Attorney Grievance Commission v. Poverman

⁵⁹² ADKINS, J. In this reciprocal attorney discipline action, the Attorney Grievance Commission (“AGC”) of Maryland, acting through Bar Counsel, asks us to disbar Christopher W. Poverman. On November 7, 2013, the Delaware Supreme Court ordered that Poverman be publicly reprimanded. Admitted to the Delaware Bar on March 8, 1991, Poverman was on inactive status from 1999 to 2005. After he failed to file a 2005 Annual Registration Statement, the Delaware Supreme Court issued Poverman a show cause order and directed him to appear before them.

When Poverman did not appear, he was suspended from the Delaware Bar. Nearly four years later, Poverman filed a petition for reinstatement, which was granted. By 2013, there were two petitions for disciplinary action pending against Poverman. In case 2012-0228-B (“CLE case”), the Delaware Office of Disciplinary Counsel (“ODC”) averred that Poverman violated Delaware Lawyers’ Rules of Professional Conduct (“DLRPC”) 3.4(c) 1 and 8.4(d).

In case 108242-B (“registration case”), ODC averred that Poverman violated DLRPC 8.4(c) and (d). 2 Poverman filed a response in the CLE case but never filed a response in the registration case. On June 10, 2013, the Delaware Supreme Court’s Board on Professional Responsibility (“Board”) conducted a hearing re ⁵⁹³ garding the two petitions. Prior to the hearing, Poverman admitted to all violations. Therefore, the hearing—at which Poverman was the only witness—focused on the appropriate sanctions for those violations.

Following the hearing, the Board issued findings of fact, conclusions of law, and a recommended sanction. THE BOARD’S FINDINGS OF FACT, CONCLUSIONS OF LAW, AND RECOMMENDED SANCTION CLE Case Poverman did not complete his 2011 continuing legal education (“CLE”) requirement by the February 1, 2012 deadline. In June, July, and August 2012, the CLE Commission sent Poverman several letters and emails regarding his noncompliance. Poverman did not respond to any of this correspondence.

Consequently, the CLE Commission sent a statement of noncompliance to ODC and a notice and copy to Poverman. On August 23, 2012, ODC attorney, Patricia Schwartz, notified Poverman that the CLE Commission had referred the matter to ODC. At that time, Poverman provided ODC his Baltimore office address and cell phone number. On August 24, 2012, Schwartz sent a letter to Poverman at that address, requesting proof of CLE compliance by September 7, 2012.

Poverman did not respond to this letter, and he denies having received it. Schwartz sent a September 19, 2012 follow-up letter to Poverman’s Baltimore office, citing her August 24 letter and reminding Poverman of ODC’s request and his duty, under DLRPC Rule 8.1(b), to respond. Poverman did not respond to this letter either. After Poverman failed to respond to two letters from ODC, Jennifer-Kate Aaronson, Chief Counsel of ODC, intervened and sent another letter to Poverman’s Baltimore office on October 26, 2012.

The letter referred to the August 24 and September 19, 2012 letters, highlighted Poverman’s violation of 8.1(b), and informed Poverman of a formal ODC investigation and a scheduled presentation to ODC’s Preliminary Review Committee (“PRC”). Poverman, again, did not respond. ⁵⁹⁴ Poverman finally called ODC on November 21, 2012 and admitted that he received the September 19 and October 26, 2012 letters. He committed to contacting the CLE Commission and devising a plan to correct his CLE deficiency. Poverman contacted the CLE Commission on December 6, 2012 and agreed to complete his outstanding CLE by no later than December 31, 2012.

Notwithstanding two email reminders from the CLE Commission, Poverman neither completed the CLE by December 31, 2012 nor communicated with the CLE Commission or ODC to let them know he would not fulfill his commitment. On February 18, 2013, ODC sent a notice to Poverman’s Baltimore office, advising that ODC would present its case to the PRC on March 6, 2013 and summarizing the petition to be filed against him. ODC offered Poverman a private admonition and two years’ private probation if he consented in writing. On March 12, 2013, ODC sent another letter to Poverman’s Baltimore office, advising that the PRC found probable cause to support a petition for discipline, and again offering a private admonition with private probation.

Poverman did not accept the offer. Ultimately, he completed the CLE on May 15, 2013, over one year after the deadline. The Board concluded that Poverman violated DLRPC 3.4(c) and 8.4(d) because he failed to satisfy his 2011 CLE requirement and repeatedly ignored correspondence from the CLE Commission and ODC. Registration Case Poverman failed to complete his 2013 Annual Registration Statement by the March 1, 2013 deadline.

On March 12, 2013, the Delaware Supreme Court issued an order directing Poverman to appear before the court and show cause why he should not be suspended or sanctioned for such failure. ODC sent the show cause order to Poverman’s Baltimore office on March 19, 2013. On March 27, 2013, the date on which he was due to appear before the court to respond to the show cause order, Poverman called Cathy Howard, Clerk of the Supreme ⁵⁹⁵ Court, and advised her that he would complete his registration statement online. Based on their conversation, Howard believed that Poverman had suffered two strokes, which hindered his completion of the registration statement.

On the same day, Howard sent an email to ODC relaying that Poverman had experienced two strokes and that he would complete the registration prior to his scheduled appearance before the Supreme Court. On April 9, 2013, Poverman repeated this assertion to the ODC in an email, stating that he had a “second stroke” in December 2012. Poverman, however, was never formally diagnosed as having suffered a stroke. Poverman completed his 2013 registration statement on March 27, 2013.

When completing the application, he certified that: [T]here are no charges pending or threatened against me before any Court, the Board on Professional Responsibility, or any other similar disciplinary agency in this or any other jurisdiction. I further certify that I do not know of any facts respecting my conduct which would result in the filing of charges or disciplinary action against me. The Board found that Poverman knew this certification was false: [A]t the time [Poverman] made that certification in his 2013 Annual Registration Statement, he was aware of his failure to complete CLE as required, and was on notice of ODC’s open investigation of the CLE deficiency as referred to ODC by the CLE Commission in August 2012. [Poverman] was aware that the ODC had planned to present his case to the PRC in October 2012, and that he did not follow through on a corrective action plan he agreed to by December 31, 2012. ODC sent notice, to the address provided by [Poverman], that ODC was again presenting its case to the PRC in March 2013.

By the time he filed the Annual Registration on March 27, 2013, [Poverman] had not yet completed his CLE requirements for 2011. ⁵⁹⁶ The Board concluded that Poverman violated DLRPC 8.4(c) and (d) when he made the false certification. Delaware Sanction In determining what sanction to recommend, the Board considered the American Bar Association’s Standards for Imposing Lawyer Sanctions (1992), which outlines four factors to apply when evaluating misconduct by lawyers: (1) the ethical duties violated by the lawyer; (2) the lawyer’s mental state; (3) the potential or actual injury caused by the lawyer’s misconduct; and (4) the existence of aggravating or mitigating factors. First, the Board concluded that by violating DLRPC 3.4(c), 8.4(c), and 8.4(d), Poverman violated duties owed to the legal system and the legal profession. Second, the Board determined Poverman’s mental state was “knowing” with respect to failing to complete his CLE, disregarding communications from the CLE Commission, and making a false certification on his 2013 registration statement.

Third, although it acknowledged that no client was injured as a result of Poverman’s misconduct, the Board concluded that Poverman’s transgressions “can cause potential harm to the integrity of the legal system.” Fourth, and finally, when reviewing aggravating and mitigating factors, the Board highlighted that Poverman exhibited a pattern of misconduct, committed multiple offenses, obstructed the efforts of ODC by repeatedly ignoring their directions, and trivialized his noncooperation with ODC. Recognizing that Poverman cited during the hearing a number of “personal problems,” the Board emphasized those problems were “years old” and did not account for his “recalcitrance” and repeated noncompliance with rules and orders. Ultimately, the Board recommended a public reprimand with the condition that Poverman pay both the CLE Commission late fees and ODC costs. Neither Poverman nor ODC filed objections to the Board’s Report.

On November 7, 2013, the Delaware Supreme Court issued an Order approving the Board’s Report and imposing a public ⁵⁹⁷ reprimand with two conditions: (i) Poverman would undergo a mental health evaluation and monitoring by the Delaware Lawyers Assistance Program if he did not seek inactive status within thirty days; and (ii) Poverman would pay the CLE Commission late fees and ODC costs. MARYLAND DISCIPLINARY PROCEEDING Based on the Delaware sanction, Bar Counsel initiated the present reciprocal disciplinary proceeding by filing a Petition for Disciplinary or Remedial Action on March 18, 2014. In the Petition, Bar Counsel averred that Poverman engaged in professional misconduct as defined in Maryland Rule 16-701(i) 3 and that he violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.1(a) and (b) 4 and 8.4(a), (c), and (d) 5 . The following day, this Court issued an order ⁵⁹⁸ directing the parties to show cause why, based upon the grounds set forth in Maryland Rule 16-773(e), 6 this Court should not impose corresponding discipline.

Bar Counsel filed its response to our Show Cause Order on May 19, 2014, seeking disbarment as the corresponding discipline. It argued a substantial deviation from the Delaware sanction was warranted because Poverman’s “serious misconduct” was “infested with dishonesty” and involved “repeated intentional dishonest conduct.” Bar Counsel also directed us to the aggravating factors the Board highlighted. On May 27, 2014, Poverman, representing himself, filed his response. He argued that although “[i]t is understood that [we] will view the factual findings and conclusions of law of the Delaware Court as conclusive evidence of [his] misconduct,” we are “not required to impose identical discipline.” Poverman contended that there is a “dearth” of cases dealing with similar facts.

He surmised that this purported lack of similar cases “could indicate that Maryland would not view a public reprimand as appropriate in this circumstance.” Poverman represented himself at an oral hearing before the Court on October 2, 2014. ⁵⁹⁹ DISCUSSION Standard Of Review In reciprocal discipline cases, we generally treat the findings of fact and conclusions of law of the sister jurisdiction as conclusive evidence of the attorney’s misconduct. Att’y Grievance Comm’n v. Gordon, 413 Md. 46, 54-55 , 991 A.2d 51, 56 (2010); see Md. Rule 16-773(g) 7 . We are not required, however, to impose the identical sanction as our sister jurisdiction. See Att’y Grievance Comm’n v. Weiss, 389 Md. 531, 546 , 886 A.2d 606, 615 (2005).

As we explained in Attorney Grievance Commission v. Whitehead, Maryland Rule 16—733(f) 8 states that we “may impose ‘corresponding discipline,’ not that [we] shall impose ‘identical discipline.’ ” 390 Md. 663, 668 , 890 A.2d 751, 754 (2006) (emphasis in original). Also, Maryland Rule 16-773(e) precludes us from imposing reciprocal discipline if Bar Counsel or the attorney demonstrates by clear and convincing evidence that “exceptional circumstances” exist. Among other instances, “exceptional circumstances” exist when the “imposition of corresponding discipline would result in grave injustice,” or the attorney’s conduct “warrants sub ⁶⁰⁰ stantially different discipline in [Maryland].” Md. Rule 16-773(e). When fashioning a sanction in a reciprocal discipline case, we have “the long-established duty to impose [a sanction] that is consistent with our attorney disciplinary jurisprudence by assessing, independently, the propriety of the sanction imposed by a sister jurisdiction, as well as the sanction recommended by Bar Counsel.” Att’y Grievance Comm’n v. Katz, 429 Md. 308, 317 , 55 A.3d 909, 914 (2012) (citation omitted). “[W]e are concerned with what sanction a lawyer in Maryland could expect in response to similar conduct, were it to have occurred in Maryland.” Gordon, 413 Md. at 56 , 991 A.2d at 57 .

Therefore, “we are duty bound to look not only to the sanction imposed by the other jurisdiction but to our own cases as well. The sanction will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.” Id. (citation and internal quotation marks omitted). In order to avoid inconsistent sanctions, “we need not follow the original jurisdiction’s sanction when our cases demonstrate that we would apply a different sanction, had the conduct occurred or the case originated here.” Id. at 57 , 991 A.2d at 57 (citation omitted).

There is at least one exception to the rule that we should deviate from the sanction of the sister jurisdiction when the sanction would be different had the misconduct occurred in Maryland. In Attorney Grievance Commission v. Ayres Fountain, 379 Md. 44 , 838 A.2d 1238 (2003), another reciprocal discipline action based on misconduct in Delaware, we suspended Ayres-Fountain for three years just as the Delaware Supreme Court had done. Ayres-Fountain admitted that, in addition to other transgressions, she falsely represented to the Delaware Supreme Court that she had timely filed and paid all federal, state, and local payroll, gross receipts, and income taxes between 1996 and 2000. Id. at 47 , 838 A.2d at 1240 .

Ultimately, we determined it was appropri ⁶⁰¹ ate to impose the identical sanction as the Delaware Supreme Court, concluding: [W]here a respondent’s most serious misconduct involves misrepresentations, and those misrepresentations are to the Supreme Court of the State in which he or she principally practices and that sanctioned him or her, it ordinarily is appropriate to defer to that court, notwithstanding that the sanction it imposed is not identical to the one that may have been imposed by this Court were the same conduct to have occurred in this State. Id. at 59 , 838 A.2d at 1247 (emphasis added). The Ayres Fountain exception does not apply to this case because there is no evidence that Poverman principally practiced in Delaware when he made the false certification to the Delaware Supreme Court. Therefore, we conclude we are not required, under Ayres Fountain , to impose the identical sanction.

MLRPC Violations The Board concluded that Poverman violated DLRPC 3.4(c), 8.4(c), and 8.4(d). DLRPC 8.4(c) and 8.4(d) directly correspond to MLRPC 8.4(c) and 8.4(d). DLRPC 3.4(c), however, has no MLRPC analogue. 9 We conclude that Poverman also violated MLRPC 8.1(b) 10 by repeatedly failing to respond to correspondence from the CLE Commission and ODC even though the Board did not conclude that he violated the MLRPC 8.1(b) analogue, DLRPC 8.1(b). See Att’y Grievance Comm’n v. Brown, 353 Md. 271, 287 , 725 A.2d 1069 , 1076 ⁶⁰² (1999) (concluding that repeated failures to answer Bar Counsel’s requests for information violated MLRPC 8.1(b)); see also Att’y Grievance Comm’n v. Litman, 440 Md. 205 , 101 A.3d 1050 (2014) (concluding that attorney violated MLRPC 1.16(a)(1) notwithstanding that Disciplinary Board of the Supreme Court of Pennsylvania did not conclude that attorney violated the MLRPC analogue, Pennsylvania Rules of Professional Conduct 1.16(a)(1)).

We must determine what sanction an attorney “could expect in response to [these violations] were [they] to have occurred in Maryland.” Gordon, 413 Md. at 56 , 991 A.2d at 57 . In making this determination, we consider any mitigating factors. Id. at 63 , 991 A.2d at 61 . Maryland Sanction Bar Counsel contends that disbarment is warranted because Poverman made false representations that were intentionally deceitful.

A false representation is intentionally deceitful when the attorney knew the representation was false. Att’y Grievance Comm’n v. Siskind, 401 Md. 41, 70 , 930 A.2d 328, 345 (2007). Here, Poverman made two false representations: (1) he told the Clerk of the Supreme Court that he suffered two strokes; and (2) he certified on his 2013 registration statement that there was no disciplinary action pending or threatened against him. Bar Counsel contends that it is undisputed that Poverman knew both of these representations were false.

We disagree. The Board found Poverman’s mental state was “knowing” only with respect to failing to complete his CLE, disregarding communications from the CLE Commission, and making a false certification on his 2013 registration statement. The Board never found Poverman knew he had not suffered two strokes. Thus,