his practice of law and his accounting of funds for a period of two (2) years with monthly reports for one (1) year and quarterly reports thereafter to Bar Counsel; and 3. Petitioner in the first year after reinstatement ... attend[ing] the Maryland State Bar Association Workers Compensation Evening Series; and in the second year ... attend[ing] the Maryland State Bar Association and Prince George s County Bar Association CLE offerings in Criminal Law, Fa mily Law, Im migration L aw, Con sumer B ankruptcy L aw and solo and small firm practice and litigation as well as any of those he could not attend in year two on the th ird year.... Maryland Rule 16 -781 (j) permits the Cou rt to place conditions on a pe titioner s reinstateme nt: (j) Conditions of Reinstatement. An order that reinstates a petitioner may require that th e petitioner fu lfill, either as a con dition prece dent to reinstatement or a condition of probation after reinstatement, one or more of the provisions set forth in Rule 16-760 (h) and one or more of the following requirements: (1) take the oath of attorneys required by Code, Business Occu pations and Pr ofessio ns Artic le, ยง 10-212; 2 Subsequently, a little more than a month later, Jonathan A. Azrael, counsel for Christopher A. Brooks, a party to litigation, involving the respondent, pending in the United States District Cou rt for the D istrict of Ma ryland, which Bar Co unsel refere nced in responding to the respondent s petition for reinstatement, the movant, filed a Motion To Strike Order Granting Reinstatement, in which, in addition to seeking to strike the order reinstating the respon dent, soug ht further pro ceedings under Maryland Rule 16-781 (i). 2 The movant, with respect to that litigation, complained, (2) attend a bar review course approved by Bar Counsel and submit to Bar Counsel satisfactory evidence of attendance; (3) successfully complete a professional ethics course at an accredited la w schoo l; (4) atten d the prof essio nalis m co urse requ ired for n ewlyadmitted attorneys; (5) pass either the regular comprehensive Maryland bar examination or an attorney examination administered by the Board of Law Examiners; and (6) pay all costs assessed in accordance with section (o) of this Ru le. 2 Ordering further proceedings is among the dispositions Maryland Rule 16-781 (h) makes available to this Court when it reviews a petition for reinstatement and Bar Counsel's response, the others being dismissal without a hearing, or reinstatement. When further proceedings are ordered the Cou rt shall enter an order desig nating a jud ge in acco rdance w ith Rule 16- 752 to hold a hearing. The judge shall allow reasonable time for Bar Counsel to investigate the petition and, subject to Rule 16-756, take depositions and complete discovery. The applicable provisions of Rule 16757 shall govern the hearing, including the requirement that the petitioner shall have the burden of proving the averments of the petition by clear and convin cing ev idence . Rule 1 6-781 (i). 3 Although this litigation is mentioned in the Response to Petition for Reinstatement filed by Bar Counsel ..., Bar Counsel did not commu nicate with Christopher A. Brooks or his attorney regarding the allegations [of] D r. Brooks Counterclaim in this Civil Action. Nor did Bar Counsel seek to verify with Dr. Brooks o r his attorney whe ther they agree th at the parties w ill be able to settle th e matte rs witho ut a trial. Having attached the counterclaim he filed against the respon dent, the letter h is client wrote to Bar Counsel complaining about the respondent s conduct and noting Bar Counse l s response, assuring him that he would retain a record of your complaint for possible further review if and when Mr. Adams petitions for reinstatement to the Maryland, the movant asserts that further p roceeding s would g ive his client the opportunity to testify and afford the hearing court the opportunity to consider, in light of that testimony and docu mentary evidence, whether the respondent has engaged in any other professional misconduct[3] since the imposition of discipline. He concluded: Your movant wishes to make clear that he does not necessarily take a position as to whether [the respondent] should or should not be reinstated as a member of good standing of the Bar of Marylan d. However, your movant does contend that based on the Complaint of Dr. Brooks alone (which the Attorney Grievance Commission a pparently ignored and nev er investigated) that a more thorough and cons idered inve stigation of [the respondent] s Petition for Reinst atemen t is requir ed. Bar Counsel filed an answer to the motio n to strike this Court s order reinstating the 3 The acts of misco nduct that the mova nt submits the hearing co urt and this Court may consider, in that regard, includes, among others, whether the respondent forged the movant s name to le gal docum ents in conn ection with real property in H yattsville Maryland, including a deed to that property and, having done so, notarized the forged signature, thereby making a false oath that he... had seen [the movant] acknowledge the Deed of Trust. 4 respondent. Agreeing that its answer to the respondent s petition for reinstatement referenced the litigation between the respondent and the movant pending in the federal court, but concedin g that it did no t specifically refer ence the co mplaint that th e movan t filed with the Commission subsequent to the respondent s suspension, he joined in the movant s request that a hearing concerning whether the Order granting reinstatement should be revoked be held after the trial pe nding in the federal court has taken place, when there will be testimony by [the respondent] and [the movant] under oath ... which may have some bearing on the resolutio n of the motion . Having considered the motion to strike reinstatement and Bar Counsel s response, we set the matter in for a show cause hearing.4 In response to the Order to Show cause, the respondent filed Answer of Lester A.D. Adams To M otion to Strike Order G ranting Reins tatement. In that pleading, he conceded Bar Counsel s right and authority to seek the striking of an order reinstating a suspended attor ney, but maintained that opp osing c ounse l in ong oing litig ation ha s no suc h right. 4 Although the show cause hearing was scheduled for September 6, 2007, after the scheduled trial in the federal court, which was set for July 10-12, 2007, that date was not conditioned on that trial having been completed. As a matter of fact, the movant/respondent s litigation did proceed as scheduled and some of the issues pertinent to these proceedings were resolved. The respondent acknowledges that, although he disagrees with her, the trial judge ruled against him with regard to the issues the movant has raised as the basis for his motion to strike the respondent s reinstatement. For example , the trial judge d etermined that the respo ndent fo rged, the m ovant s na me to legal do cume nts, inclu ding a d eed of trust for real pro perty in H yattsville M aryland. Because other issues re main unre solved, ho wever, the re has been no final jud gment in that case, so that the respondent has not, indeed, could not, challenge any of the unfav orable f inding s on ap peal. 5 Specifically, he argued: Rule 16-781 (m) provid es that Bar Counsel may file such a motion for reasons stated in the Rule. The Rule does not give standing to members of the public or attorneys to file motions directly with this C ourt, and cle arly contemplates a motion being filed only by Bar Counsel, with the information source s and in vestiga tive cap acity of th at offic e. Alte rnatively, the respondent denies that the movant has presented a basis for the relief sought. Noting that the grounds for striking reinstatement include failure to comply with the order of reinstatement or knowingly making a false statement or material omission in the Petition for Reinstatement, he submits that neither ground applies in his case, explaining: Mr. Adams has been involved in bitter litigation with the man who used to be his closest friend, over a transaction that took place eight years ago. Certainl y, recollections differ, but Mr. Adams can do no more than say that he has told the truth about that transaction. Mr Adams is sorely disappointed that Judge Chasan ow has d ecided ag ainst him, and found his testimony not to be credible. Clearly Dr. Brooks was more pers uasive, and unless the c ase is overturned will reap a substantial benefit from a transaction which he claims Mr. A dams w as unau thorized to enter i n his na me. Fina lly, the respondent expressed the belief that further proceedings were not necessary and the further belief and hope that Bar Counsel will conclude that there is no basis to f ile a M otion to Vaca te, as he is author ized to d o unde r the Ru le. Maryland Rule 16-781 governs petitions for reinstatement to the practice of law. Section (a)5 of that Rule requ ires the disbar red or susp ended law yer to file, with the Court, 5 (a) Petition. A petition for reinstatement to the practice of law shall be filed in the Court of Appeals. It shall be verified and include docket references to all prior disciplinary or remedial actions to which the petitioner was a party. A copy of the order that disbarred or suspended the petitioner from the practice of law, placed the petitioner on inactive status, or acce pted the pe titioner's resignatio n shall be attac hed, togeth er with 6 a verified pe tition, sufficien tly documented and annotated as to show that the petitioner has complied with Rule 16-760, met the terms and conditions of the applicable disciplinary or remedial order, has the character, qualifications and competence to practice law, and satisfies, or has the ability to satisfy, Rule 16-781 (g). 6 any opinion of the Court that accompanied the order. The petition shall certify that the petitioner has complied in all respects with the provisions of Rule 16-760 and with the terms and conditions of the disciplinary or remedial order. Except as provided in section (e) of this Rule, the petition shall allege facts describing the petitioner's original misconduct, subsequent conduct and reformation, present character, present qualifications and competence to practice law, and ability to satisfy the criteria specified in section (g) of this Rule. 6 Maryland Rule 16-781 (g) provides: Criteria For Reinstatement. The Court of A ppeals shall consider the natu re and circu msta nces of th e pet ition er's o rigin al co nduct, the pet ition er's subsequent conduct and reformation, the petitioner's current character, and the petitioner's current qualifications and competence to practice law. The Court may order reinstatement if the petitioner meets each of the following criteria or presents sufficient reasons why the petitioner should nonetheless be reinstated: (1) The petitioner has complied in all respects with the provisions of Rule 16-760 and with the terms and conditions of prior disciplinary or remedial orders; (2) The p etitioner has n ot engage d or attemp ted or offe red to engage in the unauthorized practice of law and has not engaged in any other professional misconduct during the period of suspension, disbarment, or inactive status; (3) If the petitioner was placed on inactive status, the incapacity or infirmity (including alcohol or drug abuse) does not now exist and is not reasonably likely to recur in the future; (4) If the petitioner was disbarred or suspended, the petitioner recognizes the wrongfulness and seriousness of the professional misconduct for which discipline was imposed; (5) The petitioner has not engaged in any other professional misconduct since the imposition of discipline; 7 In addition to serving the petition for reinstatement on Bar Counsel and such other persons as the Court, on the reque st of Bar Coun sel, may designate, Rule 16-78 1 (c),7 the petitioner, who has been disbarred or suspended from the practice of law for at least six (6) months, is re quired to pr ovide Ba r Counse l with information that is, or may be , relevant to that petitioner s character and fitness to practice law, and that will facilitate an investigation focused on determining whether that petitioner s present cha racter and f itness merit reinstateme nt, Rule 16-781 (d ),8 after which Bar Counsel shall respond to the petition, either (6) The petitioner currently has the requisite honesty and integrity to practice law; (7) The petitioner has kept informed about recent developments in the law and is competent to practice law; and (8) The petitioner has paid all sums previously assessed by the ord er of the Court o f App eals. 7 (c) Service. The petition shall be served upon Bar Counsel pursuant to Rule 2121 and upon any other person designated by order of the Court of Appeals on request of Bar Co unsel. 8 Rule 16-781 (d) (1) provides: (1) Petitioner Disbarred or Suspended Indefinitely or for More Than Six Months. A petitioner who has been disbarred or suspended indefinitely or for more than six months shall provide the following information to Bar Counsel at the time of filing the petition: (A) the petitioner's current address an d telephone num ber; (B) the address of each residence during the period of discipline, with inclusive dates of each residence; (C) doc umentary ev idence sup porting the p etitioner's claim that the criteria specified in section (g) have been satisfied; (D) the name, address, and telephone number of each employer, associate, and partner of the petitioner during the period of discipline, with the inclusive dates of each 8 admitting or denying the averments and, in his discretion, offering a recommend ation, employment, association, and partnership, the positions held, the names of all supervisors, and, if applicable, reasons for terminating the employment, association, or partnership; (E) the case caption, general nature, and disposition of each civil and criminal action pending during the period of discipline to which the petitioner was a party or in which the petitioner claim ed an intere st; (F) a statement of monthly earnings and all other income during the period of discipline, including the source; (G) a statement of the petitioner's assets and financial obligations; (H) the names and addresses of all creditors; (I) a statement that any required restitution has been made and the amounts paid; (J) a statement indicating whether the petitioner has applied for reinstatement in any other jurisdiction and the present status of each application; (K) a statement identifying all other business or occupational licenses or certificates applied for during the period of discipline and the current status of each application; (L) the name and address of each financial institution at which the petitioner maintained or was signatory on any account, safe deposit box, deposit, or loan during the period of discipline; (M) written authorization for Bar Counsel to secure financial records pe rtaining to an y account, saf e deposit bo x, deposit, or loan at any financial institution identified in subsection (d)(1)(L) of this Rule; (N) copies of the petitioner's state and federal income tax returns for the three years preceding the effective date of discipline and each year thereafter; and (O) any oth er informa tion that the pe titioner believe s is relevant to determining whether the petitioner possesses the charac ter and f itness ne cessary f or reinst atemen t. 9 supported by reasons, as to the d isposition of the petition. Rule 16-7 81 (f). 9 After a review of the pleadings and the record, the Court has the discretion to order a dismissal without a hearing, order the petitioner reinstated, or order further proceedings. Maryland Rule 16-781 (h). Ordering a petitioner reinstated is not without recourse. Rule 16-781 (m) provides a mechanism for vacating any such order. It provides: (m) Motion to Vacate Reinstatem ent. Bar C ounsel m ay file a motion to vacate an order that reinstates the petitioner if (1) the petitioner has failed to demons trate substantial compliance with the order, including any condition of reinstatement imposed under Rule 16-760 (h) or section (j) of this Rule or (2) the petition filed under section (a) o f this Rule contains a false statement or omits a material fa ct, the petitioner k new the s tatement was false or the fact was omitted, and the true facts were not disclosed to Bar Counse l prior to entry of the order. The petitioner may file a verified response within 15 days after service of the motion, unless a different time is ordered. If there is a factual dispute to be resolved, the court m ay enter an ord er designatin g a judge in accordance with Ru le 16-752 to hold a he aring. The judge shall allow reasonable time for the parties to prepare for the hearing and may authorize discovery pursuant to Rule 16-756. The applicable provisions of Rule 16-757 shall govern the hearing. The applicable provisions of Rules 16-758 and 16759, except section (c) of Rule 16-759, shall govern any subsequent proceedin gs in the Court of Appeals. The Court may reimpose the discipline that was in effect when the order was entered or may impose additional or differe nt discip line. The Rule prescribes two reasons for vacating an order that reinstates an attorney whose name previously had been removed from the rolls of the Maryland Bar: when the petitioner fails substan tially to comply with the order of reinstatement and when the petition 9 (f) Response to Petition. Bar Counsel shall file a response to the petition within 30 days after being served unless a different time is ordered. The response shall admit or deny the averments of the petition in accordance with Rule 2-323 (c) and may include a statement of Bar Counsel's recommendations and reasons for supporting or opposing the petition. 10 for reinstatement contains a false statement or omits a material fact, which the petitioner knew to be false or omitted and did not disclose to Bar Counsel prior to entry of the order. It also sets out who may file the order to vacate: Bar Counsel. No provision is made for anyone else to do so. This is logical and appropriate. The motion to vacate an order reinstating an attorney is, after all, like the p etition to reinstate an attorney s pr ivilege to prac tice law, simp ly a part, albeit an important part, of this Court s regulation of the legal pro fession, spe cifically, its regulation and oversight of attorney discipline, in which Bar Counsel necessarily plays a critical and extensive role. As a result, Bar Counsel has been cha rged with duties and given power necessary, and sufficient, to perform that role.10 In that regard, his powers a re 10 (b) Powers and Duties. Subject to the supervision and approval, if required, of the Commission, Bar Counsel has the powers and duties to: (1) in vestigate prof essio nal m isconduct or inca paci ty; (2) issue subpoenas as provided by Rule 16-732; (3) enter into and implement Conditional Diversion Agreements, issue notices, and administer warnings and reprimands; (4) file statements of charges, participate in proceedings before Peer Review Panels, and prosecute all disciplinary and remedial proceedings; (5) file and prosecute petitions for disciplinary and remedial action in the name of the Commission; (6) monitor and enforce compliance with all disciplinary and remedial orders of the Court of Appeals; (7) investigate petitions for reinstatement and applications for resignation from the practice of law and represent the Commission in those proceedings; (8) initiate, intervene in, and prosecute actions to enjoin the unauthorized practice of law; (9) employ attorneys, investigators, and staff personnel as 11 investigative, as, for e xamp le, with regard to professional misconduct and petitions for reinstatement, includes the issuance of subpoenas and involves mo nitoring of disciplinary and remedial orders. Bar Counsel is actively and critically involved at the front end of the attorney discipline process, being charged with investigating complaints filed against attor neys to determin e whethe r petitions for disciplinary or remedial action are warranted and, if they are determined to be, prosecuting those that are filed. The role that Bar Counsel plays when an attorney who has been d isbarred or su spended for more than six months seeks re instatem ent is, as w e have seen, als o signif icant. T he petition for reinstatement must be served on Bar Counsel. Similar to his responsibility at the initiation stage of the proc ess, Bar C ounsel is given the responsibility to investigate the accuracy of the allegations in the petition, both factually and with regard to the petitioner s character and fitness, and, on the basis of what he discovers, to respond to the petition. Bar Counsel may also make a recommen dation, with reasons, as to the dispo sition of the petition. In addition to Bar Counsel s extensive and significant involvement in the inve stigative and regulatory processes, the allegations that trigger and/or support the vacation of an order of authorized by the Com mission at the compen sation set for th in the Com mission's bu dget; (10) discharge any employee; (11) main tain docke ts and recor ds of all pap ers filed in disciplinary or remedial proceedings; (12) make reports to the Commission; and (13) perfo rm other d uties prescrib ed by the Co mmission , this Chapter, and the R ules in Title 16, Chapter 60 0 (Attorney Trust Acco unts). 12 reinstateme nt, i.e. making material false statements o r omissions and failing to comply w ith the order, includ ing violating the conditio ns enum erated in the order, confirm and u nderscore that app ropriate ness an d logic. The motion to vacate filed in this case was not filed by Bar Counsel. Indeed, Bar Counsel has yet to file any such motion. Rather, as we have seen, it was filed by counsel for the plaintiff in litigation pending against the respondent. Nor was the basis for the motion to vacate a failure on the pa rt of the respondent to comply with the co nditions the Court imposed for rein stateme nt. Instead, the movant alleged failure of Bar Counsel to investigate a complaint that the movant filed against the respondent, to commun icate with h im or his client, the comp lainant, regard ing the allegations made against the respondent in that complaint and to verify, with him or the complainant that the pending litigation involving the respondent and the complainant, the pendency of wh ich was re ported to the Court, w ould be able to b e settled with out a trial. To be sure, the concerns of a complainant, raised in a complaint to Bar Counsel, filed prior to the respondent s suspension, but which had not been investigated when the respondent was reinstated, and with whom Bar Counsel had not spoken with respect to the respondent s motion fo r reinstateme nt, are properly considered and may inform the question of the respondent s character and present fitness to practice law. There exists an avenue for considering those concerns. That avenue is not this Co urt s entertainin g a petition to v acate filed by a third party, after the respondent has been reinstated, presuma bly after the required 13 investigation has occ urred. The avenue is Bar Counsel, to whose attention the concerns of the third party can, and should, be brought, the expected result of which would be an investigation. That investigation would reveal whether there is a basis for vacation of reinstatement and whether that relief should be sought. The avenue is still open. We hold that an attorney representing a litigant in proceedings involving a reinstated attorney does not h ave standin g to mov e to vacate the order reinstating that attorney; only Bar Counsel may do so.11 Accordingly, the movant s motion to strike the Court s order reinstating the respondent is dismissed. IT IS SO ORDERED. COSTS TO BE PAID BY THE MOVANT, JONATHAN AZRAEL. 11 To be sure, this Court has inherent authority to notice, and address, issues pertinent to an attorney s fitness to practice law. It may, therefore, on its own initiative, entertain a motion such a s that filed by the movant. We re it to do so, however, the C ourt necessarily would refer the matter to Bar Counsel for investigation and such recommendation as the investigation warrants. 14
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