Attorney Grievance Commission v. Pennington

BELL, C.J., dissents. Dissenting Opinion by BELL, C.J. Misappropriation of entrusted funds, we have admonished, “is an act infected with deceit and dishonesty, and, in the absence of compelling extenuating circumstances justifying a lesser sanction, will result in disbarment.” Attorney Griev. Comm’n v. Bakas, 323 Md. 395, 403 , 593 A.2d 1087, 1091 (1991). See Attorney Griev.

Comm’n v. Spery, 371 Md. 560, 568 , 810 A.2d 487, 491-92 (2002); Attorney Griev. Comm’n v. Sullivan, 369 Md. 650, 655-56 , 801 A.2d 1077, 1080 (2002); Attorney Griev. Comm’n v. Vanderlinde, 364 Md. 376, 410 , 773 A.2d 463, 483 (2001). That same admonition has been given, and thus applies, in the case of conduct involving misrepresentation, see Vanderlinde, 364 Md. at 380 , 773 A.2d at 465 .

See also Attorney Griev. Comm’n v. Levitt, 286 Md. 231, 238 , 406 A.2d 1296, 1299 (1979); Fellner v. Bar Ass’n of Balt. City, 213 Md. 243, 247 , 131 A.2d 729, 732 (1957), especially when the attorney has a history of such conduct. Attorney Griev.

Comm’n v. Myers, 333 Md. 440, 449 , 635 A.2d 1315 -1319 (1994). Whether the misconduct occurred is a question to be determined by the hearing court, whose findings in that regard are important and entitled to deference. See Attorney Griev. Comm’n v. Parker, 306 Md. 36, 46 , 506 A.2d 1183, 1188 (1986).

The intent with which the misconduct was committed also is entrusted to the determination of the hearing court. That determination is of further importance in that it speaks directly to the quality and degree of misconduct for sanction purposes. Attorney Griev. Comm’n v. Tomaino, 362 Md. 483, 498 , 765 A.2d 653, 661 (2001) (reasoning that “the state of mind of the attorney at the time of the violation [is] important ⁶⁰⁰ in the context of mitigation”); Attorney Griev.

Comm’n v. Sheridan, 357 Md. 1, 29, 741 A.2d 1143, 1158 (1999) (“We agree with Respondent that his state of mind at the time he violated the ethical rules is important in the context of mitigation.”); Attorney Griev. Comm’n v. Awuah, 346 Md. 420, 435 , 697 A.2d 446, 454 (1997). (“Although ignorance does not excuse a violation of disciplinary rules, a finding with respect to the intent with which a violation was committed is relevant on the issue of the appropriate sanction.”). The hearing court found that the respondent violated Rules 8.4(c) and (d), and thus engaged in conduct involving misrepresentation.

It also concluded that she did so intentionally, that the intent with which she acted was not a defense: “The Respondent contends that her actions were not intentional or willful and thus could not been viewed to violate Rule 8.4(c) and (d). This Court simply does not believe that Respondent did not intend the natural consequences of her action and nonaction, especially when the Respondent testified that she never wanted the Butlers to become aware of the source of the funds or the status of their claims. Intentional fraud can be sustained by means of concealment. Attorney Grievance Commission v. Clements, 319 Md. 289 , 572 A.2d 174 (1990); See also Attorney Grievance Commission v. Pinkney, 311 Md. 137 , 532 A.2d 1367 (1987) (Respondent prepared fictitious pleadings to give her client the impression that her case was filed in court, when in fact, she had failed to do so.) The act of concealment is exactly the conduct of the Respondent in this matter.” The court also rejected the “independent defense of reliance of counsel,” which the respondent argued answered both the allegations with respect to Rule 8.4 and Rule 1.7.

That defense was based on the respondent’s having consulted with Mr. Wiggins concerning the appropriateness of proceeding to reimburse her client for a loss necessitated by her inaction, without fully disclosing to that client the circumstances and that it was her money, rather than that of an insurance company, that was being used to make the reimbursement. After conducting the analysis and reviewing the pertinent ⁶⁰¹ cases, the hearing court concluded, “the Respondent ... cannot rely on the good faith reliance on the defense of counsel as this is not the rule in Maryland.” Nevertheless, it offered mitigating factors to be used when fashioning a sanction. Specifically, the hearing court made a “finding that the Respondent in good faith relied on the incorrect advice provided to her by Mr. Wiggins and, because of that reliance, did not impart to the Butlers information about the status of their claims or the source of the funds that they received.” In addition, the hearing court noted that, “during the hearing, Respondent displayed a high degree of remorse for her actions. These actions should therefore be considered as mitigating factors when fashioning any