Attorney Grievance Commission v. Shaffer

SMITH, Judge. In yet another case involving an attorney with problems with alcohol we shall do as we have done in some other cases, that is we shall indefinitely suspend with the right after thirty days to apply for reinstatement subject to certain conditions. Bar Counsel, acting pursuant to the provisions of Maryland Rule BY9, filed a petition/with us seeking disciplinary action against David Nordeck Shaffer, a member of the Maryland Bar since November 16, 1978. He charged that ¹⁹³ Shaffer violated Disciplinary Rules 1-102(A)(3), (4), (5), (6); DR 6-101(A)(l), (2), (3); and DR 2-110(B)(3).

(The rules are set forth in the opinion of the trial judge which we shall quote.) I Pursuant to Rule BV9 b we referred the matter for hearing to a judge of the Fourth Judicial Circuit of Maryland. He filed with us an opinion which states: “FINDINGS OF FACT “Respondent, David Nordeck Shaffer, was admitted to the practice of law on November 16, 1978 and has practiced in Oakland, Garrett County, since that time. He is presently 31 years old. “On May 20, 1985 the Attorney Grievance Commission of Maryland (Petitioner) filed a Petition for Disciplinary Action against Respondent____ “Petitioner alleges that Respondent was charged on three (3) separate occasions, May 1, 1981; November 2, 1982; and November 6, 1983, of Driving While Intoxicated. To the first charge he entered a guilty plea to a violation of Sec. 21-902(b) and paid a fine.

To each of the subsequent offenses he entered guilty pleas to a violation of Sec. 21-902(a) and was sentenced to incarceration, but those sentences were suspended and he was placed on probation. “Petitioner also alleges that Respondent was charged on three occasions with violations of Article 27, § 141 (bad checks). The first charge in December, 1982 was disposed of by a nolle prosequi, restitution having been made. In June, 1983 Respondent pleaded guilty and was fined $50.00 and restitution and supervised probation were ordered. Subsequently that verdict was stricken and probation before judgment was entered.

A second charge at that time was disposed of in like manner with a concurrent sentence. In August, 1983 two (2) charges were disposed of by a nolle prosequi because restitution had been made and Respondent was already on probation. An additional charge was ¹⁹⁴ placed on the stet docket with three (3) conditions, among which were that the Respondent was to avoid further bad checks and submit to the care of Richard Vincent, Alcohol Counselor of the Maryland State Bar Association. “Bar Counsel has also alleged that Respondent has neglected his practice, that charge flowing from his Court-ordered removal as Guardian of the property of Agnes Schlossnagle; that he undertook to handle a legal matter which he should have known that he was not competent to handle, namely a criminal defense in State v. Miller; and that he is not now competent, by reason of his mental or physical condition, to practice law. “Petitioner suggests that Respondent’s alleged misconduct has caused him to be in violation of the following Disciplinary Rules: “DR 1-102 Misconduct. (A) A lawyer shall not: (3) Engage in illegal conduct involving moral turpitude.

(4) Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation. (5) Engage in conduct that is prejudicial to the administration of justice. (6) Engage in any other conduct that adversely reflects on his fitness to practice law. “DR 6-101 Failing to Act Competently. (A) A lawyer shall not: (1) Handle a legal matter which he knows or should know that he is not competent to handle, without associating with him a lawyer who is competent to handle it.

(2) Handle a legal matter without preparation adequate in the circumstances. (3) Neglect a legal matter entrusted to him. ¹⁹⁵ “DR 2-110 Withdrawal from Employment (B) Mandatory withdrawal (3) His mental or physical condition renders it unreasonably difficult for him to carry out the employment effectively. “Or, in the alternative, that he is incompetent as defined by Maryland Rule BV(l)(h). “No evidence has been adduced to indicate that the Respondent is presently incompetent as defined by Maryland Rule BV(l)(h) and the Court concludes that Petitioner has not carried its burden of proof on this charge. “MOTOR VEHICLE OFFENSES “The cornerstone of Canon 1 is EC 1-5 which provides that: 'A lawyer should maintain high standards of professional conduct and should encourage fellow lawyers to do likewise. He should be temperate and dignified, and he should refrain from all illegal and morally reprehensible conduct. Because of his position in society, even minor violations of law by a lawyer may tend to lessen public confidence in the legal profession.

Obedience to law exemplifies respect for law. To lawyers especially, respect for the law should be more than a platitude.’ “Respondent’s convictions of three (3) alcohol-related motor vehicle offenses within two and one-half years is conduct which may tend to lessen public confidence in the legal profession, adversely reflects upon his fitness to practice and is prejudicial to the administration of justice. Therefore, such conduct is a violation of DR 1-102(A)(5) and (6). “BAD CHECK OFFENSES “Respondent was called upon to answer to charges under Art. 41, Sec. 141 (bad checks) on five (5) separate occasions. Two of the charges were concluded by a nol pros and one by the entry of a stet.

Two of the charges produced guilty pleas, later stricken and amended to probation before judgment. Thus, Respondent does not now stand convicted of any of the bad check charges. However, having entered guilty pleas he is saddled with the presumption of knowl ¹⁹⁶ edge of the insufficiency of funds as established by Art. 27, Sec. 142(a). To that extent his actions must be said to constitute, at the least, misrepresentation and, is therefore, a violation DR 1-102(A)(4).

Respondent has offered evidence in mitigation of those charges, including his special relationship with the drawee bank, the involvement only of his personal account and funds rather than professional accounts or clients’ funds and that the overdrafts were the result of social, rather than professional, misconduct. This Court, in a disciplinary proceeding, cannot re-evaluate or re-weigh the evidence in the criminal case. Attorney Grievance Commission v. Barnes, 286 Md. 474 [ 408 A.2d 719 ] (1979).. “Petitioner also urges that the bad check charges amount to moral turpitude, citing Attorney Grievance Commission v. Sperling, 288 Md. 576 [ 419 A.2d 1067 ] (1980). In Sperling , the respondent was convicted under Art. 27, Sec. 142, the predecessor of the present “bad check” statute, of obtaining services by means of a bad check with intent to defraud.

The current bad check statute has been somewhat softened and contains no reference to fraud or deceit. A bad check case involving deception must be prosecuted under the theft statute, not as a bad check case. Art. 27, Sec. 144. Specific criminal intent to defraud is not an element of the current bad check statute.

The ruling of Sperling relates to a different, and harsher, statute and is not sufficient to support a finding that Respondent is guilty of moral turpitude. Moral turpitude is: '... an act of baseness, vileness, or depravity in the private and social duties which a man owes to his fellow men, or to society in general, contrary to the accepted and customary rule of right and duty between man and man.’ Braverman v. Bar Assn. of Baltimore, 209 Md. 328 [ 121 A.2d 473 ] (1956). Unless the intent to defraud is an element of the crime of which a respondent is convicted the offense does not per se involve moral turpitude. Attorney Grievance Commission v. Walman, 280 Md. 453 [ 374 A.2d 354 ] (1977).

No attorney discipline cases charging misconduct ¹⁹⁷ predicated upon the present Art. 27, Sec. 141 have been decided. Therefore, under the rationale of Walman and Barnes Respondent’s violation of Art. 27, Sec. 141 constitutes neither fraud nor moral turpitude. “SCHLOSSNAGLE GUARDIANSHIP “Respondent was appointed guardian of the property of Agnes E. Sehlossnagle on June 6, 1983 and was discharged by Order of May 14, 1985 for having failed to perform the obligations of his office. The evidence clearly establishes that Respondent neglected the matter of the guardianship estate which had been entrusted to him by the Court and as a result violated DR 6-101(A)(3). “STATE V. MILLER “Respondent defended John M. Miller, who was charged with rape and lesser included offenses, in January, 1979. The deficiencies of his representation of Miller were detailed in this Court’s Opinion and Order granting Post Conviction relief on April 3, 1984.

That Opinion is a part of the record in these proceedings. The Court remains satisfied that the inadequacy of Respondent’s defense of Miller resulted solely from inexperience and not from any physical or mental incapacity. Nonetheless, Respondent’s failures result in a violation of DR 6-101(A)(l) in that he should have known that he was not sufficiently competent to undertake a criminal defense of a crime of violence as his first Circuit Court case. “SUMMARY “The Court finds, by clear and convincing evidence, that Respondent: (1) As a result of his DWI offenses has violated DR 1-102(A)(5) and (6); (2) As a result of his bad check offenses has violated DR 1-102(A)(4); (3) As a result of the Sehlossnagle matter has violated DR 6-101(A)(3); (4) As a result of the Miller case has violated DR 6-101(A)(l); and (5) As a result of his physical and mental condition, and his failure to withdraw from matters he was handling while in an impaired condition, violated DR 2-110(B)(3). ¹⁹⁸ “The Court further finds that there is no clear and convincing evidence of Respondent's present incompetence under Rule BV(l)(h). “MITIGATION “The record establishes that during the period of time which found Respondent charged with driving while intoxicated and with the bad check charges he was using alcohol to excess and that his abuse was a causative factor in his behavior. In fact he was diagnosed at the Preston Memorial Hospital, Preston Alcoholic Treatment Service as being alcoholic and was treated for a period of 30 days.

Having considered the medical records and having heard Respondent’s own testimony the Court concludes that his alcoholism was a substantial causative factor in his inappropriate personal behavior leading to the DWI and bad check offenses and was likewise a substantial causative factor in his neglect of his professional obligations in the Schlossnagle matter. Attorney Grievance Commission v. Truette, 299 Md. 435 [ 474 A.2d 211 ] (1984); Attorney Grievance Commission v. Willcher, 287 Md. 74 [ 411 A.2d 83 ] (1980). “Other relevant mitigating factors are the attorney’s contrition, an otherwise unblemished record, the absence of any aggravating circumstances and the absence of personal gain. Prince George’s Co. Bar Ass’n. v. Vance, 273 Md. 79 [ 327 A.2d 767 ] (1974). Respondent has expressed contrition and there has been no proof of personal gain or other aggravating circumstances.

He has since limited his practice to matters he feels competent to handle. “RECOMMENDATIONS “Truette, supra, provides the trial court with the opportunity of suggesting disposition, recognizing that the ultimate authority rests with the Court of Appeals. This Court believes that the ultimate sanction of disbarment is inappropriate under these facts. The purpose of disciplinary proceedings for professional misconduct is to protect the public from attorneys unfit to practice, not necessarily to punish ¹⁹⁹ the offender. Attorney Grievance Commission v. Stewart, 285 Md. 251 [ 401 A.2d 1026 ] (1979). “Respondent’s serious alcohol abuse seems to have been abated and he has functioned appropriately since his discharge from the Preston program on March 1, 1984.

However, the fact of his continued social drinking and his failure to accept the recommended after care is troubling to the Court, particularly in the face of the pending disciplinary proceedings. Therefore it is recommended that