Attorney Grievance Commission v. Pleshaw

HARRELL, J., dissenting, in which MURPHY, J., joins. The District of Columbia Court of Appeals (“D.C. Court”), on 12 August 2010, disbarred Robert J. Pleshaw (“Pleshaw”) from the practice of law in the District of Columbia (“D.C.”) for an ethical faux-pas he committed in a probate matter in the Superior Court of the District of Columbia. As Pleshaw is also admitted to practice law in Maryland, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, petitioned this Court under Md. Rule 16-773(b), to impose reciprocal discipline, ie., disbarment. We issued a Show Cause Order, requiring Pleshaw to “show cause ... why reciprocal discipline shall not be ordered by this Court.” Pleshaw did not respond.

The Court Majority disbarred Pleshaw by order. That Pleshaw failed to respond, however, does not relieve this Court of its duty to engage in critical thought regarding what the proper reciprocal discipline is in this matter. Before imposing reciprocal discipline, this Court has a longstanding and independent duty to consider what discipline is appropriate, i.e., consistent with Maryland attorney disciplinary jurisprudence. See Attorney Grievance Comm’n v. Cafferty, 376 Md. 700, 727 , 831 A.2d 1042, 1058 (2003).

With no apparent analysis, the Majority here imposes disbarment. Comparing the conceded facts of the present case to similar Maryland attorney disciplinary matters (in particular, Attorney Grievance Commission v. Whitehead, 390 Md. 663 , 890 A.2d 751 (2006)) reveals to me, however, that disbarring Pleshaw is inconsistent with our cases and, therefore, not proper reciprocal discipline. Because, in my view, Pleshaw should not be disbarred, I dissent. I. I open with a brief recitation of the relevant facts.

In its opinion, In re Robert J. Pleshaw, 2 A.3d 169 (D.C.2010), the D.C. Court imposed disbarment on the basis of a single violation in a single incident involving the misappropriation of ⁴³⁰ conservator funds — the result of recklessness, rather than negligent or intentional misappropriation. In 1997, the Probate Division of the Superior Court of the District of Columbia (“probate court”) appointed Pleshaw to represent Joseph Riley in an intervention proceeding and later the Riley Estate itself. On 6 March 1998, Pleshaw filed a first petition for compensation, totaling $1,050.00. The probate court approved the petition, and Pleshaw withdrew that amount from the funds in the estate.

More than a year later, on 17 May 1999, Pleshaw withdrew funds again from the estate in the amount of $1,037.55 as payment for his legal services. Unlike the initial withdrawal, however, Pleshaw did not seek prior authorization from the probate court before paying himself. A couple of days after this withdrawal, Pleshaw filed with the probate court his First Accounting as conservator of the estate. In the report, he included not only the initial legal fee withdrawal, but the second such withdrawal as well.

There was a third withdrawal for legal services, in the amount of $1,652.00, also not pre-authorized. Unlike the second withdrawal, however, Pleshaw sought court approval before taking the third withdrawal. Although the probate court denied initially the third request for compensation, the notice from the probate court to Pleshaw did not indicate clearly that his request, in fact, was denied. Due to the ambiguity whether Pleshaw was notified adequately about the probate court’s action regarding the third withdrawal, the D.C. Court limited expressly its legal analysis and sanction imposition to the circumstances of the second withdrawal.

The D.C. Court began its analysis by defining misappropriation as “any unauthorized use of [a] client’s funds entrusted to [an attorney], including not only stealing but also unauthorized temporary use for the [attorney’s] own purpose, whether or not [he or she] derives any personal gain or benefit therefrom.” In re Robert J. Pleshaw, 2 A.3d at 173 (internal quotation marks and footnote omitted). Relevantly, under D.C. caselaw, an attorney misappropriates “recklessly” when he or she manifests a “conscious indifference to the conse ⁴³¹ quences of his behavior for the security of the funds.” Id. (internal quotation marks and footnote omitted). If the D.C. Court determines that an attorney misappropriated recklessly, it will, “in virtually all cases,” disbar him or her.

Id. (internal quotation marks and footnote omitted). Because Pleshaw “properly withdr[ew] his initial fee .... [,] he was aware of and understood the conservatorship rules....” Id. “[H]e nonetheless disregarded [those rules] for his own convenience,” an act which “alone constituted] ‘conscious indifference.’ ” In re Robert J. Pleshaw, 2 A.3d at 173-74 . As a result, the D.C. Court was “bound to follow [its] long-standing judicial determination that misappropriation in any form ... warrants] disbarment.” In re Robert J. Pleshaw, 2 A.3d at 174 .

Following the D.C. Court’s decision, Bar Counsel in Maryland petitioned this Court, on 21 October 2010, for reciprocal discipline and a Show Cause Order was issued. 1 In particular, Bar Counsel avers that Pleshaw violated Maryland Lawyers’ Rules of Professional Conduct 1. 15, 2 8.4(b), 3 (c), 4 and (d), 5 and ⁴³² the Maryland Code (1989, 2004 RepLVol.), Business Occupations and Professions Article, § 10-306. 6 II. Reciprocal Treatment In our attorney disciplinary jurisprudence, we recognize that Maryland lawyers and citizens are best served when we impose “consistent dispositions for similar misconduct.” Cafferty, 376 Md. at 727 , 831 A.2d at 1058 . Consistency provides the legal system with certainty, thereby guiding lawyers as to the proper course of action and protecting clients from overly-risky or overly-chilled behavior. See Attorney Grievance Comm.’n v. Sperling, 380 Md. 180, 191 , 844 A.2d 397, 404 (2004) (“[T]he public interest is served when this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated ....”) (internal quotation marks and citations omitted); Whitehead, 390 Md. at 683 , 890 A.2d at 763 (ruling that the ultimate goal of protecting the public is “furthered] ... by ensuring that every Maryland attorney is held to consistent standards of conduct”).

That is why this Court is “duty-bound to assess for itself the propriety of the sanction imposed by [another] jurisdiction as well as the sanction recommended by the [Attorney Grievance] Commission [of Maryland].... ” Cafferty, 376 Md. at 727 , 831 A.2d at 1058 (citation omitted); see also id. (“[This Court] tend[s] to ... but [is] not required to ... impose the same sanction as that imposed by the jurisdiction in which the misconduct occurred.”) (citations omitted). Stated another way, “we are concerned with what sanction a lawyer in Maryland could expect in response to similar conduct, were it to have occurred in Maryland.” Attorney Grievance Comm’n v. Gordon, 413 Md. 46, 56 , 991 A.2d 51, 57 (2010) (emphasis added). As a result, “[t]he sanction will ⁴³³ depend,” not just on the decision of the foreign court, but also on “the unique facts and circumstances of each case,” considered against the backdrop of our precedent.

Id. (internal quotation marks and citation omitted). By first identifying factually-similar Maryland cases and then examining the sanctions imposed there, the Court is able to determine what discipline is truly reciprocal, ie., either what the foreign jurisdiction imposed or some other discipline more consistent with Maryland’s attorney disciplinary jurisprudence. See Gordon, 418 Md. at 57, 991 A.2d at 57 (“[W]hen our cases 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 sanction... .”). 7 The absence of an explanation by the Majority of its reasons for imposing disbarment here is an especially worrisome vacuum considering that the foreign jurisdiction based its sanction of disbarment on grounds, ie., reckless misappropriation, that Maryland does not recognize.

As I shall demonstrate, infra, Pleshaw’s behavior merits a serious sanction, but less than disbarment, in Maryland.

III

Pleshaw’s Conduct Viewed through the Prism of Maryland’s Attorney Disciplinary Rules and Jurisprudence The D.C. Court found that Pleshaw’s conduct was “reckless,” but not necessarily “intentional.” In re Robert J. Pleshaw, 2 A.3d at 173-74 . Once it characterized Pleshaw’s conduct as “reckless,” the D.C. Court did not need to consider whether Pleshaw’s conduct was “intentional.” Maryland caselaw does not address “recklessness,” but rather asks simply whether the behavior was “intentional” as opposed to “negligent or otherwise unintentional____” Cajferty, 376 Md. at 724 , 831 A.2d at 1057 (emphasis added). ⁴³⁴ The consequences of resolving the issue of the actor’s mental state are significant to our analysis. If an attorney misappropriated intentionally — i.e., “with[ ] the clear intent to defraud his [or her] clients” — then disbarment will be imposed normally. Cafferty, 376 Md. at 725 , 831 A.2d at 1057 (emphasis added); Whitehead, 390 Md. at 676 , 890 A.2d at 759 (finding dispositive the fact that “[f]rom the record[,] it is not apparent that [the attorney’s] conduct was intentional”) (emphasis added); see Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 413-14 , 773 A.2d 463, 485 (2001).

If an attorney misappropriated negligently or otherwise uninten tionally — i.e., with something other than a clear intent to defraud — “indefinite suspension ordinarily is the appropriate sanction.” Cafferty, 376 Md. at 722 , 831 A.2d at 1055 (emphasis added) (citations omitted). A. Maryland Cases Confronting Misappropriation in a Probate Context Before following the D.C. Court and imposing disbarment in this State, the Court needs to conclude, through an independent examination of relevant precedent, that these facts demonstrate “intentionality” as a matter of law, i.e., if Pleshaw’s “clear” and “apparent” intent was to defraud the estate. If Pleshaw acted negligently or “otherwise unintentionally],” as those terms are defined under Maryland caselaw, then the Court should act accordingly to impose appropriate reciprocal discipline, but not disbarment. As applies to similar circumstances in D.C., an attorney representing a Maryland estate must seek approval from the relevant court before withdrawing estate funds as compensation for legal services.

Md.Code (1974, 2001 Repl.Vol.), Estates and Trusts Article, § 7-602(b) (“Upon the filing of a petition ... by ... the attorney, the [probate] court may allow a counsel fee to an attorney employed by the [estate] for legal services.”). 8 This Court has considered, in a variety of pro ⁴³⁵ bate cases, whether an attorney’s failure to comply with Section 7 — 602(b) was intentional and, therefore, worthy of disbarment. A review of the specific circumstances of these cases reveals the factors that should drive this Court’s scienter conclusions in the context of probate misappropriation. 1. Owrutsky In Attorney Grievance Commission v. Owrutsky, 322 Md. 334, 341 , 587 A.2d 511, 514 (1991), an attorney took fees from two “estates before they were earned and before approval of the [probate] [c]ourt had been sought or obtained.” We determined that his conduct came “perilously close to misappropriation of funds for which, in the absence of extenuating circumstances, disbarment is ordinarily the appropriate sanction.” Owrutsky, 322 Md. at 355 , 587 A.2d at 521 . In divining an appropriate sanction, the Court distinguished Attorney Grievance Commission v. Pattison, 292 Md. 599 , 441 A.2d 328 (1982), where an attorney, over the course of two and a half years, “took sums of money[, disguised as loans,] from an estate ... for his own use on 30 occasions____” Owrutsky, 322 Md. at 355 , 587 A.2d at 521 .

Then, it held — again based on a totality of the circumstances, including the fact that the attorney “ha[d] been a member of the Bar for nearly [thirty] years without a record of previous misconduct” — that Owrutsky should be suspended with a right to reapply no sooner than three years. Owrutsky, 322 Md. at 355-56 , 587 A.2d at 521 . 2. Kendrick In Attorney Grievance Commission v. Kendrick, 403 Md. 489, 508 , 943 A.2d 1173, 1184 (2008), an attorney “accepted, prior to any court approval, $6,000.00 from the Estate for her services.” After the Orphans’ Court for Baltimore County learned of the misappropriation, it ordered the attorney to refund the fees, a command which the attorney ignored on ⁴³⁶ multiple occasions. See Kendrick, 403 Md. at 495-96 , 943 A.2d at 1176 .

Despite the attorney’s “inability to accept responsibility in the mishandling of the Estate,” this Court concluded that the “misconduct was not due to greed or dishonesty, but rather ... to obstinateness and incompetence in probate matters.” See Kendrick, 403 Md. at 522 , 943 A.2d at 1192 . Based on a totality of the circumstances, including the fact that the attorney “ha[d] not been previously sanctioned ... for professional misconduct,” and “in light of our relevant prior cases,” this Court imposed an indefinite suspension with a right to reapply contingent solely upon making restitution. Kendrick, 403 Md. at 522 , 943 A.2d at 1192 . 3. Sullivan In Attorney Grievance Commission v. Sullivan, 369 Md. 650 , 801 A.2d 1077 (2002), as in Pattison , the Court disbarred the offending attorney.

Sullivan, an attorney appointed as an estate representative, failed to act initially to administer the estate. See Sullivan, 369 Md. at 653 , 801 A.2d at 1079 . Although the estate’s heirs filed a petition to remove Sullivan, they agreed eventually to retain him and to offer $25,000.00 for the first accounting and $25,000.00 for the estate’s closing. See Sullivan, 369 Md. at 654 , 801 A.2d at 1079 .

Notwithstanding this agreement, Sullivan still did not administer the estate, and the heirs petitioned the probate court for his removal again. See id. The parties reached another agreement, in which the attorney would resign immediately and waive most commissions and compensation. See id.

The estate records revealed ultimately that Sullivan “had drawn twelve ... to fifteen ... checks, totaling $50,500.00, on the estate account, payable to himself.” Id. When the heirs and Bar Counsel filed suit and initiated an investigation, respectively, the attorney remained unresponsive. See Sullivan, 369 Md. at 654-55 , 801 A.2d at 1079 . On this record, the Court concluded that the attorney’s “actions were dishonest[,] ... constituted theft of estate funds,” and imposed disbarment.

Sullivan, 369 Md. at 656 , 801 A.2d at 1080 ; see also Attorney Grievance Comm’n v. Boehm, 293 Md. 476 , 446 A.2d 52 (1982) ⁴³⁷ (imposing disbarment where an attorney auctioned part of an estate, deposited the funds into an escrow account, made multiple withdrawals from that account, and was unable to recall how he used those funds). 4. Whitehead Finally, in Whitehead, 390 Md. at 667 , 890 A.2d at 753 , an attorney withdrew “$40,200.00 for his services ... without prior court approval” while representing a D.C. estate. Appearing without counsel before the D.C. Court, the attorney was led allegedly to believe that his conduct would result automatically in disbarment, and so he consented to such action. See Whitehead, 390 Md. at 667-68 , 890 A.2d at 754 .

Although Whitehead “ha[d] concentrated in estate and trusts law” throughout his three-decade legal career, Whitehead, 390 Md. at 667 , 890 A.2d at 753 , this Court concluded “[f]rom the record [that] it is not apparent ... [the attorney’s] conduct was intentional.” Whitehead, 390 Md. at 676 , 890 A.2d at 759 (emphasis added). The Court noted that the attorney “did not take the fees before they were improperly accounted for or earned,” “returned the unapproved fees upon learning that taking them without approval was inappropriate,” and had long-practiced in Maryland without incurring discipline. See Whitehead, 390 Md. at 676 , 890 A.2d at 758-59 . As such, the Court resolved that an indefinite suspension, with a right to reapply no sooner than eighteen months, was the appropriate sanction — “[i]t furthered] our [disciplinary] goal ... by ensuring that every Maryland attorney is held to consistent standards of conduct.” Whitehead, 390 Md. at 677 , 890 A.2d at 759 .

B. Did Pleshaw Act Intentionally or “Otherwise Unintentionally”? Pleshaw does not appear to have acted with the requisite “clear” and “apparent” intent required under Maryland cases. Rather, the facts of this case indicate that his intent was most directly “otherwise unintentional.”