Attorney Grievance Commission v. Ruffin

BELL, Chief Judge. This is a reciprocal discipline action arising out of disciplinary proceedings initiated in Arizona, where Victoria G. Ruffin, the respondent, a member of that bar, exclusively practiced law. The Arizona Disciplinary Commission having concluded in those proceedings that she violated certain of the Arizona Rules pertaining to professional conduct, as prescribed in Rule 42 of the Rules of the Supreme Court of Arizona, “particularly ER 1.1 (competence), ER 3.1 (meritorious claims and contentions), ER 4.4 (respect for rights of third persons), ER 8.4(d) (misconduct prejudicial to the administration of justice), and Rule 51(e) (willful violation of a rule), (h) (failure to furnish information), (i) (refusal to cooperate) and (k) (willful violation of a court order),” the respondent was suspended from the practice of law in that State. Bar Counsel, acting at the ²⁴¹ direction of the Review Board, see Maryland Rule 16-709-a, 1 and premised on the acts and omissions of the respondent that were determined by the Arizona disciplinary proceedings to constitute misconduct, charged the respondent with engaging in misconduct as defined in Maryland Rule 16-701.k 2 specifically, with violating the Maryland counterparts of the Arizona Rules she was found to have violated, see Maryland Rules of Professional Conduct, Maryland Rule 16-812. 3 ²⁴² We referred the case to the Honorable Joseph P. Manck of the Circuit Court for Anne Arundel County to make findings of fact and draw conclusions of law.

When, after reasonable efforts to do so, the respondent could not be personally served, service was made, pursuant to Maryland Rule 16-811.g, on the Treasurer of the Clients’ Security Trust Fund, who subsequently certified his compliance with the requirement that he mail the pleadings and the court order to the respondent’s last known address. Thereafter, an order of default having been entered against the respondent, who did not move to vacate it, the hearing court held a hearing at which only the petitioner appeared and participated. Following the hearing, the hearing court made findings of fact and drew conclusions of law, as follows: “Findings of Fact “1. The Respondent was admitted to the Bar of the Court of Appeals of Maryland on June 26,1985. “2.

On April 4, 1997, the Respondent was decertified for nonpayment of the annual assessment by the Clients’ Security Trust Fund of the Bar of Maryland (CSTF). According to a Memorandum dated November 29, 2001, from Sandra Gipe, ²⁴³ CSTF Membership Manager, the Respondent’s name should not have been included on a decertification list sent to the Court of Appeals. The Respondent had applied for inactive/retired status, and her status should have been changed effective July 1, 1996. Ms. Gipe’s Memorandum indicates CSTF has taken steps to correct the Respondent’s erroneous decertification by notifying the Court of Appeals. “8.

The Respondent was admitted to the State Bar of Atizona in October 1992. In May 1996, she was suspended from practicing law in Aizona for nonpayment of Bar dues. “4. Pursuant to a Judgment and Order of the Supreme Court of Aizona dated May 30, 1999 ..., the Respondent was suspended from the practice of law in Aizona for a period of seven months, effective thirty (30) days from the date of the Judgment and Order, ‘for conduct in violation of her duties and obligations as a lawyer.’ “5. In a report prepared by the Disciplinary Commission of the Supreme Court of Aizona, appended to that Court’s Judgment and Order dated March 30, 1999, the Disciplinary Commission found that the respondent filed a frivolous motion to dismiss while representing a defendant in a civil case and that she failed to withdraw the motion when requested to do so by opposing counsel. “6.

The Respondent did not answer the disciplinary complaint filed in Aizona, and she did not otherwise appear- or participate in any stage of the Aizona disciplinary proceeding. “7. The Disciplinary Commission in Aizona concluded that the Respondent’s conduct violated Rule 42 of the Rules of the Supreme Court of Aizona (Arizona Rules of Professional Conduct), ‘particularly ER 1.1 (competence), ER 3.1 (meritorious claims and contentions), ER 4.4 (respect for rights of third persons), ER 8.4(d) (misconduct prejudicial to the administration of justice),’ and that the Respondent further violated A-izona Supreme Court ‘Rule 51(e) (willful violation of a rule), (h) (failure to furnish information), (i) (refusal to cooperate) and (k) (willful violation of a court order).’ ²⁴⁴ “8. The Disciplinary Commission in Arizona cited several aggravating factors in its report to the Supreme Court of Arizona and observed that the Respondent ‘appears to have abandoned the practice of law.’ “9. The Supreme Court of Arizona, by its Judgment and Order dated March 30, 1999, adopted the findings and conclusions in the report of that Court’s Disciplinary Commission. “10.

The Respondent has not filed an application for reinstatement from her suspension in Arizona. “Conclusions of Law “1. The Respondent is an ‘attorney’ as defined in Maryland Rule 16-701a and she is subject to the disciplinary authority of this State pursuant to Maryland Rule of Professional Conduct 8.5(a) for any violation of the Maryland Rules of Professional Conduct ‘in this or any other jurisdiction.’ “2. Pursuant to Maryland Rule 16-710e, ‘[a] final adjudication in a disciplinary proceeding by a judicial tribunal or a disciplinary agency appointed by or acting at the direction of a judicial tribunal that an attorney has been guilty of misconduct is conclusive proof of the misconduct in the hearing of charges pursuant to this Rule.’ “3 This Court concludes that the Respondent violated the ... Maryland Rules of Professional Conduct [with which she was charged by Bar Counsel] corresponding to the violations found in the Arizona disciplinary proceeding....” No exceptions have been filed to the findings of fact and conclusions of law either by the petitioner or the respondent, who did not appear in these proceedings.

The petitioner has, however, filed its recommendation for sanction. It is that the respondent be indefinitely suspended from the practice of law. In support of the recommendation, the petitioner asserts: “The Respondent remains suspended in Arizona. Bar Counsel has been unable to locate her in connection with this disciplinary proceeding.

Since abandoning her Arizona practice, the Respondent has taken no steps to regain her eligibility to practice law, either in Arizona or in Maryland. ²⁴⁵ Under the circumstances, Petitioner recommends that the Respondent be indefinitely suspended.” Ordinarily, when there are no exceptions taken by either party and the appropriateness of the proceedings or the charges has not been challenged, all that would remain for the Court’s determination would be to decide what sanction to impose. In this case, the record establishes that, when the disciplinary proceedings were initiated in Arizona, the respondent was not decertified for failure to pay the CSTF assessment, but rather was on retired/inactive status pursuant to Maryland Rule 16-811.f.2. 4 The threshold question, therefore, is whether an attorney, voluntarily under that status, who applied for that status prior to the pendency of any disciplinary proceedings or complaints, falls within the scope of Maryland Rule 8.5, addressing the jurisdiction of this Court to discipline attorneys, whether Maryland or out-of-state attorneys, 5 and, for purposes óf reciprocal discipline, is an attorney, as defined by Maryland Rule 16-701.a. For purposes of the attorney discipline system in this State, an attorney is ²⁴⁶ “a person admitted by the Court of Appeals to practice law in this State. For purposes of discipline or inactive status, the term also includes a person not admitted by the Court of Appeals who engages in the practice of law in this State, or who holds himself or herself out as practicing law in this State, or who has the obligation of supervision or control over another lawyer who engages in the practice of law in this State.” Maryland Rule 16-701.a.

Rule 8.5 provides: “(a) A lawyer admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State for a violation of these rules in this or any other jurisdiction. “(b) A lawyer not admitted by the Court of Appeals to practice in this State is subject to the disciplinary authority of this State for conduct that constitutes a violation of these Rules and that: “(1) involves the practice of law in this State by that lawyer, or “(2) involves that lawyer holding himself or herself out as practicing law in this State, or “(3) involves the practice of law in this State by another lawyer over whom that lawyer has the obligation of supervision or control.” The respondent has been admitted by this Court to practice in this State-as we have seen, on June 26, 1985 — and, apparently, did, in fact practice here for a time. It was not until 1992 that she was admitted to practice in the State of Arizona. Of importance to this inquiry is that it was in 1996, prior to the initiation or adjudication of any disciplinary charges in Arizona, that the respondent applied for inactiye/retired status, a status that is' recognized and provided for in the Maryland Rules. Subsection f.2 of Maryland Rule 16-811, the CSTF rule, authorizes the trustees to “provide in their regulations reasonable and uniform deadline dates for receipt of payments of assessments or applications for change to inactive/retired sta ²⁴⁷ tus.” It provides further for the conditions under which an attorney in such status may practice law: “without payment to the trust fund if (A) the lawyer is on inactive/retired status solely as a result of having been approved for that status by the trustees and not as a result of any action against the attorney pursuant to Title 16, Chapter 700 of these Rules and (B) the lawyer’s practice is limited to representing clients without compensation, other than reimbursement of reasonable and necessary expenses, as part of the lawyer’s participation in a legal services or pro bono publico program sponsored or supported by a local Bar Association, the Maryland State Bar Association, an affiliated bar foundation, or the Maryland Legal Services Corporation.” Regulations 6. and 7, promulgated pursuant to the Rule, implement the Rule: “6.

The Fund shall maintain a category of ‘Retired/Inactive’ lawyers, who shall not be charged assessments or late charges for any fiscal year after they are approved for such category. After transfer to such category, any such lawyer may be reinstated to active practice upon written notice to the Fund of his intent to resume active practice and upon payment to the Fund of all assessments due for the then current fiscal year. “7. A lawyer seeking to change from active practice to ‘Retired/Inactive” status with the Fund shall furnish to the Fund written evidence in form satisfactory to the Fund of his cessation of all active practice, directory listings, etc. Unless such written evidence is received by the Fund by August 31 of such fiscal year, such lawyer shall pay full assessments for the fiscal year in which such change occurs and shall pay in addition any and all sums due the Fund for prior assessments, late charges, etc.” The Rule and the regulations pursuant to it have nothing at all to do with discipline or sanctions. The Rule provides a mechanism whereby an attorney may be relieved of the obligation of paying the assessment required of all practicing ²⁴⁸ attorneys in order to be able to fulfill the purpose for which the CSTF was established: “to maintain the integrity and protect the good name of the legal profession by reimbursing, to the extent authorized by ...

Rule and deemed proper and reasonable by the trustees, losses caused by defalcations of members of the Bar of the State of Maryland or out-of-state attorneys authorized to practice in this State, ... acting either as attorneys or as fiduciaries.... ” There is a price exacted for being placed on inactive/retired status and thereby being relieved of the financial obligation inherent in the assessment-the attorney is prohibited from practicing law for a living; his or her practice of law is limited to representation without compensation, except reasonable and necessary expenses, as a participant in a legal services or pro bono publico program. 6 Maryland Rule 16-811.f.l. Because the status is neither discipline nor a sanction, nor, for that matter, associated with either, reinstatement to active practice may be quickly obtained, with written notice of the attorney’s intention to resume practice and the payment of the assessment due for the then current year. Regulation 6. This Court’s Disciplinary Rules applicable to this case recognized “inactive” status, as well.

Chapter 700 of Title 16 is captioned “Discipline and Inactive Status of Attorneys, thus suggesting that “inactive” status is akin to, or in the same category as, discipline. This is confirmed by Rule 16-711 which pertained to “Disposition of Charges.” Subsection b.4 of that Rule, dealing with review by the Court of Appeals, includes “placing attorney on an inactive status” as one of the options available to the Court for disposing of disciplinary charges. Rule 16-713 is captioned “Effect of Discipline, Inactive Status, and Resignation.” Subsection a, applicable to attorneys admitted to practice by this Court provides, as relevant: ²⁴⁹ “a. Attorney admitted by the Court of Appeals. 1.

Duty of Clerk. With regard to attorney admitted by the Court of Appeals to practice law, when an order suspending or disbarring the attorney from the practice of law, placing the attorney on inactive status, or accepting the attorney’s resignation from the practice of law in this State becomes effective, the Clerk of the Court of Appeals forthwith shall strike the name of the attorney from the register of attorneys in that Court. “2. Effect, the attorney may not practice law alter entry of an order disbarring the attorney, placing the attorney on inactive status, or accepting the attorney’s resignation or during the period the attorney, by order, is suspended. Upon expiration of the period of suspension specified in the order, the Clerk of the Court of Appeals shall replace the name of the attorney upon the register of attorneys in that Court, and the attorney may practice law, only after (a) the attorney files with the Bar Counsel a verified statement that the attorney has complied in all respects with the terms of the suspension and (b) Bar Counsel notifies the Clerk that the statement has been filed and Bar Counsel is satisfied that the attorney has complied with the terms of the suspension.” Significantly, the parallel provision relating to attorneys not admitted by the Court of Appeals does not reference “inactive” status.

See Rule 16-713.b. Also significant, Rule 16-714 includes “inactive” as one of the statuses for the termination or modification of which a petition to the Court of Appeals is required to be filed. The present Maryland Rules further confirm the nature of “inactive” status, and how this Court views attorneys placed in that status. Like former Rule 16-714, Rule 16-759 includes inactive status as one of the Court’s disposition options.

See also Rule 16 — 760(g)(2) (“Indefinite