Attorney Grievance Commission v. Burghardt

HARRELL, J. I. Statement of the Case & Procedural History Mira Sugarman Burghardt (“Respondent” or “Burghardt”), who was admitted to the Bar of this Court on 17 December 2002, is the subject of this reciprocal disciplinary action. Respondent was admitted also to the Bars of the Commonwealth of Massachusetts and the District of Columbia. At the time of the misconduct underlying the initial sanction imposed ¹⁵⁵ on Burghardt, she was practicing in Massachusetts. The Supreme Judicial Court for Suffolk County, Massachusetts, by an Order of Term Suspension in In re: Mira S. Burghardt, No. BD-2013-096, entered 9 October 2013, suspended Respondent from the practice of law in Massachusetts for a period of one year and one day, effective thirty days after the date of entry of the Order.

By a Per Curiam Order filed 20 February 2014, the District of Columbia Court of Appeals suspended Respondent, on a reciprocal basis, for a period of one year and one day, nunc pro tunc to 6 December 2013, with reinstatement contingent on a showing of fitness. Pursuant to Maryland Rules 16-751 and 16-773, the Attorney Grievance Commission of Maryland (“Petitioner” or “the Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“PDRA”) on 29 May 2014 against Burghardt based on her misconduct in Massachusetts. Bar Counsel attached to its Petition a certified copy of the 9 October 2013 Order of Term Suspension of the Supreme Judicial Court for Suffolk County in Massachusetts, a Summary of the Massachusetts disciplinary action (the “Summary”) compiled by the Board of Bar Overseers (based on the record filed with the Supreme Judicial Court), and a copy of the 20 February 2014 Per Curiam Order of the District of Columbia Court of Appeals. The Summary states the following: From about May 2008 to September 2011, Respondent was employed by a law firm in Boston, Massachusetts.

Between about June 2011 to September 2011, Respondent submitted requests to the firm for reimbursement of expenses totaling approximately $6,300, which the firm then paid. These expenses were personal and Respondent was not entitled to reimbursement, but Respondent intentionally misrepresented in the requests that the expenses were incurred in connection with firm business. Respondent supported the requests with falsified invoices. On 21 September 2011, the firm questioned Respondent about the expenses, and Respondent acknowledged that the ¹⁵⁶ charges were for personal expenses.

She was discharged from employment that day. Respondent reimbursed the firm for the payments she wrongfully received. On 28 August 2013, bar counsel filed a petition for discipline alleging that Respondent’s conduct in submitting false expense reports to the firm and in fabricating documents to support the false expense charges violated Mass. R. Prof.

C. 8.4(c) and (h).[ 1 ] That same day, Respondent filed an answer admitting to the facts and rule violations alleged, and the parties filed a stipulation asking that the Board of Bar Overseers recommend a suspension of one year and one day. On 23 September 2013, the Board of Bar Overseers voted to accept the parties’ stipulation. The board filed an information with the Supreme Judicial Court of Suffolk County. On 9 October 2013, the county court (Gants, J.) entered an order suspending Respondent for one year and one day effective thirty days after entry of the order.

(minor alterations added). This Court issued a Show Cause Order on 29 July 2014. Bar Counsel, in its Response to the Show Cause Order, argued that Respondent’s misconduct warrants disbarment (which Bar Counsel concedes constitutes “substantially different discipline,” within the meaning of Maryland Rule 16-773(e)(4) 2 ), based on this Court’s imposition of disbarment for ¹⁵⁷ dishonest conduct arguably similar to that committed by Burghardt. Respondent, in her Response, maintained that the imposition of reciprocal discipline (“corresponding discipline” to that imposed in the other jurisdictions) is appropriate as her misconduct did not involve client funds or accounts, and because she cooperated fully with the disciplinary authorities of Massachusetts, the District of Columbia, and Maryland in the course of their investigations and proceedings in these matters.

By an Order dated 24 September 2014, this Court, in accordance with Maryland Rule 16-773(d) (providing for interim suspension), suspended Respondent, effective immediately, from the practice of law in this State, pending further action of this Court. Oral arguments were set for 8 January 2015. In a written notice filed on 29 December 2014, Respondent advised us that neither she nor any representative would be in attendance, and reiterated her request that we impose for her misconduct reciprocal discipline in the same manner as Massachusetts and the District of Columbia, i.e., effectively a suspension of one year and one day.

II

Sanction In reciprocal discipline cases, pursuant to Rule 16-773(g), “the factual findings of the originating jurisdiction are treated ordinarily as conclusive evidence of an attorney’s misconduct.” Attorney Grievance Commission v. Litman, 440 Md. 205, 207 , 101 A.3d 1050, 1052 (2014); see Attorney Grievance Commission v. Kourtesis, 437 Md. 436, 445 , 87 A.3d 1231, 1235-36 (2014); Attorney Grievance Commission v. Katz, 429 Md. 308, 315-16 , 55 A.3d 909, 913 (2012). We do so in the present case. When imposing a sanction, we have the “discretion to impose a discipline consistent with the sister ¹⁵⁸ jurisdiction’s factual findings and conclusions, or to order a different or more serious alternative based on the existence of ‘exceptional circumstances’ under Rule 16-773(e).” Katz, 429 Md. at 316 , 55 A.3d at 913 (footnote omitted). Rule 16-773(e) provides that the Court “shall not” order reciprocal discipline, i.e., corresponding discipline, in the event that either party demonstrates, by clear and convincing evidence, that an “[e]xceptional circumstance[ ]” exists.

Exceptional circumstances include, among others, the factor relied upon here by Bar Counsel: “the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State.” Rule 16-773(e)(4); see Attorney Grievance Commission v. Tun, 428 Md. 235, 246 , 51 A.3d 565, 572 (2012) (“[W]e conclude in the present case that ‘exceptional circumstances,’ as meant in Maryland Rule 16-773(e), exist. [The respondent’s] conduct, had it occurred in Maryland, would warrant a different sanction before this Court than that imposed by the D.C. Court of Appeals.”). Rule 16 — 773(f) does not require us to impose identical discipline; rather, the Court “has the long-established duty to impose discipline that is consistent with our attorney discipline jurisprudence by assessing, independently, the propriety of the sanction imposed by a sister jurisdiction, as well as the sanction recommended by Bar Counsel.” Katz, 429 Md. at 317 , 55 A.3d at 914 ; see Attorney Grievance Commission v. Vanderslice, 435 Md. 295, 302 , 77 A.3d 1100, 1104 (2013); Attorney Grievance Commission v. Cafferty, 376 Md. 700, 727 , 831 A.2d 1042, 1058 (2003). Accordingly, the sanction to be imposed depends “not only on the decision of the sister jurisdiction, but also on the specific facts of each case, balanced against Maryland precedent.” Katz, 429 Md. at 317 , 55 A.3d at 914 . It is a well-established principle in reciprocal discipline cases that “we are prone or inclined, but not required to, impose the same sanction the original jurisdiction imposed.” Attorney Grievance Commission v. Gordon, 413 Md. 46, 55 , 991 A.2d 51, 56 (2010); see Attorney Grievance Commission v. Whitehead, 390 Md. 663, 671 , 890 A.2d 751, 756 (2006); Attorney Grievance Commission v. Weiss, 389 Md. 531, 547 , 886 ¹⁵⁹ A.2d 606, 615 (2005) (“The explicit reluctance of the Court to adopt a blanket rule of reciprocity provides that we must look at each case individually and decide whether to deviate from the original jurisdiction’s sanction.... ”).

If the purpose of the originating jurisdiction’s sanction is congruent with ours, we impose generally corresponding discipline. Gordon, 413 Md. at 56 , 991 A.2d at 57 . As we noted in Gordon , “[o]ur purpose in attorney discipline cases is the protection of the public, rather than the punishment of the erring attorney,” and oftentimes, most jurisdictions have the same purpose. Id.; see Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 388 , 773 A.2d 463, 470 (2001).

We must consider first, however, “what sanction a lawyer in Maryland could expect in response to similar conduct, were it to have occurred in Maryland.” Gordon, 413 Md. at 56 , 991 A.2d at 57 ; see Vanderslice, 435 Md. at 302 , 77 A.3d at 1104 ; Weiss, 389 Md. at 548 , 886 A.2d at 616 . Petitioner directs our attention to several cases in support of its contention that disbarment is the appropriate sanction in this matter, including the oft-cited Attorney Grievance Commission v. Vanderlinde, 364 Md. 376 , 773 A.2d 463 . In Vanderlinde , we disbarred an attorney who, while employed other than as a lawyer, embezzled, stole, or misappropriated $3,880.67 from her employer, using the money for personal purposes. Vanderlinde, 364 Md. at 381 , 773 A.2d at 465-66 .

She attributed her deviant conduct to the pressures of her life and depression at the time. Id. Addressing her depression and other proposed mitigating and extenuating circumstances, we concluded that: [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 in an attorney’s utter inability to conform his or her conduct in accordance with the law and with the [MLRPC]. ¹⁶⁰ Vanderlinde, 364 Md. at 413-14 , 773 A.2d at 485 . We disbarred Vanderlinde, and suggested broadly that “[djisbarment ordinarily should be the sanction for intentional dishonest conduct.” Vanderlinde, 364 Md. at 418 , 773 A.2d at 488 .

Nine years after Vanderlinde was decided, we had occasion in Attorney Grievance Commission v. Palmer, 417 Md. 185, 207-12 , 9 A.3d 37, 50-53 (2010), to review and elaborate in great detail upon the decision in Vanderlinde . In Palmer , an associate of a law firm, who was attempting to make himself appear more attractive for partnership consideration, misappropriated repeatedly and intentionally client funds (unearned fees) by causing them to be transferred from the firm’s escrow account to the firm’s general account, and then assigning one-third of those funds as income generated by him, in order to foster the illusion that he was bringing in more income to the firm than he earned justifiably by dint of actual effort. Palmer, 417 Md. at 206 , 9 A.3d at 50 . We noted in our opinion in Palmer that Vanderlinde’s repeated usage of phrases like “similar problems” and “such matters” (referring to Vanderlinde’s claims of pressures of life and the impairment of her mental faculties as mitigators) “informs that (1) the Vanderlinde survey of mitigation-of-sanction jurisprudence was limited purposefully to those cases dealing with mental disability; and, more importantly, (2) Vanderlinde intended its holding to apply only to situations where similar mental disability mitigation defenses are offered by a respondent.” Palmer, 417 Md. at 210 , 9 A.3d at 52 .

In Palmer we noted also that Vanderlinde should be read in light of Attorney Grievance Commission v. Lane, 367 Md. 633, 647 , 790 A.2d 621, 628-29 (2002). Palmer, 417 Md. at 210-11 , 9 A.3d at 52-53 . Both Vanderlinde and Lane were authored for the Court by Judge Cathell, with Lane filed only a year after Vanderlinde. Lane clarified that Vanderlinde “was not intended to apply to all cases involving intentional dishonesty, intentional misappropriation, fraud, stealing, and serious criminal conduct____” Id.

Judge Cathell noted specifically: We did not apply Vanderlinde as a bright-line rule, but applied the facts and circumstances of that case to deter ¹⁶¹ mine the appropriate sanction. What Vanderlinde holds is that “ordinarily” disbarment will be the appropriate sanction when dishonesty is involved, however, we must still examine the facts, circumstances, and mitigation in each case. Lane, 367 Md. at 647 , 790 A.2d at 628-29 . As clarified in Lane , and stated explicitly in Palmer : [T]he Vanderlinde court believed that it was imposing a bright-line rule; but, as clarified in Lane , the bright-line rule should be understood to apply only to “the facts and circumstances of that case” — i.e., cases of misconduct involving intentional misappropriation, intentional dishonesty, fraud, stealing, and serious criminal offenses where mental disability is offered as mitigation of the normal sanction of disbarment.

This