Attorney Griev. Comm'n of Maryland v. Franz & Lipowitz

BELL, Chief Judge. The Attorney Grievance Commission of Maryland (the “Commission”), the petitioner, through Bar Counsel and pursuant to Maryland Rule 16-709, 1 filed a Petition for Disciplinary Action against Keith S. Franz and Judson H. Lipowitz, the respondents, alleging that the respondents engaged in misconduct arising out of a two train collision which occurred near Silver Spring, Maryland on or about February 16,1996. More particularly, the petitioner charged that the respondents violated Rule 7.3 2 of the Maryland Rules of Professional Con ⁷⁵⁵ duct, Maryland Rule 16-812, Appendix: Rules of Professional Conduct of the Maryland Rules, and Rule 16-609, 3 proscribing certain transactions involving attorney trust accounts. We referred the matter to the Honorable John F. Fader II, of the Circuit Court for Baltimore County, to make findings of fact and draw conclusions of law pursuant to Maryland Rule 16-711(a). 4 Following a hearing, Judge Fader filed Findings of Fact and Conclusions of Law as follows: “The Respondent, Keith S. Franz, was admitted to the Bar of the Court of Appeals of Maryland on November 8, 1979.

The Respondent, Judson H. Lipowitz, was admitted to the Bar ⁷⁵⁶ of the Court of Appeals of Maryland on January 18, 1985. The Respondents are partners in a law firm which maintains its principal office for the practice of law at 101 East Chesapeake Avenue, Towson, Maryland. “On Friday, February 16, 1996, the Respondents learned that two trains had collided near Silver Spring, Maryland. They spoke by telephone shortly after 10:00 p.m. and decided to go to the scene and investigate the accident. While traveling to the site, they learned that the railroad companies had established headquarters at the Hyatt Hotel in Washington, D.C.

(hereafter referred to as “the hotel”). The Respondents changed their plans and traveled to the hotel instead, where they expected there would be a communications center for the media and the National Transportation Safety Board. They thought that would be the best place to start investigating the facts. “They arrived at approximately 12:15 a.m. on Saturday, February 17, 1996. They found the lobby of the hotel virtually empty and proceeded to the bar area of the hotel where people were watching a televised news report of the accident.

The Respondents then encountered several passengers/victims of the train accident who were staying at the hotel. The Respondents initiated in person contacts with some of these individuals. The Respondents identified themselves as attorneys, handed out business cards, and told some of the victims that they would like to represent them. The Respondents obtained names, addresses and telephone numbers for these individuals.

The Respondents did not bring retainer agreements or attempt to have any retainer agreement signed at that time. They advised the victims to consult with their families before making a decision as to representation. “The Respondent subsequently made telephone contact and visited with these prospective clients and their families. The Respondents were engaged by some of the victims and/or their parents as a result of these in person contacts. The individuals contacted were neither close friends, relatives, former clients nor believed to be clients by the Respondents. ⁷⁵⁷ The contacts were not made under the auspices of a bonafide political, social, civil, fraternal, employee or trade organization. “Shortly after they were engaged, the Respondents arranged for loans for these clients from another client of the firm.

The loans, for the purchase of clothing destroyed in the accident and other emergency needs, were to be made from funds maintained in the firm’s client funds account by way of checks written on this account. In order to facilitate one such loan to a client, Marlene Boyer, whose minor son was hospitalized following the accident, the Respondent, Keith S. Franz, issued a cheek in the amount of $250 payable to “cash,” had a firm employee cash the check and deliver the loan proceeds in cash to Ms. Boyer. Although Mr. Franz issued the check, Mr. Lipowitz was aware of the transaction. “The Respondents later determined that they had acted improperly by making direct contact with the prospective clients and withdrew as counsel from the representation of all the clients obtained in this manner. They sent to each of the clients who was had engaged them a letter with the identical text as appears in the letter dated March 8, 1996 to Rodney Crawford, attached as “Exhibit A.” They made no charge for any of the time they spent or expenses they incurred; and they turned over the results of their investigation and cooperated with new counsel of the clients’ choice to accomplish a smooth transition. “On March 12, 1996, the Respondents self-reported their conduct to Bar Counsel.

The Respondents met with Bar Counsel prior to the publication of a newspaper article in which their conduct was described. The actions of the Respondents and the other attorneys following the train accident were the subject of articles in the news media which were critical of the legal profession. “The Respondents acknowledge that their conduct violated Maryland Rule of Professional Conduct 7.3 and Rule 16-609, pertaining to attorney trust accounts.” The hearing court concluded, “by clear and convincing evidence that the respondents ... violated Maryland Rule of ⁷⁵⁸ Professional Conduct 7.3, by initiating in person contacts with prospective clients for the purpose of obtaining professional employment, and Rule 16-609, by drawing or causing to be drawn on an attorney trust account a check payable to ‘cash.’ ” Neither party took exceptions to the findings of fact or conclusions of law. Indeed, both the petitioner and the respondents stipulated that “the Respondents, Keith S. Franz and Judson H. Lipowitz, violated Maryland Rule of Professional Conduct 7.3, by initiating in-person contacts with prospective clients for the purpose of obtaining professional employment, and Rule 16-609, by ‘drawing or causing to be drawn on an attorney trust account a check payable to cash.’ ” Consequently, the only issue that this Court is required to decide is the appropriate sanction to be imposed for these violations. The petitioner seeks for the in person solicitation, as to each respondent, a two-year suspension from the practice of law. 5 It relies on Attorney Grievance Commission v. Gregory, 311 Md. 522 , 536 A.2d 646 (1988) and Attorney Grievance Commission v. Weiss, 300 Md. 306 , 477 A.2d 1190 (1984), in both of which this Court addressed the issue of in-person solicitation of cases.

The petitioner points out, in particular, that the solicitation in those cases occurred in the courthouse and, in Gregory , the Court characterized the persons whom the attorney contacted as “vulnerable,” and the situation or circumstances in which the solicitation was made as having the ⁷⁵⁹ potential for overreaching or improper conduct. 6 Acknowledging that the sanction in Weiss was a reprimand and, in Gregory , who had previously been reprimanded for in-person solicitation, a ninety day suspension, the petitioner justifies its request for a more severe sanction in this case on the basis that Gregory and Weiss served notice on the bar that such conduct would not be tolerated, that the conduct in this case was more reprehensible, and that the vulnerability of the persons solicited here is greater than in either of those cases. 7 Furthermore, comparable sanctions have been imposed for similar conduct by courts in other states. See In the Matter of the Application for Discipline of Perl, 407 N.W.2d 678 (Minn. 1987); Norris v. Alabama State Bar, 582 So.2d 1034 (Ala. 1991); In Re Teichner, 75 Ill.2d 88 , 25 Ill.Dec. 609 , 387 N.E.2d 265 (1979). 8 ⁷⁶⁰ The respondents believe that the appropriate sanction is a public reprimand. From their perspective, the petitioner’s “Draconian recommendation takes no account of guidelines and relevant factors set out in the precedents of this Court and relies on out-of-state case authority that does not support [its] recommendation.” The guidelines and relevant factors to which the respondents refer include the purpose of attorney discipline, the absence of any history of being disciplined or charged with violations of the Rules of Professional Conduct, the attorneys’ prior professional history, 9 whether the behavior was intentional, premeditated or likely to be repeated, the actual effect or result of the offending behavior, whether the attorneys recognized that they had engaged in misconduct and what they did to rectify it, whether the attorneys cooperated with Bar Counsel, and whether the misconduct involved misrepresentation, dishonesty or moral turpitude. Each of these factors militate in favor of a reprimand, the respondents maintain.

Moreover, the respondents assert that they have already suffered for their misconduct. It is well-settled that the purpose of disciplinary proceedings is to protect the public rather than to punish the erring attorney. Attorney Grievance Comm’n of Maryland v. Myers, 388 Md. 440, 446-47 , 635 A.2d 1315, 1318 (1994); Attorney Griev. Comm’n v. Goldsborough, 330 Md. 342, 364 , 624 A.2d 503, 513 ; Attorney Griev.

Comm’n v. Protokowicz, 329 Md. 252, 262-63 , 619 A.2d 100, 105 (1993); Attorney Griev. Comm’n v. Myers, 302 Md. 571, 580 , 490 A.2d 231, 236 (1985); Attorney Griev. Comm’n v. Velasquez, 301 Md. 450, 459 , 483 A.2d 354, 359 (1984); Attorney Griev. Comm’n v. Montgomery, 296 Md. 113, 119 , 460 A.2d 597, 600 (1983).

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. Attorney Griev. Comm’n v. ⁷⁶¹ Kerpelman, 288 Md. 341, 382 , 420 A.2d 940, 959 (1980), cert. denied, 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.,Ed.2d 621 (1981). By imposing such a sanction, this Court fulfills its responsibility “to insist upon the maintenance of the integrity of the Bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute.” Maryland St. Bar Ass’n v. Agnew, 271 Md. 543, 549 , 318 A.2d 811, 814 (1974).

Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules. See Protokowicz, 329 Md. at 262-63 , 619 A.2d at 105 ; Attorney Griev. Comm’n v. Owrutsky, 322 Md. 334, 355 , 587 A.2d 511, 521 (1991); Attorney Griev. Comm’n v. Alison, 317 Md. 523, 540-41 , 565 A.2d 660, 668 (1989).

Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case. Attorney Griev. Comm’n v. Babbitt, 300 Md. 637, 642 , 479 A.2d 1372, 1375 (1984) (the facts and circumstances of a case will determine how severe the sanction should be); Montgomery, 296 Md. at 120 , 460 A.2d at 600 ; Attorney Griev. Comm’n v. Pollack, 289 Md. 603, 609 , 425 A.2d 1352, 1355 (1981).

The attorney’s prior grievance history, as well as facts in mitigation, constitutes part of those facts and circumstances. Maryland State Bar Ass’n v. Phoebus, 276 Md. 353, 362 , 347 A.2d 556, 561 (1975). To be sure, as the petitioner points out, this Court stated, in Weiss , that “a persistent or more egregious course of