Attorney Grievance v. Vanderslice
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Attorney Grievance Comm’n v. Patrick Edward Vanderslice, Miscellaneous Docket AG No.
68, September Term 2012
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT
This is a reciprocal discipline case involving an attorney who was suspended from the
practice of law in Delaware for a period of one year as a result of violations of Delaware
Lawyers’ Rules of Professional Conduct 1.5(f), 1.15(a) and (b), and 8.4(b), (c), and (d).
Respondent’s conduct warrants “substantially different discipline” in Maryland than that
which was imposed in Delaware, because “exceptional circumstances” exist under Rule
16-773(e). In Maryland, an attorney’s intentional misappropriation of a client’s funds or
another’s funds, absent compelling extenuating circumstances, warrants disbarment. Even
though the Delaware Supreme Court only imposed a suspension of one year, disbarment is
the appropriate sanction in this case.
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 68
September Term, 2012
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
PATRICK EDWARD VANDERSLICE
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by Greene, J.
Filed: October 21, 2013
This is a reciprocal discipline action concerning Patrick Edward Vanderslice,
(“Vanderslice” or “Respondent”), who was admitted to the Bar of this Court on June 21,
2000, and to the State Bar of Delaware in 1999. On October 12, 2012, the Supreme Court
of the State of Delaware suspended Respondent from the practice of law in Delaware for a
period of one year. The Supreme Court determined that Vanderslice violated the Delaware
Lawyers’ Rules of Professional Conduct 1.5(f),1 1.15(a) and (b),2 and 8.4(b), (c), and
1
2
Delaware Lawyers’ Rules of Professional Conduct 1.5(f) (“Fees”) provides:
(f) A lawyer may require the client to pay some or all of the fee in advance of
the lawyer undertaking the representation, provided that:
(1) The lawyer shall provide the client with a written statement that the
fee is refundable if it is not earned,
(2) The written statement shall state the basis under which the fees shall
be considered to have been earned, whether in whole or in part, and
(3) All unearned fees shall be retained in the lawyer's trust account,
with statement of the fees earned provided to the client at the time such
funds are withdrawn from the trust account.
Delaware Lawyers’ Rules of Professional Conduct 1.15(a) and (b) (“Safekeeping
Property”) provides:
(a) A lawyer shall hold property of clients or third persons that is in a lawyer's
possession in connection with a representation separate from the lawyer's own
property. Funds shall be kept in a separate account designated solely for funds
held in connection with the practice of law in this jurisdiction. Except as
provided in (g) with respect to IOLTA-eligible funds, such funds shall be
maintained in the state in which the lawyer's office is situated or elsewhere
with the consent of the client or third person. Funds of the lawyer that are
reasonably sufficient to pay financial institution charges may be deposited in
the separate account; however, such amount may not exceed $1,000 and must
be separately stated and accounted for in the same manner as clients' funds
deposited therein. Other property shall be identified as such and appropriately
safeguarded. Complete records of such account funds and other property shall
be kept by the lawyer and shall be preserved for a period of five years after the
completion of the events that they record.
(b) Upon receiving funds or other property in which a client or third person
(continued...)
(d).3 On December 6, 2012 this Court entered an interim suspension of Respondent’s right
to practice law in Maryland, pursuant to Rule 16-773(d).4
Proceedings began in this Court on December 5, 2012 when the Attorney Grievance
Commission (“Petitioner” or “Bar Counsel”), acting pursuant to Rules 16-751(a) (2)5 and 16-
(...continued)
has an interest, a lawyer shall promptly notify the client or third person. Except
as stated in this Rule or otherwise permitted by law or by agreement with the
client, a lawyer shall promptly deliver to the client or third person any funds
or other property that the client or third person is entitled to receive and, upon
request by the client or third person, shall promptly render a full accounting
regarding such property.
3
Delaware Lawyers’ Rules of Professional Conduct 8.4(b), (c), and (d)
(“Misconduct”) provides:
It is professional misconduct for a lawyer to:
(b) commit a criminal act that reflects adversely on the lawyer's honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
4
Md. Rule 16-773(d) provides:
(d) Temporary Suspension of Attorney. When the petition and disciplinary or
remedial order demonstrate that an attorney has been disbarred or is currently
suspended from practice by final order of a court in another jurisdiction, the
Court of Appeals may enter an order, effective immediately, suspending the
attorney from the practice of law, pending further order of Court. The
provisions of Rule 16-760 apply to an order suspending an attorney under this
section.
5
Md. Rule 16-751(a)(2) provides:
(2) Conviction of crime; reciprocal action. If authorized by Rule 16-771 (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
(continued...)
2
773(b),6 filed a Petition for Disciplinary or Remedial Action against Vanderslice. Bar
Counsel attached to the Petition a certified copy of the Delaware Supreme Court’s per curiam
opinion and incorporated into the Petition by reference the findings of fact and conclusions
of law issued by that court in the Vanderslice case.
The Delaware Supreme Court determined that Respondent intentionally committed
theft “eight times over a period of ten months[.]” The misappropriated funds were from the
law firm of which he was a partner. Respondent also generated deficiently drafted retainer
agreements. He violated Delaware Lawyers’ Rules of Professional Conduct 1.5(f), 1.15(a)
and (b), and 8.4(b), (c), and (d). Bar Counsel relied upon the Supreme Court’s conclusion
that Vanderslice violated Rules 1.5(f), 1.15(a) and (b), and 8.4(b), (c), and (d) of the
Delaware Lawyers’ Rules of Professional Conduct, which correspond to Rules 1.5(f), 1.15(a)
and (b), and 8.4(b), (c), and (d) of the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC” or “Rule”). Bar Counsel requested that we issue a Show Cause Order.
(...continued)
this subsection.
6
Md. Rule 16-773(b) provides:
(b) Petition in Court of Appeals. Upon receiving and verifying information
from any source that in another jurisdiction an attorney has been disciplined
or placed on inactive status based on incapacity, Bar Counsel may file a
Petition for Disciplinary or Remedial Action in the Court of Appeals pursuant
to Rule 16-751 (a)(2). A certified copy of the disciplinary or remedial order
shall be attached to the Petition, and a copy of the Petition and order shall be
served on the attorney in accordance with Rule 16-753.
3
On December 6, 2012, we issued a Show Cause Order pursuant to Rule 16-773(e).7
Bar Counsel responded, asked that reciprocal discipline not be imposed, and requested that
we order disbarment because of the existence of “exceptional circumstances” and because
the established conduct “warrants substantially different discipline in this State.” In
Vanderslice’s response to the Show Cause Order, he stated that the Delaware Supreme
Court’s Opinion in his case speaks for itself, recommended that we impose reciprocal
discipline retroactive to October 12, 2012, and requested that no money judgment be entered
against him for costs because he has been unemployed since October 24, 2012.
This case was scheduled for oral argument before this Court on September 10, 2013.
Respondent failed to appear for oral argument or offer any explanation for his misconduct.
On September 10, we issued a per curiam order and disbarred Vanderslice. We now explain
our reasons for ordering his disbarment, rather than ordering reciprocal discipline in this
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Md. Rule 16-773(e) provides:
(e) Exceptional Circumstances. Reciprocal discipline shall not be ordered if
Bar Counsel or the attorney demonstrates by clear and convincing evidence
that:
(1) the procedure was so lacking in notice or opportunity to be heard as
to constitute a deprivation of due process;
(2) there was such infirmity of proof establishing the misconduct as to
give rise to a clear conviction that the Court, consistent with its duty,
cannot accept as final the determination of misconduct;
(3) the imposition of corresponding discipline would result in grave
injustice;
(4) the conduct established does not constitute misconduct in this State
or it warrants substantially different discipline in this State; or
(5) the reason for inactive status no longer exists.
4
case.
Discussion
In reciprocal discipline cases, pursuant to Rule 16-773(g), we generally treat the
factual findings and conclusions of law from the original jurisdiction as conclusive evidence
of an attorney’s misconduct:
(g) Conclusive effect of adjudication. Except as provided in subsection
(e)(1) and (e)(2) of this Rule, a final adjudication in a disciplinary or remedial
proceeding by another court, agency, or tribunal that an attorney has been
guilty of professional misconduct or is incapacitated is conclusive evidence of
that misconduct or incapacity in any proceeding under this Chapter. The
introduction of such evidence does not preclude the Commission or Bar
Counsel from introducing additional evidence or preclude the attorney from
introducing evidence or otherwise showing cause why no discipline or lesser
discipline should be imposed.
See also Attorney Grievance Comm’n v. Haas, 412 Md. 536, 546, 988 A.2d 1033, 1038
(2010); Attorney Grievance Comm’n v. Whitehead, 390 Md. 663, 669, 890 A.2d 751, 754
(2006); Attorney Grievance Comm’n v. Scroggs, 387 Md. 238, 249, 874 A.2d 985, 992
(2005). In our review of the Petition for Disciplinary or Remedial Action and the responses
to the Show Cause Order, we are guided by Rule 16-773. Pursuant to Rule 16-773(e)(3) and
(4), respectively, we do not order reciprocal discipline if there is clear and convincing
evidence that either the imposition of corresponding discipline would result in grave
injustice, or the conduct established warrants substantially different discipline in this State.
Bar Counsel asserts that the facts of this case warrant a more serious sanction than
suspension from the practice of law for one year.
5
Our Rules provide that we “may . . . impose corresponding discipline,” not that we
shall impose “identical discipline.” See Rule 17-773(f); Attorney Grievance Comm’n v.
Gordon, 413 Md. 46, 55-56, 991 A.2d 51, 56 (2010). We analyze each case individually
“and decide whether to deviate from the original jurisdiction’s sanction[.]” Attorney
Grievance Comm’n v. Weiss, 389 Md. 531, 547, 886 A.2d 606, 615 (2005). Although most
jurisdictions have the same purpose as we do in attorney discipline cases, “[w]e have
recognized that the public interest is served when this Court imposes a sanction which
demonstrates to members of the legal profession the type of conduct that will not be
tolerated . . . .” Gordon, 413 Md. at 56, 886 A.2d at 57 (quoting Attorney Grievance
Comm’n v. Sperling, 380 Md. 180, 191, 884 A.2d 397, 404 (2004)).
When considering an appropriate sanction in a reciprocal case, we must look “not
only to the sanction imposed by the other jurisdiction but to our own cases as well. The
sanction will depend on the unique facts and circumstances of each case, but with a view
toward consistent dispositions for similar misconduct.” Weiss, 389 Md. at 548, 886 A.2d
at 616. If our cases demonstrate that we would apply a different sanction had the conduct
occurred or the case originated in Maryland, we need not follow the original jurisdiction’s
sanction. Whitehead, 390 Md. at 673, 890 A.2d at 757. Our goal in imposing a sanction in
an attorney discipline matter is to protect the public and to deter other lawyers from
engaging in similar conduct. Attorney Grievance Comm’n v. Powell, 369 Md. 462, 474-75,
800 A.2d 782, 789 (2002). To reach that goal, we will balance our tendency to follow the
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original jurisdiction’s sanction against our prior cases and the sanctions imposed upon
members of this Bar for similar misconduct committed in this State. Attorney Grievance
Comm’n v. Katz, 429 Md. 308, 317, 55 A.3d 909, 914 (2012) (quoting Gordon, 413 Md. at
57, 991 A.2d at 57).
In Weiss, we pointed out that “we have become much less lenient towards any
misconduct involving theft, misappropriation, fraud, or deceit.” Weiss, 389 Md. at 551, 886
A.2d at 617. We have deviated from the original jurisdiction’s sanction and imposed a more
serious sanction “when the conduct involved is of such a nature that it would not be
tolerated from any member of the Bar in this State if the conduct occurred here.” Weiss, 389
Md. at 551-52, 886 A.2d at 618. See, e.g., Attorney Grievance Comm’n v. Zodrow, 419 Md.
286, 302, 19 A.3d 381, 391 (2011) (holding that disbarment was the proper sanction in a
reciprocal action, even when the Colorado Supreme Court only imposed a one year and one
day suspension, because “[t]he purpose of [Rule 16-773(e)] is to ensure that all attorneys
of this Bar are subject to similar sanctions for similar misconduct, regardless of whether the
misconduct takes place in this State or another jurisdiction”); Attorney Grievance Comm’n
v. Beatty, 409 Md. 11, 18, 972 A.2d 840, 843-44 (2009) (holding that “an indefinite
suspension would be the appropriate sanction in the case at bar even if the New Jersey Court
Rules entitled Respondent to resume practicing law as soon as the period of his [threemonth] suspension expired” because other members of the Maryland Bar would be
sanctioned in such a way).
7
The present case involves an attorney’s misappropriation of funds from the law firm
of which he was a partner. Respondent misappropriated “consultation fees” and “flat fees”
from the firm on eight separate occasions between December 2010 and September 2011. “To
mitigate his financial difficulties resulting from [a] pay cut, Respondent misappropriated
clients’ [fees as indicated.]” In addition, Respondent prepared deficiently drafted retainer
agreements. In those agreements, he “failed to provide that any retainer was refundable if
unearned, even though in practice his firm refunded any unearned retainers to its clients.”
Once the law firm discovered the misappropriation, the firm confronted Respondent. He
confessed his misconduct and was dismissed immediately.
The law firm informed
Respondent that he had two weeks to report his wrongdoing to the Delaware Office of
Disciplinary Counsel.
Respondent apparently reported his misconduct to Delaware’s
equivalent of Bar Counsel, but he “did not report the disciplinary action taken in Delaware
to Maryland Bar Counsel pursuant to Md. Rule 16-773(a).” Respondent misappropriated a
total of $1,780.00 from the law firm and repaid those funds from a life insurance distribution
that the firm owed to Respondent upon his dismissal.
Respondent agrees that he violated Rule 1.5(f) with regard to his drafting in a
deficient manner three retainer agreements. Likewise, he agrees that he violated Rules
1.15(a) and (b), and Rule 8.4(c). The Delaware Supreme Court also determined that
Respondent violated 8.4(b) because he “committed theft by misappropriating firm funds.”
In addition, the Supreme Court determined that Respondent’s conduct was prejudicial to the
8
administration of justice and in violation of 8.4(d) because he “committed theft (an offense
involving dishonesty and a breach of trust)[.]”
In determining the appropriate sanction, the Delaware Supreme Court considered the
American Bar Association Standards, mitigating, and aggravating factors. The Supreme
Court concluded that five aggravating factors offset the mitigating factors and imposed a
sanction of suspension from the practice of law for one year. As to the aggravating factors,
the Supreme Court pointed out that Vanderslice had substantial experience in the practice of
law, he did not voluntarily report his misconduct to the Office of Disciplinary Counsel or his
law firm, he was involved in eight instances of misconduct over a ten month period, he acted
from a dishonest or selfish motive, and there was a pattern of misconduct. As to the
mitigating factors, the Supreme Court pointed to the absence of a prior disciplinary record,
Vanderslice’s personal or emotional problems stemming from deaths in his family, his
character or reputation, his interim rehabilitation, and remorse.
Vanderslice’s intentional misappropriation of the law firm’s funds clearly violated
Rules 8.4(b), (c) and (d). Even though he fully reimbursed the law firm the funds that had
been taken, there are exceptional circumstances, under Rule 16-773(e), which warrant
“substantially different discipline” in Maryland.
“Absent compelling extenuating
circumstances,” we have said, “intentional misappropriation of client funds or another’s
funds is deceitful and dishonest conduct [and] justifies disbarment.” Attorney Grievance
Comm’n v. Carithers, 421 Md. 28, 58, 25 A.3d 181, 199 (2011); see Attorney Grievance
9
Comm’n v. Spery, 371 Md. 560, 568, 810 A.2d 487, 491-92 (2002); Attorney Grievance
Comm’n v. Vlahos, 369 Md. 183, 186, 798 A.2d 555, 556 (2002). In contrast, the Delaware
Supreme Court has found that where an attorney stole funds from his law firm on one
occasion, then continued to misrepresent the theft to his law firm, and fully reimbursed the
firm, had no prior discipline and self-reported, a one-year suspension from the practice of law
was appropriate.
In re Vanderslice, 55 A.3d 322, 328 (Del. 2012) (discussing In re
Staropoli, 865 A.2d 522 (Del. 2005)); see also In re Figliola, 652 A.2d 1071 (Del. 1995)
(imposing
six-month
suspension
where
an
attorney recklessly and
knowingly
misappropriated both firm and client funds on multiple occasions, taking into consideration
that the attorney had fully reimbursed the funds taken, had no prior discipline, and cooperated
with the investigation).
When imposing the sanction of disbarment, we have also said:
[I]n cases of intentional dishonesty, misappropriation cases, fraud, stealing,
serious criminal conduct and the like, we will not accept as compelling
extenuating 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[s] in an attorney’s
utter inability to conform his or her conduct in accordance with the law and the
[Maryland Rules of Professional Conduct].
Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463, 485
(2001). In the present case, there was evidence before the Delaware Supreme Court that
Vanderslice, in 2008 and 2009, began to experience personal and emotional problems
because of deaths in his family. In 2009, prior to the misappropriation of funds in this case,
10
Vanderslice began seeking treatment for his ongoing depression. Although the Supreme
Court found Vanderslice’s personal and emotional problems to be a mitigating factor, it made
no finding that Vanderslice’s personal and emotional problems caused his misconduct or
affected his day to day activities or interfered with his ability to conform his conduct to the
requirements of the Rules of Professional Conduct. In addition, Vanderslice offered no such
evidence to this Court or otherwise showed cause why we should not impose the sanction of
disbarment.
In conclusion, consistent with our case law, the appropriate sanction in this reciprocal
discipline case is disbarment. There are no adequate mitigating or extenuating circumstances
presented to justify a reciprocal or a lesser sanction. The conduct established warrants
substantially different discipline in this State.
11
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