Attorney Grievance Commission v. Roberson

BATTAGLIA, Judge. This is a reciprocal discipline action arising out of disciplinary proceedings initiated in Georgia, where the Respondent, David Roberson (hereinafter “Roberson” or “Respondent”), a member of that bar, exclusively practiced law. 1 Respondent was disbarred from the practice of law in Georgia on April 5, 2001, 2 when the Supreme Court of Georgia determined, after ³³⁰ the Review Panel of the State Disciplinary Board recommended disbarment, that Roberson had violated the following Georgia State Bar Standards: 4 (a lawyer shall not engage in professional conduct involving dishonesty, fraud, deceit, or wilful misrepresentation); 30 (except with the written consent of or written notice to his client after full disclosure a lawyer shall not accept or continue employment if the exercise of his professional judgment on behalf of his client will be or reasonably may be affected by his own financial, business, property or personal interests); 31 (a)(a lawyer shall not enter into an agreement for, charge, or collect an illegal or clearly excessive fee); 31(d)(2)(upon conclusion of a contingent fee matter, the lawyer shall provide the client with a written statement stating the following: (i) the outcome of the matter; and (ii) if there is a recovery: (aa) the remittance to the client; (bb) the method of its determination; (cc) the amount of the attorney fee; and (dd) if the attorney’s fee is divided with another lawyer who is not a partner in or an associate of the lawyer’s firm or law office, the amount of fee received by each and the manner in which the division is determined); 36 (a lawyer shall not continue multiple employment if the exercise of his independent professional judgment on behalf of a client will be or is likely to be adversely affected by his representation of another client, except to the extent permitted under Standard 37); 44 (a lawyer shall not without just cause to the detriment of his client in effect wilfully abandon or wilfully disregard a legal matter entrusted to him); 61 (a lawyer shall promptly notify a client of the receipt of his funds, securities or other properties and shall promptly deliver such funds, securities or other properties to the client); 63 (a lawyer shall maintain complete records of all funds, securities, and other properties of a client coming into the possession of the lawyer and promptly render appropriate accounts to his client regarding them); and 65(A)(a lawyer shall not commingle his client’s funds with his own, and shall not fail to account for trust property, including money and interest paid on the client’s money, if any, held in any fiduciary capacity) of Bar Rule 4-102(d). ³³¹ The Supreme Court of Georgia disbarred Respondent after having concluded that the Respondent violated these Standards while providing representation in a medical malpractice action filed on behalf of a woman who slipped into a coma after complications arose during a routine Caesarian section performed after Roberson had been retained by the woman’s common law husband in August of 1994. In re Roberson, 273 Ga. 651 , 544 S.E.2d 715 (2001). On January 10, 2002, the Attorney Grievance Commission of Maryland (hereinafter “Bar Counsel”), acting pursuant to Rules 16-751 3 and 16-773 4 of the Maryland Rules, filed a ³³² Petition for Disciplinary or Remedial Action against Roberson to which a certified copy of the Georgia Supreme Court’s disciplinary order was attached.

In the Petition, Bar Counsel alleged that Respondent is subject to the disciplinary authority of this State pursuant to Maryland Rule of Professional Conduct (hereinafter “MRPC”) 8.5(a). 5 In addition, Bar Counsel charged Respondent with engaging in misconduct as ³³³ defined in Maryland Rule 16-701(i) 6 and with violating the Maryland counterparts of the Georgia State Bar Standards he had been found to have violated, and more specifically, MRPC 8.4 (Misconduct), 7 MRPC 1.5 (Fees), 8 MRPC 1.7 (Conflict of ³³⁴ Interest: General Rule), 9 and MRPC 1.15 (Safekeeping Property). 10 (a) A lawyer shall not represent a client if the representation of that client will be directly adverse to another client, unless: (1) the lawyer reasonably believes the representation will not adversely affect the relationship with the other client; and (2) each client consents after consultation. (b) A lawyer shall not represent a client if the representation of that client may be materially limited by the lawyer’s responsibilities to another client or to a third person, or by the lawyer’s own interests, Unless: (1) the lawyer reasonably believes the representation will not be adversely affected; and (2) the client consents after consultation. (c) The consultation required by paragraphs (a) and (b) shall include explanation of the implications of the common representation and any limitations resulting from the lawyer's responsibilities to another, or from the lawyer's own interests, as well as the advantages and risks involved. ³³⁵ On May 9, 2002, we referred the case to the Honorable Philip Caroom of the Circuit Court for Anne Arundel County for a hearing. 11 Following the hearing on August 14, 2002, during which the parties submitted an “extensive statement” of “Stipulated Facts and Exhibits” and additional agreed exhibits, the hearing court made findings of fact, as follows: I. Findings of Fact A. Procedural history Based on the stipulations and agreed exhibits, the undersigned finds the following facts: 1. Roberson was admitted to practice law in Maryland by the Court of Appeals on December 30, 1976.

He was appointed as an Assistant U.S. Attorney for the Southern District of Georgia on January 3, 1978 and was admitted ³³⁶ to the State Bar of Georgia on November 7, 1979. 1 Roberson subsequently entered private practice in Georgia. 2. Prior to the present proceedings, Roberson never has been subject to any disciplinary proceedings in either Maryland or Georgia. He was decertified on April 13, 1999, by Maryland, however, for nonpayment of his annual Clients’ Security Trust Fund assessment. 3. The State Bar of Georgia initiated an investigation of Roberson on February 21, 1997, and filed its Formal Complaint (“the complaint”) against Roberson on December 31, 1997, alleging nine (9) serious violations of the standards set by Georgia’s Bar Rules, seeking appropriate discipline and reimbursement of fees.

Joint Exhibit B, pp. 6 through 33. All alleged violations related directly or indirectly to representation of the late Julia Mae Shiggs 2 and her husband, initially in a medical malpractice claim between April 1995 and October 1996. 4. The Supreme Court of Georgia (“the Court”), in the interim between the investigation’s initiation and the complaint’s filing, by administrative Order of June 13, 1997 and effective July 1, 1997, changed the standard of proof for attorneys’ disciplinary cases from “beyond a reasonable doubt” to “clear and convincing evidence.” Amended Georgia Bar Rule 4-221(e)(2); joint exhibit. 5. On June 13, 1997, the Court also amended the Georgia Bar Rules, establishing the system of special master’s trials, followed by a Review Panel; then, “[ajlleged errors in the trial may be reviewed by the [Georgia] Supreme Court when the findings and recommendation of the Review Panel are filed with the Court.” Amended Georgia Bar Rule 4-213(a); joint exhibit 5.

The latter amendment, removing the right to a jury trial, also superseded state legislation which had provided jury trials for disbarment actions. [Official Code of Georgia Annotated], sec. 15-19-32; see joint exhibits 4 and 4A. ³³⁷ 6. The Supreme Court of Georgia, as provided by these amended rules, appointed a Special Master to take testimony as to this matter on November 24, 1998. The Special Master held a hearing in the matter between April 19 and 22, 1999. Joint exhibits 6A through 6D. 7.

The Special Master filed his 54-page report of facts and recommendations for discipline on March 27, 2000. This included the determination that the newly-adopted standard of proof as to “clear and convincing evidence” should be applied, rather than the earlier standard of “beyond a reasonable doubt.” Joint exhibit B, pp. 484-587. The Special Master found that Roberson committed all nine (9) alleged ethical violations, recommending disbarment, a public reprimand and restitution of attorney’s fees received. 8. The Report of the Review Panel, relying on the Special Master’s Report, was filed July 17, 2000.

Joint exhibit B, pp. 726-729. With one exception, 3 the Review Panel approved all findings and recommendations of the Special Master. 9. The Supreme Court of Georgia, in its April 5, 2001, per curiam opinion, also approved the findings that Roberson had committed all nine (9) alleged violations by “clear and convincing evidence,” 4 ruling that disbarment was the appropriate sanction and requiring “full restitution” before any petition for reinstatement. Joint exhibit C. 10.

The specific facts of the representation, as found by the Special Master and approved by the Georgia Supreme Court, are not disputed by ³³⁸ Roberson in these Maryland disciplinary proceedings. 5 These may be summarized as follows: B. Facts of representation In August 1994, Julia Mae Shiggs (“Shiggs”), a 34 year old woman, was admitted to Savannah’s Memorial Medical Center (“the hospital”) to give birth to her fourth child. Ms. Shiggs experienced complications during a Caesarian section and slipped into a coma from which she never awoke. 6 SMR2 [Special Master’s Report]. Shortly thereafter, Michael Mydell (“Mydell”), Ms. Shiggs’ common-law husband, contacted Roberson to file a medical malpractice suit on behalf of Ms. Shiggs and a loss of consortium claim for himself. Special Master Report (“SMR”) 2-3. 7 An Authority to Represent agreement (the “fee agreement”) was executed on September 28, 1994, in which Mydell retained the services of Roberson for a 40% contingent fee.

Roberson, in November 1995, with the permission of Mydell, hired John Thomas Woodall (“Woodall”), another experienced trial attorney to assist ³³⁹ with the litigation. However, Roberson and Woodall did not execute a written agreement as to attorney’s fees. Instead, they had a “gentleman’s agreement” according to Roberson and shook hands. SMR 5.

Woodall, it was understood, would have no personal contact with Roberson’s clients and would receive instructions only from Roberson. Roberson and Woodall filed suit on April 14, 1995 and alleged counts for medical malpractice and loss of consortium. SMR 5. However, in September 1995, Roberson informed Mydell that the case expenses were escalating and he needed to contribute $10,000 to the costs of prosecuting the claims.

SMR 6. Mydell and Roberson then agreed to amend their Fee Agreement when Mydell could not pay the $10,000. SMR 6. The new contract between Mydell and Roberson on September 1, 1995, required that Roberson receive 50% of the proceeds of any recovery in the case.

SMR 6. On the eve of trial after learning that Mydell had impregnated another women while his wife was still in a coma, Roberson decided that the loss of consortium claim could adversely impact Ms. Shiggs’ medical malpractice claim. Mydell subsequently agreed to dismiss his loss of consortium claim after discussing this matter with Roberson. SMR 7.

The trial began on January 16, 1996, and ended after six (6) days with a settlement agreement on January 22, 1996. The settlement agreement consisted of a collective cash payment of $3, 325,000 to be paid by defendants within 72 hours to Roberson for Ms. Shiggs’ benefit. Importantly, the settlement agreement involved the participation of trial judge Gregory Fowler: Roberson agreed that “court approval of any valuation [of services provided in addition to the monetary payments] would be necessary.” SMR10 & 12; emphasis in original. Also, as part of the settlement agreement, the defendants insisted that Mydell’s and all Ms. Shiggs’ four children’s inchoate wrongful death claims be released.

SMR 14. Despite Mydell’s stated misgivings and refusal to participate, ³⁴⁰ Roberson agreed and arranged the releases of the children’s claims, obtaining the local Probate Court’s approval for this in July 1996. SMR 14-15. Further supplementing the monetary aspects of the settlement agreement, the hospital agreed to provide certain future medical services to Ms. Shiggs.

SMR 12. This would include all aspects of Ms. Shiggs’ care, including certain daily respiratory therapy & treatment. A value of these future services was required, in part, for the purpose of determining attorneys’ fees. SMR 12.

The value of future services — of respiratory treatment only — had been calculated for trial by Dr. Bart to be $1,091,909, based on the present value of seven year’s worth of respiratory expenses. SMR 13. 8 This information was provided on January 23,1996, by Woodall 9 to Roberson. Roberson, nevertheless, valued the future medical services in his submission to the trial court at $1,425,000, using this figure in the Settlement Statement which he presented to Mydell and filed with the Court. SMR 13-14. 10 Later in August 1996, when Roberson was asked for his documentation of the $1,425,000 figure, Roberson: a) told Woodall that he (Roberson) “had lost the papers” with the $1,425,000 figure; b) contended that $1,425,000, not $1,091,909, was the figure that Woodall supplied and c) suggested to the trial judge that the pages may have been switched without his consent..

SMR 13, 30 and 33. To the contrary, Woodall testified, as to the August conversation with Roberson, This is the first time in my life I had heard of $1,425,000. I knew that I had only faxed him on January whatever it was in 1996,1 had only faxed him a figure for respiratory therapy that was $1,091,000, and I did not know what the difference was either.” SMR 30. Woodall got the impression from talking with Roberson that Roberson received the increased figure directly from Dr. Bart; however, when Woodall ³⁴¹ asked her, Dr. Bart informed Woodall that she had no other calculations and had done none for Roberson directly.

SMR 31. Knowing that the larger figure was necessary to justify the amount of attorney’s fees already distributed from the settlement proceeds, Woodall 11 on behalf of himself and Roberson asked Dr. Bart to sign an affidavit which made up the approximately $300,000 difference between the future medical care figures by assuming the need for additional hospital stays, if she was “comfortable” with this. SMR 31. The Special Master also considered testimony as to the source of the $1,425,000 calculation from Karen Alston, a paralegal formally employed by Roberson.

However, he rejected Ms. Alston’s testimony as inconsistent and containing too many “memory gaps.” For example, Alston testified both 1) that Roberson was her source of the $1,425,000 figure, which he wrote for her on a scrap of paper and 2) that Woodall was her source of the figure, which he “had to tell her how to write.” SMR 13-14, note 7. Roberson complains that the Special Master found it “more likely” that the increase between the $1,091,909 future medical bill and the $1,425,000 was added on by Roberson, arguing that this phrase indicates the Master applied a mere “preponderance” standard of proof rather than the more stringent and legally required “clear and convincing” standard. SMR 13. However, the undersigned finds that the “more likely” reference has been taken out of context and misconstrued.

In context, the undersigned finds that Special Master infelicitously used this phrase ³⁴² simply to indicate that he gave no credibility to Roberson’s alternate explanations of how the $300,000 discrepancy arose. Upon summarizing the entirety of the evidence on this point, it is plain that the Special Master found clear and convincing evidence that Roberson had violated professional standards by “maintaining dishonest, fraudulent, and deceitful records of the settlement ... which contained willful misrepresentations.” SMR 38-42. Notably, the Georgia Review Panel approved the Special Master’s report, excepting and disagreeing that the evidence on this point was simply “more likely”; instead, the Review Panel found “the evidence is clear and convincing that Respondent Roberson increased the amount of future medical services from $1,091,000 to $1,425,000 in order to enlarge the amount of attorneys’ fees claimed.... ” Joint Exhibit B, p. 727. The Georgia Supreme Court in its per curiam opinion, affirmed the Review Board’s “clear and convincing” evidence finding and made no reference to the Special Master’s “more likely” language.

Joint Exhibit C. C. Disbursements During the settlement discussions, Roberson decided to establish a “special needs trust” where a portion of the settlement funds could be set aside free of Medicare or Medicaid liens. As a result, Roberson returned a $600,000 check received from the defendant doctor to his attorney, Greg Hodges, and had it replaced with two checks: (1) a $400,000 check for the special needs trust; and (2) a $200,000 check for the trust belonging to Ms. Shiggs’ children. 12 Roberson had Hodges retain the checks until the trusts were set up and could be funded, but Roberson never had the trusts funded and they remained in Hodges’ drawer until a new guardian was appointed. SMR 16. After the settlement was completed, Roberson paid Woodall $1,100,000 on January 26, 1996, which was paid from ³⁴³ settlement funds held in trust prior to court approval of the settlement.

SMR 18-19. This payment was made, despite Roberson’s prior oral agreement with Woodall on a “flat fee” of $1,000,000 for Woodall’s services, irrespective of the amount recovered. On February 26, 1996, Roberson issued a check from his trust account to Mydell in the amount of $151,359.33. Tr. 135-37. 13 Roberson also did not seek court approval prior to making this disbursement to Mydell.

SMR 20. Further, Roberson made a payment from his trust account on February 16, 1996, in the amount of $30,000 to Mydefl’s sister Ms. Loretta Barnes (“Barnes”) for the estimated value of her care of Ms. Shiggs’ four children. This payment also was made before the probate court approved the disbursement. SMR 21.

In addition, Roberson wrote four checks to himself from his trust account totaling $600,000 between January 31,1996 and February 18, 1996. SMR 21. 14 Roberson also wrote four additional checks totaling $633,112 as payment for the purchase of a church. 15 Id. Again, all these checks written by Roberson to himself were made without court approval. SMR 22.

Based [on] his aforementioned increase in the figure for future medical fees, Roberson increased the amount of contingent attorney’s fee claimed from one-half of the cash settlement of $3,325,000 — i.e., $1,662,500 — to one-half the larger settlement $4,750,000 — i.e., over $2,000,000 total. Eventually, Roberson and Woodall were sued by the administrator of Ms. Shiggs’ estate for legal malpractice and other claims related to the settlement agreement. Woodall settled the claim against him obtaining a full release for payment of $350,000. Roberson, after the disbarment order of the Georgia Supreme Court, settled the estate’s claim against him with payment of $449,385.26.

Stipulated Facts and Exhibits, esp. exhibit 19 dismissal, dated April 19, 1999. ³⁴⁴ II. Conclusions of Law The undersigned finds that the Georgia- disciplinary proceedings have satisfied the requirements of Maryland Rule ' 16 773, which provides that “a final adjudication in a disciplinary ... proceeding by another court ... that an attorney has been guilty of professional misconduct ... is conclusive evidence of that misconduct in any [Maryland] proceeding ... [unless the other court’s adjudication] was so lacking in notice or the opportunity to be heard as to constitute a deprivation of due process ... [or] there was such an infirmity of proof establishing the misconduct as to give rise to a clear conviction that the Court ... cannot accept as final the determination of misconduct. Maryland Rule 16-773(e)(l), (e)(2), and (g). A. Due Process issues Roberson’s two complaints as to his due process rights relate to the denial of: 1) his motion for application of the superseded, stricter standard of proof; and 2) his belated 16 demand for a jury trial, also superseded by the amended Georgia Bar Rule.

Initially, the undersigned notes that Maryland Rule 16-773 does not reference the full gamut of due process issues, but rather limits challenges of out-of-state proceedings to “notice” and “opportunity to be heard.” There has been no contention that Roberson lacked notice. And, the undersigned finds that he clearly had the opportunity to be heard ³⁴⁵ at three court levels: the Special Master’s hearing, the Review Board proceeding and the appeal to the Georgia Supreme Court. In effect, Roberson asserts that a “due process” opportunity to be heard requires a jury trial for attorney disciplinary proceedings. To the contrary, Maryland’s Court of Appeals has agreed with the Georgia Supreme Court decision herein that, while attorney disciplinary matters require basic due process protections, such rights are not coextensive with the rights of criminal defendants: neither findings “beyond a reasonable doubt,” nor jury trial are required See, as to jury trials, Attorney Grievance Commission v. Kerpelman, 288 Md. 341 , 420 A.2d 940 (1980), cert. den. 450 U.S. 970 , 101 S.Ct. 1492 , 67 L.Ed.2d 621 (1981); see, as to comparison with criminal proceedings, Maryland State Bar Association v. Sugar-man, 273 Md. 306, at 315 , 329 A.2d 1 (1974), cert. den. 420 U.S. 974 , 95 S.Ct. 1397 , 43 L.Ed.2d 654 (1975).

Roberson also suggests that the Georgia Supreme Court erred by changing the procedural rights to which he was entitled by legislation and prior rule after the alleged misconduct but before the filing of court action against him. The inherent authority of Georgia’s Supreme Court to regulate the practice of law and the disciplinary proceedings as to lawyers has been found properly to supersede the efforts of the state legislature in this area. As with other constitutional challenges to the courts’ authority to regulate attorneys, the U.S. Supreme Court has declined to intervene in such matters. Wallace v. Wallace, 225 Ga. 102, 166 S.E.2d 718 , cert. den. 396 U.S. 939 , 90 S.Ct. 369 , 24 L.Ed.2d 240 (1969).

This construction of the courts’ disciplinary authority is identical to the Maryland Court of Appeal’s interpretation of its own authority. Cf., Annotated Code of Maryland, ³⁴⁶ Courts and Judicial Proceedings Art., sec. 1-201 and Petite v. Estate of Papachrist, 219 Md. 173 , 148 A.2d 377 (1959). B. Application of standards as to professional misconduct Based on the factual findings discussed, supra, the undersigned has found no “infirmity of proof establishing the misconduct as to give rise to a clear conviction that the Court ... cannot accept as final the determination of misconduct.” Maryland Rule 16-773. Following is a discussion of specific violations of Georgia Bar Rules: 17 ³⁴⁷ APPENDIX [[Image here]] ³⁴⁸ [[Image here]] [[Image here]] ³⁴⁹ [[Image here]] Count I-conduct involving dishonesty, fraud, deceit, or wilful misrepresentation Georgia Bar Standard 4) On this point, the Special Master’s report stated “As to [two points] only, the record is devoid of clear and convincing evidence of any violation by Roberson as a matter of law.” SMR 39.

Phrased in the positive, the Special Master found clear and convincing evidence on various points as to unprofessional conduct involving dishonesty, fraud, deceit or wilful misrepresentation as to: a) representing to client Mydell that the [actual] value of future medical services for Ms. Shiggs was $1,425,000 [despite absence of any documentation or specific evidence of this]; b) representing to the Chatham County Probate and State courts that the value of future medical services was $1,425,000 [despite absence of any documentation or specific evidence of this]; ³⁵⁰ c) providing false and misleading assumptions to [economist] Dr. Bart [for use in an affidavit as to estimated future medical expenses]; and d) paying [Mydell and his sister] money belonging to Ms. Shiggs [while not properly disclosing the basis for such payments for the courts’ approval]. SMR 20-21, 38-42. Count II-conflict of Interest — (Georgia Bar Standard 30) Related to the inflation of future medical bills, the Special Master found that Roberson failed to disclose a conflict of interest when he did not tell his client that this valuation question might result in an increase of counsel fees in Roberson’s interest and to the detriment of the client. SMR 43^4.

Count III-clearly excessive fee — (Georgia Bar Standard 31.a.) The initial contingent fee was increased from 40% to 50% of all amounts recovered. With the inclusion of future medical services’ valuation, which were not yet provided, the attorneys’ fee share of actual cash again was boosted to 72%. SMR 44-45. The Georgia Supreme Court found that this percent was excessive and Maryland similarly has held this level of contingency fee generally is excessive.

The Court of Appeals has stated that “it is generally a violation of the rule for the attorney’s stake in the result to exceed the client’s stake.” Attorney Grievance Comm’n of Maryland v. Korotki, 318 Md. 646, 649 , 569 A.2d 1224, 1226 (1990). Count IV-contingent fee shared improperly with another lawyer-(Georgia Bar Standard 31.d.) The Georgia standard, like the Maryland rule, as to disclosure of contingent fee arrangements with other counsel, required a written statement to be provided to the client of all details. This was not done. SMR 45-46.

Count V-multiple employment impairing professional judgment-(Georgia Bar Standard 36) Roberson provided multiple representation in this case by concurrent representation of: Ms. Shiggs, her common law ³⁵¹ husband Mydell-both individually and as Ms. Shiggs’ guardian, as well as Ms. Shiggs’ children, although there was no written agreement as to representation or attorney’s fees as to the children. SMR 46-49; Stipulation, pp. 529-531. It is clear that Roberson’s professional judgment was impaired in this multiple representation context in that: 1) he paid Mydell and his sister a portion of these settlement funds without prior court authorization, and 2) he failed to complete arrangements agreed upon to deposit a portion of settlement funds into trust for benefit of the children. Id.

The lack of court authorization of payments to Mydell and his sister is significant in that there was no showing required that the amounts of these-payments were proportional to any actual services rendered, rather than being an arbitrary amount which would serve to dissuade these witnesses from raising questions about any other settlement issue. SMR 41, 49 and 52. Count VI-wilfully disregarding a legal matter entrusted by client — (Georgia Bar Standard 44) During settlement discussions with defendants’ counsel, Roberson decided to ask that a “special needs” trust be established for benefit of Ms. Shiggs’ children to avoid Medicare or Medicaid liens. For this reason, Roberson returned a $600,000 settlement check received from the defendant doctor to his attorney, Greg Hodges, and had it replaced with two checks: 1) a $400,000 check for the special needs trust; and 2) a