Attorney Grievance Commission v. Floyd

BATTAGLIA, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel and pursuant to Maryland Rule lG-TSRa), 1 filed a petition for disciplinary or remedial action against Respondent, Angela Therese Floyd, on August 30, 2006, in which Bar Counsel alleged that Respondent violated Maryland Rule of Professional Conduct 8.4(c) (Misconduct) 2 when, during an employment application process for a legal position, in order to secure a higher salary, she acted intentionally to deceive the Federal Trade Commission (“Commission”) into believing that she and her husband had a “purely” employer-employee relationship. In accordance with Maryland Rules 16-752(a) and 16-757(c), 3 we referred the petition to Judge Larnzell Martin of ²⁴⁰ the Circuit Court for Prince George’s County for an evidentiary hearing and to make findings of fact and conclusions of law. Judge Martin held a hearing on January 4, 2007, and on February 13, 2007, issued Findings of Fact and Conclusions of Law, in which he found by clear and convincing evidence that Respondent had violated Rule 8.4(c): Findings of Fact “The following facts have been proven by clear and convincing evidence. “1. November 1995 through August 1996, Angela Floyd (‘Respondent’) was employed as Office Manager for the ‘Office of Attorney Frederick D. Iverson, Columbus, Ohio.’ “2.

September 1996, Frederick D. Iverson (‘Iverson’) moved to the District of Columbia to join Respondent, who had begun attendance at Georgetown University Law School “3. Respondent and Iverson married each other in 1998 and Respondent chose to continue to use her maiden name. “4. Iverson started his practice in the District of Columbia in 1998. “5. Respondent was admitted to the practice of law in Maryland on December 14, 1999 after graduating from Georgetown University Law School in May 1999. “6.

The bulk of Iverson’s clients during this time came from court-appointed Criminal Justice Act cases. “7. In 1998, Iverson’s gross income from his law practice was $17,172 and his net income was $4,990. ²⁴¹ “8. In 1999, Iverson’s gross income from his law practice was $57,761 and his net income was $32,358. “9. In 2000, Iverson’s gross income from his law practice was $152,010 and his net income was $101,182. “10.

After Respondent graduated from law school, she assisted her husband, Frederick Iverson, Esquire (‘Iverson’) in his solo criminal defense practice. “11. Respondent was not paid by Iverson for her work with him. “12. Iverson practiced primarily from his office at his and Respondent’s home located at 643 Pennsylvania Avenue, SE, Washington, D.C. “13. Iverson reasonably used 1025 Connecticut Avenue, NW, Suite 1012, Washington, DC 20036, as a business address. “14.

Through it was Iverson’s desire that Respondent would join Iverson in his practice of law on a permanent basis, early 2000, Respondent decided to apply for positions outside of Iverson’s office. “15. In February of 2000, Respondent applied for an entry level job at the Federal Trade Commission (‘the Commission’) as an attorney. “16. With her Commission application, Respondent submitted a résumé that listed her current employment as a position with the ‘Law Office of Frederick Iverson, Washington, DC,’ without disclosing that he was her husband. On the second page of the résumé, Respondent listed ‘Attorney Frederick Iverson, 1025 Connecticut Avenue, NW, Suite 1012, Washington, DC 20036’ as a reference, without disclosing that he was her husband. “17.

In the résumé that was submitted to the Commission, Respondent did not disclose that she had worked for her husband in Columbus, Ohio during the period of November 1995 through August 1996. “18. Respondent’s Ohio employment with Iverson was listed on a résumé that she submitted to the Securities & Exchange Commission in 1997. ²⁴² “19. Even though Respondent omitted her Ohio employment with Iverson in the résumé she submitted to the Commission, Respondent listed in that same résumé jobs that she held before she had first worked for Iverson. “20. Respondent interviewed for the Commission job with Joni Lupovitz, Esquire (‘Lupovitz’) and later with Elaine Kolish, Esquire, who was an associate director of the Commission’s Bureau of Enforcement (‘Kolish’). “21.

During the hiring process, March 13, 2000 Lupovitz called Iverson as part of a reference check. “22. Iverson gave Respondent a strong recommendation, stating that he recommended her 100 percent’ and that he wanted her to join his practice. “23. During his conversation with Lupovitz, Iverson did not disclose that he was Respondent’s husband. “24. Shortly after March 13, 2000, the Commission decided to offer Respondent a position as an attorney at a grade level of GS-11, step 1, which carried a salary of $42,724 per year. “25.

Lupovitz called Respondent to communicate the offer. During this conversation, Lupovitz advised Respondent that in order for consideration of hiring her at a salary higher than that for the grade level of GS-11, step 1, she would have to have a competing job offer, or be currently employed at a higher salary. “26. The Commission’s decision to hire Respondent was based in part, but not exclusively on Iverson’s reference on her behalf; however, it cannot be said that without his recommendation Respondent would not have been offered the position with the Commission. 1 ²⁴³ “27. Respondent wanted to be paid a higher salary than $42,724 per year that accompanied that for grade level GS-11, step 1 and requested of Iverson that he put in writing his officer of employment with him. “28.

On March 16, 2000, Iverson composed a letter on stationary displaying his 1025 Connecticut Avenue N.W., Washington, D.C., office address, stating: Angela Floyd 643 Pennsylvania Avenue, SE Washington, D.C. 20003 Dear Ms. Floyd: This letter is written to memorialize the salary terms of my offer to you. Per our discussion, I am prepared to offer you a monthly salary of $4500 per month, or $54,000 per year. This salary is based on your completing a minimum average of six criminal misdemeanor cases per month. This arrangement would remain in effect for one year and, thereafter, be open to renegotiation.

Regardless of where your future employment decisions take you, I wish you the best of luck in your career. Sincerely, /S/ Frederick D. Iverson, Esq. “29. Respondent was aware of the contents of Iverson’s letter before she delivered it to the Commission. “30. Respondent delivered Iverson’s letter to Lupovitz, who in turn gave it to Kolish. “31.

On March 28, 2000, by memorandum, Kolish requested of the Commission’s Director of Human Resources, authority to offer Respondent a position at GS-11, step 7 with the accompanying annual salary of $51,269. “32. The subject of Kolish’s March 28, 2000 memorandum was ‘Justification for hiring Angela Floyd as a GS-11, step 7.’ The memorandum begins, The Division of Enforcement seeks to hire Angela Floyd, a May 1999 graduate of Georgetown University Law ²⁴⁴ Center, as a staff attorney. Since August 1998, Ms. Floyd has worked in the Law Office of Frederick Iverson, which has made an employment offer to her at a salary of $54,000 per year. A copy of the written offer letter is attached.

Therefore, to compete with that offer and given Ms. Floyd’s excellent credentials, we recommend that she be offered the grade of GS-11, step 7, at a salary of $51,269. “33. Kolish received the requested authority. Respondent was offered a position at GS-11, step 7, and began work at the Commission shortly afterwards. “34. Respondent and Iverson elected not to disclose their marital relationship because they did not consider it relevant to the hiring decision. “35.

In various employment documents, required to be completed for purposes unrelated to Respondent’s actual hire, Respondent identified Iverson as her husband when that information was specifically requested. “36. Kolish and Lupovitz did not become aware of the relationship between Respondent and Iverson until 2004, when they were advised of the fact by the Commission’s Office of General Counsel. “37. After the discovery that Respondent and Iverson were married, a meeting was held in Kolish’s office between Kolish, Lupovitz, Respondent and John Graubert, Esquire of the Office of General Counsel. “38. At the meeting, Respondent was advised that Kolish and Lupovitz viewed her failure to disclose her marriage to Iverson as misleading and advised her to be more concerned about appearances in the future. “39.

No formal disciplinary action was taken; however, the matter was referred to the Attorney Grievance Commission of Maryland. “40. For reasons that do not relate to the issues raised in the Petition for Disciplinary or Remedial Action, Respondent is no longer employed by the Commission. ²⁴⁵ Discussion “Rule 8.4 (c) provides It is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation. “Petitioner contends that Respondent’s concealment of her marital relationship with Iverson was an implicit representation to the Commission that Iverson was someone with whom she had only a business relationship, and that this representation was deceitful and dishonest because it led the Commission to believe that Iverson’s recommendation and competing job offer were made by someone who was unbiased and who had no financial stake in the amount of money offered to her by the Commission. “Respondent argues that § 720.901 of the Code of Federal Regulations (“C.F.R.”) prohibits the federal government from discriminating against her on the basis of her marital status. She then asserts that this regulation excused her from disclosing that the individual who was providing a job recommendation and a competing job offer was her husband. “C.F.R. § 720.901 provides Equal opportunity without regard to politics or marital status. (a) In appointments and position changes.

In determining the merit and fitness of a person for a competitive appointment or appointment by non-competitive action to a position in the competitive service, an appointing officer shall not discriminate on the basis of the person’s political affiliations, except when required by statute, or on the basis of marital status. (b) In adverse actions and termination of probationers. An agency may not take an adverse action against an employee covered by part 752 of this chapter, not effect the termination of a probationer under part 815 of this chapter, (1) for political reasons, except when required by statute, or (2) because of marital status. ²⁴⁶ “Respondent did not explicitly misstate any fact. However, the law recognizes that deceit can be based on concealment of material facts as well as on overt misrepresentations.

Levin v. Singer, 227 Md. 47, 64 , 175 A.2d 423 (1961) (“Where concealment effectively suppresses material facts with the object of creating or continuing a false impression, a cause of action based on fraud may arise.”) In Brodsky v. Hull, 196 Md. 509, 515-16 , 77 A.2d 156 (1950), the Court of Appeals said that “[a] fact is material if its existence or nonexistence is a matter to which a reasonable man would attach importance in determining his choice of action in the transaction.... ” While Petitioner does not have to prove the elements of fraud to establish a violation of Rule 8.4(c), these principles are useful in assessing Respondent’s conduct. “The Court accepts Respondent and Iverson’s explanation as to why they elected not to advise the Commission that they were married. However, acceptance of that explanation does not resolve the question of whether their marriage was a fact that would have been material to either the hiring of Respondent, or the salary at which she was hired. “The letter written on Iverson’s office stationary with his Connecticut Avenue address to Respondent at their home address was clearly intended to be relied on for the purpose of attaining a salary greater than that to which Respondent, as a new hire, would have otherwise been entitled to receive. It was intended to be relied on and failure to disclose the actual relationship between Respondent and Iverson deprived the Commission of the opportunity to explore the bonafides of the offer. “No reasonable person would accept that a relationship of spouse and spouse would not be relevant to whether an offering is to be relied upon as the product of an arms length relationship between the objects of an inquiry. Iverson’s letter begins ‘Dear Ms. Floyd’, as though addressed to someone with whom Iverson had only a business relationship.

The letter states the basis for the salary offer and sets out a standard of six cases per month that Respondent ²⁴⁷ would be expected to handle to earn it. In the last sentence of the first paragraph, Iverson sets out that the salary will be subject to ‘renegotiation’ at the end of one year. The concept of negotiation clearly creates the impression that the relationship between Respondent and Iverson was arm’s length. “An interesting feature of the letter is its concluding sentence, which states, “Regardless of where your future employment decisions take you, I wish you the best of luck in your career.” Whatever personal message Iverson may have intended to convey to Respondent, the only reasonable conclusion from this sentence is that the two would have no further day-to-day contact if Respondent decided to work for the Commission. 2 “Respondent’s removal of the first period of employment with Iverson from her résumé concealed the fact that they had known each other for some time before 1998, the beginning year of Respondent’s second period of employment with Iverson. A comparison of the résumé shows that on both résumés, Respondent listed three jobs she had before her first employment with Iverson, none of which was in the legal field.

Inclusion of the first period of employment would have alerted the careful résumé reviewer to the fact that Respondent and Iverson had both moved to the District of Columbia from Columbus, Ohio, and would have led the careful résumé reviewer to question Respondent or Iverson about the coincidence and, if answered honestly, either would have disclosed the relationship between employer and employee. While one has to acknowledge great discretion in marshalling information to be included in a résumé, selective exclusion of information relevant to the weight to be given to various references is perilous when that which is excluded takes on more relevance with regard to benefits sought from the person from whom the information would be relevant. ²⁴⁸ “The Court elects not to question whether Respondent’s value as reflected in Iverson’s letter to Respondent. Indeed, the Commission could have determined that Respondent’s income-making capacity at that moment in her career was equivalent to that expressed in Iverson’s letter. But it is clear that such an impression, alone, would not have allowed Respondent’s hire at an above entry-level salary.

The failure to disclose the relationship between Iverson and Respondent had the natural consequence of depriving the Commission of an independent determination of the bona fides of Iverson’s offer and Respondent reaped the intended benefit of the letter, the higher salary. “The effect of Iverson’s letter was to induce Kolish to seek authorization to offer Respondent a higher salary than that which was proposed in the original offer. While Kolish’s March 28, 2000 memorandum refers to additional factors, all of them were in existence when the original offer was made. It is clear that Iverson’s job offer was the principal motivating factor in Kolish’s decision to seek a greater salary for Respondent. In short, Respondent knowingly concealed from the Commission that her job reference and her competing job offer came from her husband, knowing that the agency would assume that they came from someone who had no bias or ulterior motive.

By suppressing a material fact, Respondent created a false impression and furthered it with the letter of March 16, 2000 to reap the benefit of a higher salary. Levin v. Singer, 227 Md. at 64 , 175 A.2d 423 . This conduct was deceitful. “The Court is unable to see the connection urged by Respondent between her lack of disclosure and C.F.R. § 720.901. To disclose an intimate relationship between one who is identified as a person to be contacted to assess one’s qualifications or one who has been identified as making a job offer to be honestly received as a basis for a salary ²⁴⁹ above that to which one might otherwise be qualified would not run afoul of the above-quoted regulation. “Fully aware of the importance of references and the central role that a pending job offer would have on her starting salary, Respondent elected to involve her husband in her job application.

Having done so, Respondent’s failure to disclose that she and Iverson were married to each other, deprived the Commission of information material to its ability to make an appropriate assessment of Iverson’s recommendation and job offer. C.F.R. § 720.901 cannot be read to shield Respondent from the prohibition of Rule 8.4(c) that she not engage in conduct involving deceit or misrepresentation. Conclusion “On the basis of the foregoing Findings of Fact and Discussion, the Court concludes that Respondent violated Rule 8.4(c) of the Rules of Professional Conduct by engaging in conduct involving “deceit or misrepresentation”. The deceit or misrepresentation was Respondent’s failure to disclose to the Federal Trade Commission the fact that Frederick D. Iverson, Esquire was her husband.

Respondent’s failure to make this disclosure was exacerbated by her request to Iverson to produce a letter offering her a job at a salary above the entry-level for the position offered her by the Commission. This letter was necessary for Respondent to obtain a beginning salary of $51,269.00, rather than the $42,724.00, the Commission was otherwise authorized to offer Respondent. The relationship between Respondent and Iverson was material to the ability of the Commission to determine the bona fides of the job and salary offered in the letter provided by Iverson, an employer who had earlier given Respondent a “100% recommendation”. Recommendation “It is recommended that Respondent be reprimanded for violation of Rule 8.4(c), rather than suspended or disbarred, in light of the following mitigating circumstances: ²⁵⁰ “1) Respondent’s husband actually desired at the time of the deceitful conduct that she would work with him; “2) Sufficient other bases existed for the decision of the Commission to hire Respondent; “3) It was possible that, had Respondent disclosed her relationship with Iverson, the Commission may have determined that his job offer to Respondent was bona fide and sufficient to merit the salary at which Respondent was hired; and “4) The Commission was sufficiently satisfied with her performance as an agency attorney that it elected to confront Respondent and to continue her employment with the agency upon discovery of the deceit.

(emphasis in original). DISCUSSION The hearing judge found that Respondent had violated Rule 8.4(c) by “engaging in conduct involving ‘deceit or misrepresentation’.” Neither Petitioner nor Respondent took exception to the hearing judge’s findings of fact. Therefore, we accept the hearing court’s findings of fact, as established, for the purpose of determining the appropriate sanction. Maryland Rule 16-759(b)(2)(A); Attorney Grievance Comm’n v. Logan, 390 Md. 313, 319 , 888 A.2d 359, 363 (2005).

We note that this Court has original and complete jurisdiction over attorney disciplinary proceedings. 4 Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 564 , 846 A.2d 353, 369-70 (2004); Attorney Grievance Comm’n v. Awuah, ²⁵¹ 374 Md. 505, 520 , 823 A.2d 651, 660 (2003); Attorney Grievance Comm’n v. Jaseb, 364 Md. 464, 475 , 773 A.2d 516, 522 (2001); Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 470 , 671 A.2d 463, 473 (1996). From our independent review of the record, any conclusions of law made by the hearing judge are subject to our de novo review. Mininsohn, 380 Md. at 564 , 846 A.2d at 370 (2004); Awuah, 374 Md. at 520 , 823 A.2d at 660 . Respondent took exception to the hearing judge’s conclusion of law.

She excepts to Judge