Attorney Grievance Commission v. Kourtesis

HARRELL, J. This reciprocal disciplinary action involves Nikolaos Pana-giotis Kourtesis, who was admitted to the Bar of this Court on 17 December 1997 and to the Bar of the District of Columbia on 14 November 2005. On 14 February 2013, the District of Columbia Court of Appeals suspended indefinitely Kourtesis from the practice of law in the District of Columbia, and ordered further that pending disciplinary charges filed against him in the District be held in abeyance due to his self-professed disability preventing him from defending himself (or assisting his counsel in the defense) against the charges. On ⁴³⁹ 10 March 2013, the Attorney Grievance Commission of Maryland, through Bar Counsel, filed, pursuant to Maryland Rules 16-751 and 16-773, a Petition for Disciplinary or Remedial Action, attaching to the Petition a certified copy of the 14 February 2013 Order of the District of Columbia Court of Appeals. On 20 March 2013, we issued a Show Cause Order.

Bar Counsel responded on 17 May 2013, asking that reciprocal sanction (indefinite suspension) be imposed against Kourtesis in this State. In response, Kourtesis urged us to refer the matter to a judge of the Circuit Court for Montgomery County (where Respondent maintains an office for the practice of law) for an evidentiary hearing prior to acting on the request by Bar Counsel for his indefinite suspension. We hold that a separate hearing to determine his fitness to practice law in this State is inappropriate at present. Rather, we order that Kourtesis be placed on inactive status, the most analogous remedy in this State, until further order by this Court.

I. UNDISPUTED FACTS A. Proceedings in the District of Columbia On 25 May and 12 July 2012, counsel for the Board on Professional Responsibility filed “Specifications of Charges” against Kourtesis in the District of Columbia based on allegations arising from his representation of certain clients in personal injury matters. 1 On 7 August 2012, Kourtesis filed his Answer. Prior to a merits adjudication of these charges, Kourtesis petitioned in December of 2012 for his suspension and the abeyance of the pending disciplinary charges due to his disability, pursuant to a special procedure in the District of Columbia. D.C. Bar Rule XI, § 13(e), which governs this procedure, provides: ⁴⁴⁰ If, in the course of a disciplinary proceeding, the attorney claims to be suffering from a disability because of mental or physical illness or infirmity, or because of addiction to drugs or intoxicants, which makes it impossible for the attorney to present an adequate defense, the Court shall enter an order immediately suspending the attorney from the practice of law until a determination is made of the attorney’s capacity to practice law in a proceeding under subsection (c) of this section. As grounds for his motion, Kourtesis asserted that he suffered from depression, making it impossible (indefinitely) to defend himself in the disciplinary matters or to assist his counsel in the defense against the charges.

Pursuant to D.C. Board Rule 15.3(a)(iii), 2 Kourtesis included, in support of his assertion, letters from Walker Lyerly, M.D., who diagnosed Kour-tesis as having a Major Depressive Disorder, and Dan Schwarz, Psy.D. (a licensed clinical psychologist), who diagnosed Kourtesis with Major Depression, Recurrent, Moderate. Both letters asserted that Kourtesis’s depression rendered him unable to assist his counsel in defending himself in the disciplinary proceedings in the District of Columbia. Additionally, Kourtesis filed a signed “Acknowledgement of Disability,” dated 12 December 2012, in which he acknowledged that “during the period of ‘March, 2010 — Present,’ I suffered from a disability ... by reason of ‘depression.’ ” 3 ⁴⁴¹ On 31 December 2012, the Board on Professional Responsibility, acting through its Chair and under D.C. Bar Rule XI, § 13(c), 4 petitioned the District of Columbia Court of Appeals “to immediately suspend” Kourtesis, pursuant to D.C. Bar Rule XI, § 13(e), on the grounds of his “motion for suspension and abeyance of disciplinary matters due to disability, and supporting documentation, filed with the Board pursuant to D.C. Bar R. XI, §§ 13(c) and (e) and Board Rule 15.3.” In this petition, the Board on Professional Responsibility stated that it did not oppose Kourtesis’s motion, but noted additionally: Bar Counsel’s response asserts that it “lacks knowledge” of how [Kourtesis]’s alleged disability affects his ability to defend himself, but it “admits that [Kourtesis] has provided medical support for this claim.” Bar Counsel also notes that [Kourtesis]’s counsel has confirmed that [Kourtesis] appears not to be able to assist counsel with his defense of these disciplinary matters.

Upon consideration of the Board on Professional Responsibility’s petition, the District of Columbia Court of Appeals ordered, on 14 February 2013: ⁴⁴² [Kourtesis] is indefinitely suspended from the practice of law in the District of Columbia, effective immediately, and that any pending matters be held in abeyance pursuant to D.C. Bar Rule XI, § 13(e) until further order of the court pursuant to D.C. Bar Rule XI, § 13(c). The Order provided further that his “reinstatement to the District of Columbia Bar shall be in accordance with the provisions of D.C. Bar Rule XI, § 13(g).... ” Subsection (g) provides: Reinstatement of Incapacitated Attorney. An attorney suspended under this section may apply for reinstatement once a year, or at such shorter intervals as the Court may direct in its order of suspension or any modification thereof. Upon the filing of such application, the Court may take or direct such action as it deems appropriate, including the examination of the attorney by such qualified medical experts as the Court shall designate.

In its discretion, the Court may direct that the expense of such an examination shall be paid by the attorney, and that evidence be presented establishing proof of the attorney’s competence and learning in the law, which may include certification by the bar examiners of the attorney’s successful completion of an examination for admission to practice. An application for reinstatement under this subsection shall be granted by the Court upon a showing by the attorney, by clear and convincing evidence, that the disability has ended and that the attorney is fit to resume the practice of law. D.C. Bar Rule XI, § 13(g) (emphasis added). See also D.C. Bar Rule XI, § 16(b) (“Reinstatement of attorneys suspended for disability.

An attorney who has been suspended indefinitely because of disability under section 13 of this rule may move for reinstatement in accordance with that section, but reinstatement shall not be ordered except on a showing by clear and convincing evidence that the disability has ended and that the attorney is fit to resume the practice of law.”). At the 5 December 2013 show cause hearing in the reciprocal proceedings initiated in Maryland, Kourtesis’s counsel ⁴⁴³ reported that Kourtesis had not filed for reinstatement in the District of Columbia, but planned on seeking reinstatement at some non-specific time in the future. B. Reciprocal Proceedings in Maryland On 10 March 2013, the Attorney Grievance Commission of Maryland (“Bar Counsel”) filed, pursuant to Maryland Rules 16-751 and 16-773, a Petition for Disciplinary or Remedial Action, attaching a certified copy of the 14 February 2013 Order by the District of Columbia Court of Appeals. We issued a Show Cause Order.

On 17 May 2013, Bar Counsel responded, asking that a reciprocal sanction (indefinite suspension) be imposed. 5 In his Verified Response to Show Cause Order, Kourtesis argued that no reciprocal action should be imposed upon him in Maryland because exceptional circumstances exist under Rule 16-773(e)(3) and (5). These subsections provide: (e) Exceptional circumstances. Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that: (3) the imposition of corresponding discipline would result in grave injustice [or] (5) the reason for inactive status no longer exists. Kourtesis argues first that the circumstances which led to his submitting voluntarily to indefinite suspension of his license to practice in the District of Columbia “were all related to a perfect storm of emotional issues in which he was ensnared.” 6 ⁴⁴⁴ According to Kourtesis’s counsel at oral argument, the perfect storm has passed now and, thus, the reason for his suspension no longer exists.

Because the exceptional circumstances exception of Rule 16-773(e)(5) applies assertedly, Kourtesis requests that this Court refer the matter to a judge of the Circuit Court for Montgomery County (a jurisdiction in which he maintains an office) for an evidentiary hearing prior to acting on the request by Bar Counsel for his suspension. Kourtesis averred additionally that the exceptional circumstances exception of Rule 16-773(e)(3) (“grave injustice”) applies. On 5 December 2013, this Court held a hearing to consider the petition, show cause responses, and argument of counsel.

II

DISCUSSION Maryland Rule 16-773 governs “reciprocal” attorney grievance cases. “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).” Md. Rule 16-773(b). The Court issues a show cause order pursuant to subsection (c). After the parties respond to the show cause order, the Court “may immediately impose corresponding discipline or inactive status,” may assign the matter to a judge for a hearing, “or may enter any other appropriate order.” Md. Rule 16-773(f). At the current juncture in the present case, the parties have responded to the show cause order and the Court is confronted with determining an appropriate order.

Subsection (f) provides this Court with a wide-range of options for an appropriate response. ⁴⁴⁵ A. Deference to the Factual Findings or Adjudications of the Originating Jurisdiction. In “reciprocal” attorney grievance cases, this Court gives deference generally to the factual findings or adjudications of the originating jurisdiction pursuant to Md. Rule 16-778(g), which provides: Conclusive effect of adjudication. Except as provided in subsections (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. Whitehead, 390 Md. 663, 668-69 , 890 A.2d 751, 754 (2006) (citing Attorney Grievance Comm’n v. Weiss, 389 Md. 531 , 886 A.2d 606 (2005); Attorney Grievance Comm’n v. Scroggs, 387 Md. 238, 249 , 874 A.2d 985, 992 (2005); Attorney Grievance Comm’n v. Ayres-Fountain, 379 Md. 44, 56 , 838 A.2d 1238, 1245 (2003); Attorney Grievance Comm’n v. Cafferty, 376 Md. 700, 703 , 831 A.2d 1042, 1045-46 (2003)). “In that regard, this Court’s cases are clear, pursuant to Rule 16-773(g), we do not relitigate factual matters or a final adjudication by another appropriate tribunal in a disciplinary [or remedial] proceeding.” Attorney Grievance Comm’n of Maryland v. Haas, 412 Md. 536, 545-46 , 988 A.2d 1033, 1039 (2010) (citing Attorney Grievance Comm’n v. Sabghir, 350 Md. 67, 68 , 710 A.2d 926, 926 (1998); Attorney Grievance Comm’n v. Gittens, 346 Md. 316, 325 , 697 A.2d 83, 88 (1997); Attorney Grievance Comm’n v. Willcher, 340 Md. 217, 221-222 , 665 A.2d 1059, 1061 (1995); Attorney Grievance Comm’n v. Sparrow, 314 Md. 421 , 550 A.2d 1150 (1988)). In the present case, although the District of Columbia Court of Appeals has not adjudicated finally the disciplinary charges ⁴⁴⁶ against Kourtesis, the court reached an interlocutory adjudication that Kourtesis is indefinitely incapacitated, ie., unfit “to practice law because of mental infirmity or illness,” see D.C. Bar Rule XI, § 13(c). 7 In keeping with the spirit of the comity principles expressed in Md. Rule 16-773(g), we adopt the District of Columbia’s judicial determination that Kourtes-is was (and remains) incapacitated indefinitely. B. Determining the Appropriate Reciprocal Sanction or Remedy. In determining the appropriate sanction or remedy in reciprocal cases, this Court has “a duty to ‘assess for itself the propriety of the sanction imposed by the other jurisdiction.’” Whitehead, 390 Md. at 672 , 890 A.2d at 756 (citing Attorney Grievance Comm’n v. Steinberg, 385 Md. 696 , 704 n. 9, 870 A.2d 603 , 608 n. 9 (2005); Attorney Grievance Comm’n v. Ayres-Fountain, 379 Md. 44, 57 , 838 A.2d 1238, 1246 (2003)). “[W]e are prone, but not required, to impose the same sanction the original jurisdiction imposed.” Id., 390 Md. at 671 , 890 A.2d at 756 (citing Weiss, 389 Md. at 546 , 886 A.2d at 615 ).

Thus, when considering the appropriate sanction or remedy in a reciprocal attorney grievance case, “ ‘we look not only to the sanction imposed by the other jurisdiction but to our own cases as well.’ ” Id., 390 Md. at 672 , 890 A.2d at 756 (emphasis added in Whitehead) (quoting Weiss, 389 Md. at 548 , 886 A.2d at 616 ) (some internal quotation marks omitted). Although we will reach often the same conclusion as the original jurisdiction and impose an identical sanction or remedy, see id., 390 Md. at 672-73 , 890 A.2d at 757 (citing Willcher, 340 Md. at 220 , 665 A.2d at 1060 ; Attorney Grievance Comm’n v. Roberson, 373 Md. 328, 357 , 818 A.2d 1059, 1077 (2003); Cafferty, 376 Md. at 728 , 831 A.2d at 1059 ; Attorney ⁴⁴⁷ Grievance Comm’n v. Moore, 301 Md. 169, 171 , 482 A.2d 497, 498 (1984)), “[w]hen our cases ... clearly demonstrate that we would apply a different sanction — had the conduct occurred or the case originated here — we need not follow the original jurisdiction’s determination.” Id., 390 Md. at 673 , 890 A.2d at 757 . The appropriate sanction “ ‘will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct [or incapacity].’ ” Id., 390 Md. at 672 , 890 A.2d at 756 (emphasis added in Whitehead) (quoting Weiss, 389 Md. at 548 , 886 A.2d at 616 ) (some internal quotation marks omitted). The rationale underlying our duty to assess the appropriate sanction or remedy for ourselves is that, “[e]ven though attorney discipline is for the primary purpose of protecting the public, [not the punishment of the attorney,] the bar and public policy are served best by determinations consistent with other Maryland sanctions for similar misconduct.” Id., 390 Md. at 674 , 890 A.2d at 757 .

We recognize that “ ‘the public interest is served when this Court imposes a sanction [or remedy] which demonstrates to members of the legal profession the type of conduct that will not be tolerated....’” Id., 390 Md. at 674 , 890 A.2d at 758 (quoting Attorney Grievance Comm’n v. Sperling, 380 Md. 180, 191 , 844 A.2d 397, 404 (2004)) (some internal quotation marks omitted). Moreover, in imposing sanctions and remedies consistent with other Maryland determinations, 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 [the profession’s] image into disrepute.’” Id. (quoting Sperling, 380 Md. at 191 , 844 A.2d at 404 ) (some internal quotation marks omitted). As we explained further in Whitehead : [T]he public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules....

This goal of effecting general and specific deterrence is best achieved by ensuring that every member of the bar clearly understands the standards of conduct to which he or she is expected to ⁴⁴⁸ adhere and the consequences of failing to meet those standards. One of our goals, in maintaining these standards is to ensure that consistent determinations as to sanctions for similar misconduct are reached in our cases. Whether the case arises in this jurisdiction, or it comes to us as a “reciprocal” discipline case, does not change this Court’s duty to apply consistent treatment, i.e., sanctions [and remedies]~as far as is possible. Our position on sanctions [and remedies] in “reciprocal” cases has to do with ensuring consistency, which in turn provides the appropriate deterrent for incompetent, unscrupulous or unethical lawyers.

Nor do we abandon well reasoned principles of comity in reaching our decision. As required by Rule 16-773(g), the heaviest weight is given to our sister jurisdictions’ factual findings. From them we rarely stray. We deviate from their sanctions, however, when the history of our eases warrants a substantially different disposition....

Id., 390 Md. at 674-75 , 890 A.2d at 758 (emphasis added in Whitehead) (internal citations and quotation marks omitted). With the foregoing in mind, we turn now to determine what sanction or remedy is imposed typically in Maryland for an attorney pleading incapacity due to mental illness and seeking an abeyance or stay of the adjudication of pending disciplinary charges. Because Maryland does not have a special procedure directly analogous to that provided in D.C. Bar Rule XI, § 13, we approach our analysis by providing first an overview of the three paths by which this Court may find an attorney incapacitated. One path is provided for in reciprocal attorney grievance eases (such as this one).

Pursuant to Maryland Rule 16-773, this Court may find that an attorney is incapacitated and order that, inter alia, corresponding