Attorney Grievance Commission v. Brooke

821 A.2d 414 (2003) 374 Md. 155 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND, v. John A. BROOKE. Misc. AG No. 36, Sept. Term, 2002. Court of Appeals of Maryland.

April 11, 2003. ⁴¹⁷ Melvin Hirshman, Bar Counsel and Gail D. Kessler, Asst. Bar Counsel for the Attorney Grievance Commission of Maryland, for petitioner. Benjamin Lipsitz, Baltimore, for respondent. Argued before BELL, C.J., ELDRIDGE, [*] RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ. ^{415 416} RAKER, Judge.

The Attorney Grievance Commission, acting through Bar Counsel, filed a petition with this Court for disciplinary action against respondent alleging violations of the Maryland Rules of Professional Conduct. The Commission charged respondent with violating Rules 1.8(c) (Conflict of Interest, Prohibited Transactions), [1] 5.3(c) (Responsibilities Regarding Non-lawyer Assistants), [2] and 8.4 (Misconduct). [3] Pursuant to Maryland Rule 16-752(a), we referred the matter to Judge Joseph P. McCurdy, Jr., of the Circuit Court for Baltimore City to make findings of fact and proposed conclusions of law. Judge McCurdy held an evidentiary hearing in the Circuit Court for Baltimore City. Petitioner was represented by Bar Counsel and respondent was represented by counsel.

In response to the Petition for Disciplinary or Remedial Action, respondent filed an Answer, setting forth a series of defenses thereto and a prayer that the hearing court dismiss the petition. [4] Judge McCurdy noted that this matter concerns the fact that respondent was named Personal Representative and sole legatee in the Last Will of John C. Sherpinski, Sr., and the allegation of the Attorney Grievance Commission that respondent violated the Rules of Professional Conduct. The hearing judge noted that there were two issues presented: (1) Was there an attorney-client relationship existing between respondent and the testator with respect to the preparation of the testator's Last Will and Testament; and (2) If there was such a relationship, did respondent violate one or more of the Rules as alleged by Bar Counsel? Following an evidentiary hearing, ⁴¹⁸ Judge McCurdy concluded that respondent had violated Rule 1.8(c). [5] I. In a memorandum opinion dated November 21, 2002, Judge McCurdy summarized the events which lead to the present complaint: "There is little disagreement regarding the facts of this case. It is undisputed that the [respondent] and the Testator had been friends for about twenty years, that the [respondent] had performed other types of legal services for the Testator prior to the will being prepared, and that the Testator spent a great deal of time engaging in social visits to the [respondent's] office.

The Testator had also visited the [respondent's] home on the eastern shore of Maryland and at some point kept a boat there. All of the witnesses for the [respondent] testified that the Testator never actually admitted to having children, but was circumspect when asked if he had children. "On September 8, 1999 the Testator visited the [respondent] and told him that he was being admitted to Maryland General Hospital the following day and that he wanted to execute a will naming the [respondent] personal representative and sole legatee. [Respondent] also testified however, that the Testator's primary concern was that he be buried at sea. The [respondent] testified that he told the Testator that he could write the will in his own hand, and advised the Testator of the witness requirements under Maryland Law.

The [respondent] testified that the Testator began to draft a written document, but (apparently becoming frustrated) gave the handwritten notes to the [respondent], and asked if he could have the [respondent's] secretary prepare the will. "The [respondent] testified that he was not aware of the provision of Rule 1.8(c), which provides that a lawyer shall not prepare an instrument giving the lawyer ... any substantial gift from a client, including a testamentary gift, except where: (1) the client is related to the donee; or (2) the client is represented by independent counsel in connection with the gift. "Catherine Lastner testified that on September 8, 1999, the Testator met with the [respondent], but that she was not present and did not know what was discussed. She testified that the [respondent] asked her if she could prepare a will by the end of the day and "dictated" that he, the [respondent], was to be Personal Representative and sole legatee.

Ms. Lastner testified that she knew how to prepare a simple will, and that she prepared a will for the Testator using either a computer program or by editing another will already on the computer. She said that she did not read the will to the Testator, that he said that he would read it at a later date, and that he asked her to make a copy and mail it to him in a plain envelope using Ms. Lastner's return address. He also asked her if he could change the will. Ms. Lastner testified that she placed the unexecuted will in an envelope on [respondent's] desk, and that the [respondent] was not present at that time, having gone to his apartment on the second floor of the building.

"Joseph Gorlaski testified that he knew the [respondent] all his life, that ⁴¹⁹ he was a tenant of the [respondent], and that he is employed at Maryland General Hospital. He also knew the Testator and frequently worked with him at Assisi House, which is a charitable program operated by Saint Patrick's Roman Catholic Church in east Baltimore. Mr. Gorlaski testified that the [respondent] asked him to take something to Maryland General Hospital for the Testator. Mr. Gorlaski testified that he took the will off the [respondent's] desk and took it to the Testator's hospital room the next day.

Mr. Gorlaski testified that the Testator signed the will in the presence of Mr. Gorlaski and Melissa Moreno, R.N., who witnessed the will in the presence of the Testator and each other. Mr. Gorlaski testified that he then took the executed will to his locker, took it with him when he left work, and left it on Ms. Lastner's desk." Judge McCurdy included the following Findings of Fact and Conclusions of Law: Findings of Fact "Based on the evidence submitted to the court at the hearing including the exhibits and the admissions of the [respondent], the court finds pursuant to Rule 16-757(b) that the following facts averred in the Petition have been proven by clear and convincing evidence: "1. That the [respondent] had performed legal services for the Testator prior to the events which gave rise to the complaint in this case. "2.

That on September 8, 1999, the Testator visited [respondent's] office to discuss with the [respondent], the Testator's wishes to be buried at sea and to prepare a will. "3. That the [respondent] advised the Testator regarding the elements of a valid will under Maryland law. "4.

That the [respondent] directed Catherine Lastner to write a will for the Testator naming the [respondent] the personal representative and sole heir. "5. That Catherine Lastner is a non-lawyer assistant of the [respondent]. "The court further finds pursuant to Rule 16-757(b) that the [respondent] has proven the following facts by a preponderance of the evidence.

"6. That the [respondent] and the Testator were close social friends of many years standing. "7. That the [respondent] was not aware of the provisions of Rule 1.8.

"8. That the [respondent] did not exercise undue influence upon the Testator. "9. That it was the unequivocal intent of the Testator to name the [respondent] as his sole heir.

Conclusions of Law "The court makes the following conclusions of law: "1. That an attorney-client relationship existed between the [respondent] and the Testator with respect to the preparation of the [respondent's] Last Will and Testament. "2. That the [respondent] violated Rule 1.8 of the Rules of Professional Conduct.

"3. That the [respondent] did not violate Rule 5.3. "4. That the [respondent's] violation of Rule 1.8 is professional misconduct under Rule 8.4. ⁴²⁰ "5.

That the violations of Rule 1.8 and Rule 8.4 merge. "Notwithstanding these findings, the Court does not find that the [respondent's] actions were taken with the intent to take advantage of a confidential relationship or to unlawfully harm the Testator's heirs at law and that the [respondent] made extraordinary efforts to follow the Testator's wishes regarding his burial. The appropriate sanction is, of course, for the Court of Appeals to decide. However, after careful consideration, it is this Court's opinion that a reprimand, which would be publicly and formally recorded would be the appropriate sanction." Both parties have taken exceptions to these findings of fact and proposed conclusions of law.

II

This Court has original jurisdiction over attorney disciplinary proceedings. See Attorney Grievance Comm'n v. Harris, 371 Md. 510, 539-40 , 810 A.2d 457, 474-75 (2002). In the exercise of our obligation, we conduct an independent review of the record, accepting the hearing judge's findings of fact unless clearly erroneous. See Attorney Grievance Comm'n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 763 (2002).

The factual findings of the hearing judge will not be disturbed if they are based on clear and convincing evidence. See Attorney Grievance Comm'n v. Monfried, 368 Md. 373, 388 , 794 A.2d 92, 100 (2002). We consider the hearing judge's proposed conclusions of law de novo. See Attorney Grievance Comm'n v. McLaughlin, 372 Md. 467, 493 , 813 A.2d 1145, 1160 (2002).

Bar Counsel excepts to Judge McCurdy's findings of fact and proposed conclusions of law and specifically to footnote one on the judge's memorandum. Bar Counsel maintains that the hearing judge erred in admitting evidence of a disposition offered by Bar Counsel during preliminary negotiations. During the course of the hearing, Judge McCurdy engaged in a protracted discussion with Bar Counsel and respondent's counsel concerning the admissibility of evidence relating to a proposed reprimand and the recommendation of the peer review panel. In support of respondent's request for dismissal of the disciplinary petition, respondent offered evidence of Bar Counsel's proposed disposition and the peer review recommendation. [6] Bar Counsel objected, relying on Rule 16-737(d).

Bar Counsel's objection was well taken and the hearing judge sustained the objection. Respondent asserted that the hearing court's ruling would preclude adequate review by this Court. The hearing judge ruled subsequently that "for the purpose of completing the record, [the evidentiary materials] are admitted but will not be considered by the Court in making findings of fact and conclusions of law." Judge McCurdy, in the memorandum issued along with the findings of fact and proposed conclusions of law, included the following footnote: "At the hearing, [respondent] attempted to introduce evidence of a proposed reprimand by the Commission offered pursuant to Maryland Rule 16-737(a) and rejected by the Commission pursuant to ⁴²¹ Rule 16-737(c)(3). This was admitted for the purpose of preserving the record only as [respondent's] Exhibit No. 5.

The proceedings under Rule 16-737 were not read or considered by the Court, nor was the fact that the proceedings under Rule 16-737 occurred considered. "Similarly, [respondent] attempted to introduce evidence regarding a Peer Review process conducted pursuant to Rule 16-743, which resulted in a recommendation which was not accepted by the Commission. This material is contained in [respondent's] Exhibit No. 6, which was admitted for the purpose of preserving the record only, and was likewise not read or considered by the court." Judge McCurdy was correct in not admitting evidence of the recommendation of the peer review panel and the proposed disposition offered by Bar Counsel during preliminary discussions. [7] See Maryland Rule 16-737(d). The Rule, precluding the admissibility of such evidence for any purpose, reads as follows: "Effect of rejection or disapproval.

If a reprimand is proposed and rejected or if a reprimand to which the parties have stipulated is not approved by the Commission, the proceeding shall resume as if no reprimand had been proposed, and neither the fact that a reprimand was proposed, rejected, or not approved nor the contents of the reprimand and any stipulation may be admitted into evidence." By its plain language, the Rule explicitly precludes the admission into evidence of any proposed reprimand that has been rejected or disapproved. Rule 16-737 was crafted to facilitate dispositions between the Commission and an attorney under investigation. Such proceedings are akin to plea negotiations in the criminal context, and are accorded similar protection from discovery under the disciplinary rules. See Maryland Rule 5-410 (Inadmissibility of pleas, plea discussions, and related statements).

Henceforth, it should be clear to all that any proposed disposition or proposed reprimand that was offered by Bar Counsel is not admissible in evidence and should not be brought to the attention of the hearing judge, either directly or indirectly. Respondent excepted to several of the hearing judge's findings of fact and proposed conclusions of law. Respondent first excepts to the hearing judge's finding of fact that "the Testator visited [respondent's] office to discuss with the [respondent], the Testator's wishes to be buried at sea and to prepare a will." Respondent argues that the evidence does not support the inference that Mr. Sherpinski visited his office "for the purpose of preparing a will." He maintains that Mr. Sherpinski "simply happened to bring up those matters" while visiting respondent's office socially. Respondent notes that such visits by Mr. Sherpinski were common and that there had been no prior notice or arrangement for such a meeting.

Further, the evidence indicated that other, non-business activities were discussed during the visit. It is undisputed that Mr. Sherpinski visited respondent's office and, while there, discussed with respondent the preparation of a will. Further, respondent testified that Mr. Sherpinski "was very insistent and very concerned" about making arrangements for his death, that Mr. Sherpinski "really needed this stuff urgently," and that "[Mr. Sherpinski] seemed very, ⁴²² very concerned about the fact that he was going to the hospital [the following day]." That testimony supports the inference that Mr. Sherpinski's visit to respondent's office was more than a mere social call. Judge McCurdy's finding as to the purpose of the visit was supported by clear and convincing evidence.

Accordingly, this exception is overruled. Respondent next excepts to the hearing judge's finding that respondent "advised the Testator regarding the elements of a valid will under Maryland law." Respondent acknowledges that he told Mr. Sherpinski that he "could write the will by hand stating what his wishes were and have it witnessed by two witnesses." Respondent argues that "[c]onveyance of that minimal information" could simply have been the advice of a well-meaning friend, rather than a lawyer. The quantum of information does not determine whether the advice was given in the capacity of a friend or as an attorney. The fact that the requirements of a valid will are minimal does not alter the fact that they were the subject of respondent's advice, nor does it render the topic non-legal.

Not all advice provided by an attorney is of a complex nature. Considering the totality of the circumstances, we find that Judge McCurdy's finding was supported by clear and convincing evidence. Accordingly, this exception is overruled. Respondent excepts to the hearing judge's finding that "the [respondent] directed Catherine Lastner to write a will for the Testator naming the [respondent] the personal representative and sole heir." Respondent objects to the hearing judge's use of the word "directed," arguing that the evidence indicates only that respondent asked his secretary to type up the will "if she had time ." Respondent claims that his inquiry did not amount to a directive.

Ms. Lastner, respondent's secretary, testified as follows: "A: So Mr. Brooke called me in and he asked me if I could possibly have the will ready for Mr. Sherpinski before the end of the day so that it could be taken to him when he was sent to the hospital. At which time I replied, if it wasn't too long. "Q: If it wasn't too long? "A: Wasn't too involved, you know.

And he told me, at that time, that it would be just that Mr. Sherpinski simply wanted a will drawn up naming him as PR and legatee. * * * "Q: Okay. And how did you know what to insert in the—as far as the information specific to this will? "A: Mr. Brooke dictated to me the two things he needed. I'm used to working for lawyers.

I have worked for lawyers nine years. And if you're working for them all the time, it's gotten to the point where dictation can simply be this is a deed and it's going to go from so and so to so and so." The testimony supports the inference that respondent directed his secretary to type up the will. Respondent argues that Ms. Lastner later seemed to recant her use of the word "dictated" during cross-examination. To the degree the testimony is in conflict, it was up to the hearing judge to assess the credibility of the evidence.

Judge McCurdy was not clearly erroneous in accepting the witness's initial statement. Furthermore, whether respondent "dictated" the terms of the will to be drafted, or merely "said" what was to be included, does not alter the nature of the interaction between respondent and his secretary. Respondent also argues that the secretary was not asked to "write" the will, but ⁴²³ simply to type up a form under the direction of Mr. Sherpinski. Ms. Lastner testified as follows: "A: I went in, I found something on the computer, what I call a simple will.

We have different forms in the computer. * * * "Q: And you prepared this will? "A: Yes. "Q: You typed it up on the computer? "A: Yes, sir.

"Q: And printed it out? "A: Yes, sir. That the secretary was directed to type the information into a computer generated form rather than to create the document does not undermine the hearing judge's finding of fact that she wrote the will. Judge McCurdy's findings were supported by clear and convincing evidence.

Accordingly, these exceptions are overruled. Respondent excepts to the hearing court's finding that "the Testator began to draft a written document, but (apparently becoming frustrated) gave the handwritten notes to the [respondent]." Respondent's testimony that the Mr. Sherpinski "tore it off the pad and crunched it up and actually handed it to me" supports the factual statement by the hearing judge. Respondent argues that the hearing judge improperly omitted the fact that the paper containing the notes was discarded by the respondent immediately upon receipt. Respondent complains that omission of this fact leads to an inference that respondent acted with impropriety.

The hearing judge, however, stated explicitly that "the Court does not find that the [respondent's] actions were taken with the intent to take advantage of a confidential relationship." Respondent's exception is overruled. Finally, respondent claims that the summary of facts as recounted by the hearing judge attributes the following activities of the secretary and Mr. Sherpinski to the wrong date: "[Ms. Lastner] said that she did not read the will to the Testator, that he said that he would read it at a later date, and that he asked her to make a copy and mail it to him in a plain envelope using Ms. Lastner's return address. He also asked her if he could change the will." Respondent states that the preceding events occurred, not on September 8, 1999, but rather, during a subsequent visit by Mr. Sherpinski to respondent's office. Respondent is correct, but nonetheless, the conclusions as to his Rule violations are unchanged.

We turn now to respondent's three exceptions related to the hearing court's proposed conclusions of law. First, respondent excepts to the hearing judge's finding that an attorney-client relationship existed between respondent and Mr. Sherpinski with respect to the preparation of the will. Second, argues respondent, because no attorney-client relationship existed, the hearing judge's conclusion that respondent violated Rule 1.8(c) was erroneous. Third, according to respondent, because there was no basis to find a violation of Rule 1.8(c), the hearing court was also incorrect in finding a violation of Rule 8.4.

In the alternative, respondent argues that the violation of Rule 8.4 amounts to impermissible double punishment for the violation of Rule 1.8(c). We find all of respondent's exceptions to be without merit. We turn first to respondent's contention that the hearing judge erred in concluding that an attorney-client relationship existed between respondent and the testator with respect to the will. The record contains ⁴²⁴ clear and convincing evidence that an attorney-client relationship was established between respondent and Mr. Sherpinski with respect to the preparation of the will.

Our predecessors have noted that "[w]hat constitutes an attorney-client relationship is a rather elusive concept." Attorney Grievance Comm'n v. Shaw, 354 Md. 636, 650 , 732 A.2d 876, 883 (1999) (quoting Folly Farms I, Inc., v. Trustees, 282 Md. 659, 670 , 387 A.2d 248, 254 (1978)). The question of whether an attorney-client relationship exists has arisen in a variety of circumstances. For example, this Court has considered whether the relationship exists in the context of agency and principal such that the lawyer bound the purported client to a particular transaction, see Brown v. Hebb, 167 Md. 535 , 175 A. 602 (1934); whether a lawyer engaged in a business partnership was in an attorney-client relationship vis-a-vis his partners, see Attorney Grievance Comm'n v. Kramer, 325 Md. 39 , 599 A.2d 100 (1991); and whether an attorney-client relationship exists for purposes of a claim against the Client Security Trust Fund. See Folly Farms I, 282 Md. 659 , 387 A.2d 248 .

See also, McCormick on Evidence ß 88, at 352 (5th ed.1999) (referring to the relationship in the context of the evidentiary privilege in attorney-client communications). The Supreme Judicial Court of Maine, in Board of Overseers of the Bar v. Mangan, 763 A.2d 1189 (2001), in a disbarment disciplinary proceeding, recently considered whether an attorney-client relationship existed between the attorney and a purported client. The court reiterated its definition of "client," stating that "the term `client' includes one who is either `rendered professional legal services by a lawyer, or who consults a lawyer with a view to obtaining professional legal services from him.'" Id. at 1192 (quoting Board of Overseers of the Bar v. Dineen, 500 A.2d 262, 264 (Me.1985)). Although an attorney-client relationship ordinarily rests on contract, the contract need not be express and may be implied from the conduct of the parties.

See Shaw, 354 Md. at 650-51 , 732 A.2d at 883 ; Healy v. Gray, 184 Iowa 111 , 168 N.W. 222 (1918). It is not necessary to the relationship that a retainer be requested or paid. See Shaw, 354 Md. at 650 , 732 A.2d at 883 . This Court has stated that the lack of any explicit agreement or payment arrangement did not preclude the formation of an attorney-client relationship.

In Attorney Grievance Comm'n v. James we stated: "Although an agreement upon the amount of a retainer and its payment is rather conclusive evidence of the establishment of the