Attorney Grievance Commission v. Levin

ADKINS, J. Petitioner, the Attorney Grievance Commission of Maryland (“AGC”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“Petition”) against Respondent, Ronald Marc Levin. Bar Counsel alleged that Levin, in connection with his employment at the law firm of Joseph, Greenwald & Laake, P.A. (“JGL”) from December 2010 through November 2011, engaged in professional misconduct as defined by Md. Rule 16-701(i), violating sections (a), (b), (c) and (d) of Rule 8.4 of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”), as adopted by Md. Rule 16-812. Rule 8.4 of the MLRPC states, in pertinent part: Rule 8.4 Misconduct.

It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice[.] Following a hearing before the Circuit Court for Montgomery County, the hearing judge found that Levin violated Rule ²¹⁵ 8.4(a) and Rule 8.4(c), but did not violate Rule 8.4(b) or Rule 8.4(d). THE HEARING JUDGE’S CONCLUSIONS The disciplinary hearing was held before a judge of the Circuit Court for Montgomery County. Both parties appeared and presented evidence. The hearing judge made the following findings of fact based upon clear and convincing evidence: The following facts are not in dispute.

Respondent Levin became a member of the Maryland Bar on June 17, 1992. The Respondent practices exclusively bankruptcy law, and appears in bankruptcy courts in both Maryland and the District of Columbia. On November 1, 2010, Respondent signed an Employment Agreement with JGL. According to the terms of the Agreement, Respondent’s employment with JGL would commence on December 1, 2010 and continue for a period of one year.

The Agreement also indicated that Respondent’s salary would be 50% of his net originated income (“NOI”). During the hearing on April 25, 2012, David Bulitt, Esquire, a shareholder and Assistant Managing Director with JGL, testified that NOI is defined as the attorney’s gross fee income from all cases and clients originated by that attorney minus certain charges (costs and other attorneys working on the cases). Respondent’s initial salary could not be determined in advance, so his initial salary was set at $200,000. This salary would be reviewed on a quarterly basis by the firm’s Director of Finance and the firm’s Executive Committee, per the terms of the Agreement, and adjustments could be made based on actual performance.

The Respondent worked for JGL from December 2010 to October 2011, and during the course of Respondent’s employment, Respondent made false statements to Mr. Bulitt with respect to the number of cases he was handling, the number of legitimate bills he had sent, and his expectation of payment. Mr. Bulitt, who has been a personal acquaintance of the Respondent since childhood days, conducted the ²¹⁶ quarterly reviews of the Respondent’s work performance. During these reviews, as well as on other occasions, Respondent misrepresented to Mr. Bulitt the size of his caseload and the fee amounts he expected to receive from such work. In furtherance of these oral misrepresentations, the Respondent created fictitious clients and drafted paperwork for these fictitious clients and showed these documents to Mr. Bulitt.

In October 2011, the Respondent received a job offer from another law firm and notified JGL of his intention to resign. The [Respondent left his employment with JGL in October 2011. Based on a final review conducted by Mr. Bulitt of the Respondent’s work performance, a significant deficiency was discovered between Respondent’s initial salary and his actual earnings for the firm. It was determined that the Respondent owed the firm $151,191.17 based on the deficiencies in his client billings.

The Respondent did not contest the deficiency and paid this debt in full to JGL on December 29, 2011. Mr. Bulitt testified that, had the Respondent been candid with him about his actual work performance and client billings, the firm would have reduced the Respondent’s $200,000 salary accordingly. This Court accepts that statement as true because, if salary adjustments were not going to be made, Mr. Bulitt would not have met with the Respondent until the end of the year. Furthermore, the Respondent feared a decrease in his pay and went to great lengths in order to deceive the firm.

The Respondent concedes [that] he has violated sections (a) and (c) of Rule 8.4 of the Maryland Lawyers’ Rules of Professional Conduct. Therefore, the issues in dispute in this case are: whether the Respondent’s misrepresentations to Mr. Bulitt and JGL and the falsified client billings he created violated sections (b) and (d) of Rule 8.4, and what if any aggravating and/or mitigating factors exist. Because of the Respondent’s willful misrepresentations and dishonest conduct, JGL continued paying the Respondent installments of his $200,000 annual salary. ²¹⁷ The Court finds that the Respondent’s motivations for his misrepresentations to JGL were his need to support himself and his family, and to avoid embarrassment. The Court finds that the Respondent’s misrepresentations were deliberate and continuous throughout his employment with JGL.

The Respondent was fully aware of the wrongfulness of his acts and specifically intended to conceal such conduct. The Respondent did not elect to self-report his deficient performance to the firm prior to his departure from JGL and JGL’s detection of his deceptive practices. Mr. Bulitt’s and the Executive Committee’s final audit revealed the extent of the Respondent’s dishonest conduct. Furthermore, it was only after JGL threatened to report the Respondent’s conduct to the Attorney Grievance Commission that the Respondent reported his activities to Maryland Bar counsel.

Once the Respondent was made aware of the financial toll of his poor performance at JGL[,] the Respondent paid the entire debt of $151,191.17 within two months. As a Member of the Maryland Bar and an employee of JGL, it was the Respondent’s obligation to maintain honesty and candor toward his employer with respect to his performance and financial compensation. Conclusions of Law Maryland Rule 16-757 governs a disciplinary hearing before the Circuit Court. The Petitioner, the Attorney Grievance Commission, has the burden of proving the averments of the petition by clear and convincing evidence.

Maryland Civil Pattern Jury Instruction 1:9 gives the definition of clear and convincing evidence as follows: To be clear and convincing, evidence should be “clear” in the sense that it is certain, plain to the understanding, and unambiguous and convincing in a sense that it is so reasonable and persuasive as to cause you to believe it. This burden of proof requires more than a preponderance of the evidence, but less than beyond a reasonable doubt. Here, the Petitioner is seeking to prove that Respondent committed four acts of misconduct under Rule 8.4. The ²¹⁸ Court considers each provision separately.

The Respondent concedes that he violated sections (a) and (c) and this Court finds that there is ample evidence to support that conclusion. Rule 8.4(a) is a catch-all provision that is violated when any other Rule of Professional Conduct is violated. The Respondent concedes his violation of Rule 8.4(a) due to his violation of Rule 8.4(c). Because the factual circumstances and case law presented by the parties support the Respondent’s violation of section (c), the Court finds by clear and convincing evidence that the Respondent also violated Rule 8.4(a).

Rule 8.4(b) provides that misconduct exists where an attorney commits a “criminal act” affecting the attorney’s honesty, trustworthiness or fitness as an attorney “in other respects.” For purposes of section (b), an actual conviction is unnecessary to demonstrate that the Respondent’s [sic] committed misconduct. The Petitioner identifies the “criminal act” committed under these circumstances as Unauthorized Control Over Property — By Deception, Section 7-104(b) of the Maryland Criminal Code. This provision states: (b) A person may not obtain control over property by willfully or knowingly using deception, if the person: (1) intends to deprive the owner of the property; (2) willfully or knowingly uses, conceals, or abandons the property in a manner that deprives the owner of the property; or (8) uses, conceals, or abandons the property knowing the use, concealment, or abandonment probably will deprive the owner of the property. The Petitioner argues that the Respondent deprived the firm of its property (money) by creating false clients and client billings.

It further contends that as a direct consequence of the Respondent’s fraudulent conduct and misrepresentations, JGL continued to pay the Respondent a salary ²¹⁹ that he had not earned according to the terms of the Employment Agreement. The Respondent counters that, as “deprive” is defined under Md.Code Ann., Crim. Law § 7-101(c), the Respondent had no intent to deprive JGL of the property, either permanently or for a period of time that was sufficient to appropriate a portion of its value. Instead, he was aware that, upon financial review by Mr. Bulitt, the Respondent would be indebted to the firm for any deficiency between his salary and his NOI, and he would merely have to repay the firm.

The Court finds that the Petitioner has not proven by clear and convincing evidence that the Respondent violated Rule 8.4(b). The evidence presented by the Petitioner demonstrates that the Respondent intended to misrepresent his client billings in order to maintain his initial salary. However, the Petitioner failed to prove that the Respondent intended to deprive the firm of its property permanently or for a period of time sufficient to dispose of a part of its value. The Respondent’s acts did not rise to the level of a criminal act.

The Respondent’s prompt repayment of his entire debt is a mitigating factor only and does not disprove intent to commit a criminal act. Nevertheless, the Petitioner did not meet its burden of proof. Rule 8.4(c) states that it is professional misconduct for an attorney to “engage in conduct involving dishonesty, fraud, deceit or misrepresentation.” The Respondent concedes that he violated section (c) and admits that he made untrue statements to Mr. Bulitt and other JGL officials about his caseload and client billing; though he denies that they rise to the level of fraud. The Respondent admitted that he knew that he would have to “pay the piper” at some point in time.

The Court finds that the factual circumstances and case law presented by the Petitioner support the conclusion that the Respondent violated Rule 8.4(c). The Petitioner argues lastly that, pursuant to Rule 8.4(d), the Respondent engaged in conduct that was “prejudicial to the administration of justice.” The Respondent argues that ²²⁰ the Petitioner’s burden is higher to prove misconduct under section (d) than section (c), because conduct that is “prejudicial to the administration of justice” must “seriously impair public confidence in the entire profession, without extenuating circumstances.” The Respondent distinguishes his conduct as “private” and not something that affects public confidence in the profession. As support for this contention, the Respondent cites Attorney Grievance Comm’n v. Link, 380 Md. 405 [, 844 A.2d 1197 ] (2004), wherein the Maryland Court of Appeals held that “[o]nly when such purely private conduct is criminal or so egregious as to make the harm, or potential harm, flowing from it patent will that conduct be considered as prejudicing, or being prejudicial to, the administration of justice.” This Court concludes that case law supports the finding that the Respondent’s conduct here was essentially private in nature, consisting of false representations to his employer. The conduct did not “seriously impair public confidence” in the profession, and this Court holds that the Petitioner failed to satisfy its burden of proof under section (d).

This Court is vested with the responsibility to examine every attorney grievance on its own merits, taking into account its unique factual circumstances. Thus, the Court must evaluate any aggravating and mitigating factors presents [sic] in this case. The Court first analyzes any mitigating factors present in this case. Mitigating factors in attorney grievance cases can include: [A]bsence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses. ²²¹ See Attorney Grievance Comm’n v. Gordon, 413 Md. 46, 63 , 991 A.2d 51 [, 61] (2010) (quoting Attorney Grievance Comm’n v. Sweitzer, 395 Md. 586, 599 , 911 A.2d 440, 448 (2006)).

The Court finds by clear and convincing evidence that the following mitigating factors exist: the Respondent’s recognition of the wrongfulness of his actions, his full payment of the financial debt to the firm within two months, and his self-reported misrepresentations and falsified billings to the Maryland Bar. However, the Court must also weigh these circumstances against the aggravating factors identified in Attorney Grievance Comm’n v. Bleecker, 414 Md. 147 [, 994 A.2d 928 ] (2010), and located at Standard 9.22 of the American Bar Association Standard for Imposing Lawyer Sanctions. The parties dispute four of these factors specifically: the Respondent’s (b) dishonest or selfish motive, (c) a pattern of misconduct, (d) multiple offenses, and (i) substantial experience in the practice of law. Based upon the factual circumstances of this case, this Court agrees with both parties that the other aggravating factors of Standard 9.22 are inapplicable here.

As to (b), the Court acknowledges that the Respondent’s motivation was not due to a purely selfish desire to gain money from JGL. The Respondent was supporting his wife and three children, two of whom were in college. As a consequence of this and other personal financial problems, the Respondent chose to proactively mislead his employer into believing that he was performing at an acceptable level of productivity. This was not a matter of willful ignorance or even passive recognition: the Respondent affirmatively made statements and drafted documents attesting to falsified information in order to misrepresent his performance to JGL.

Furthermore, the Respondent’s defense of “embarrassment” and fear for his reputation within the firm provides little defense. The Respondent’s conduct and statements were dishonest and selfish, and thus the Court finds that (b) ²²² is an aggravating factor in evaluating the Respondent’s misconduct. The Respondent’s behavior was also systemic because the Respondent made misrepresentations to Mr. Bulitt at each quarterly review and on other occasions, too. He also provided false client billings in aid of these oral statements.

The Court thus incorporates (c) and (d) together as factors contributing to its conclusion that the Respondent engaged in a continuous pattern of misconduct during his employment for JGL. The Respondent had nearly twenty years of experience in bankruptcy law. Furthermore, the Respondent engaged in private practice within a firm setting for this same period of time, and should have had a thorough understanding that his conduct was unacceptable. Therefore, the Court finds that aggravating factor (i) exists.

Wherefore, this Court concludes this 10th day of June, 2013, that the Petitioner met its burden of proof and proved by clear and convincing evidence that the Respondent violated Rule 8.4(a) and (c), but failed to meet its burden of proof and did not prove that the Respondent violated Rule 8.4(b) and (d). Therefore, the Circuit Court recommends that violations under (a) and (c) be upheld, and that violations under (b) and (d) be dismissed by the Court of Appeals, but [sic]. (Citations omitted). DISCUSSION Our task in attorney discipline proceedings is well established: “In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record.” Att’y Grievance Comm’n v. Bleecker, 414 Md. 147, 167 , 994 A.2d 928, 940 (2010) (citations omitted). “We accept a hearing judge’s findings of fact unless we determine that they are clearly erroneous.” Att’y Grievance Comm’n v. Edib, 415 Md. 696, 706 , 4 A.3d 957 , 964 ²²³ (2010) (quoting Att’y Grievance Comm’n v. Guida, 391 Md. 33, 50 , 891 A.2d 1085, 1095 (2006)).

That deference is appropriate because the hearing judge is in a position to assess the demeanor-based credibility of the witnesses. Id. at 707, 4 A.3d at 964 . In that regard, “[t]he hearing judge is permitted to ‘pick and choose which evidence to rely upon’ from a conflicting array when determining findings of fact.” Guida, 391 Md. at 50 , 891 A.2d at 1095 (quoting Att’y Grievance Comm’n v. Fezell, 361 Md. 234, 253 , 760 A.2d 1108, 1118 (2000)). We review de novo the hearing judge’s proposed conclusions of law.

Att’y Grievance Comm’n v. Ugwuonye, 405 Md. 351, 368 , 952 A.2d 226, 236 (2008). In other words, “the ultimate determination ... as to an attorney’s alleged misconduct is reserved for this Court.” Att’y Grievance Comm’n v. Garfield, 369 Md. 85, 97 , 797 A.2d 757, 764 (2002) (quoting Att’y Grievance Comm’n v. Thompson, 367 Md. 315, 322 , 786 A.2d 763, 768 (2001) (alteration in original)). In that regard, we examine the record to ascertain whether there was sufficient evidence to support the hearing judge’s legal conclusions, by a “clear and convincing” standard of proof. Att’y Grievance Comm’n v. Siskind, 401 Md. 41, 54 , 930 A.2d 328, 335 (2007).

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