Attorney Grievance Commission v. Shryock

GREENE, J. We have before us two petitions for disciplinary or remedial action filed by Bar Counsel, on behalf of the Attorney Grievance Commission, against respondent, Charles M. Shryock, III. Although the petitions were filed separately, involve different matters, and were referred to different judges for hearing, upon our receipt of the findings and conclusions of the hearing judges, we consolidated the petitions and decided to address the matters in this one Opinion. We note, at the outset, that Shryock has been indefinitely suspended from the practice of law in Maryland since October 2, 2005. Attorney ¹⁰⁸ Grievance Comm’n v. Shryock, 388 Md. 622 , 881 A.2d 1147 (2005).

Petition No. 16, which involves Bar Counsel’s complaint that Shryock continued to use his attorney trust account while suspended from the practice of law and knowingly failed to respond to Bar Counsel’s lawful demand for information, was filed on July 13, 2007. In accordance with Maryland Rule 16-752(a), 1 we referred the petition to Judge Sean D. Wallace, of the Circuit Court for Prince George’s County, who conducted a hearing on December 17, 2007, and presented to us his findings of fact and conclusions of law. Specifically, Bar Counsel alleged that Shryock violated the Maryland Rules of Professional Conduct (MRPC) 5.5(b)(2) (Unauthorized practice of law) 2 ; 8.1(b) (failure to respond to Bar Counsel’s lawful demands) 3 ; and 8.4(a), (c), and (d) (Misconduct) 4 As to the facts, Judge Wallace found: ¹⁰⁹ In accordance with Rule 16-757(b), all factual findings are based on the clear and convincing standard, except as specifically stated otherwise. Furthermore, the facts are essentially undisputed.

The Respondent was admitted to the Maryland Bar on November 9, 1979. By Order of the Court of Appeals, Respondent was indefinitely suspended from further practice of law in this State, effective on October 2, 2005. At the time of his suspension, Respondent had an attorney trust account in the name of “CHARLES M. SHRYOCK III, ESQ., MD/IOLTA ATTY TRUST ACCT.” The deposit slips and checks associated with this account also bore the same designation. Respondent was familiar with the requirements of Rule 16-760.[ 5 ] Pursuant to Rule 16-760(c), Respondent closed his law office, concluded all matters which he could, notified clients with any unfinished matters of his suspension, withdrew from all pending matters, and notified all telephone directories to delete any reference to him as an attorney.

Rule 16-760(d)(3) prohibited Respondent from using any stationery, bank account, checks, or labels on which the respondent’s name appears as an attorney or in connection with any office for the practice of law. ¹¹⁰ However, Respondent kept open his attorney trust account. He had been advised by his counsel that he could keep it open to deal with the resolution of past matters and collection of fees earned prior to his suspension. Following his suspension Respondent acted as a real estate broker using a license he had obtained years before. Respondent deposited, into his attorney trust account, monies related to his real estate business and other personal matters, and made disbursements from the account using checks with the designation “CHARLES M. SHRYOCK III, ESQ., MD/IOLTA ATTY TRUST ACCT.” On October 12, 2006, Bank of America sent an overdraft report to the Attorney Grievance Commission related to Respondent’s attorney trust account.

That report was followed soon thereafter by two additional overdraft reports related to that account. As a result, Deputy Bar Counsel Glenn Grossman wrote to Mr. Shryock on October 17, 2006 asking for an explanation of the overdraft and seeking copies of “your client ledger cards, deposit slips, cancelled checks (front and back, if available), and monthly bank statements for the period July 2006 to present.” Respondent immediately contacted Melvin G. Bergman, Esq., to represent him in connection with this matter. However, neither Respondent nor Bergman timely filed a written response. On November 24, 2006, Sterling Fletcher, an investigator for Petitioner, telephoned Respondent to inquire about the matter.

Respondent told Fletcher that “it was a mistake on his part ... he didn’t get to deposit the money into the account in time ... that he was using the account for his real estate business and that he has since closed out the account.” Respondent further stated that he would follow up with Bergman to find out what happened to the response. Bergman had several telephone contacts with Bar Counsel regarding this matter after the initial Grossman letter of October 2006. This resulted in an extension of the time in which to file a written response until January 12, 2007. ¹¹¹ However, neither Respondent nor his counsel filed such a written response until April 2, 2007, nine days before the peer review panel hearing. Further, Respondent never provided the requested documentation to Bar Counsel either directly or through his counsel.

Another request was made on May 18, 2007 for such materials. Respondent did not provide them, and thus Bar Counsel issued a Bank Records Subpoena to Bank of America to obtain the requested items. The Respondent repeatedly expressed remorse for his actions in this case. Based upon the findings of fact, Judge Wallace determined that Shryock violated MRPC 5.5(b)(2) by “maintaining and using his attorney trust account, and the deposit slips and checks related thereto, which bore the designation ‘CHARLES M. SHRYOCK, III, ESQ., MD/IOLTA ATTY TRUST ACCIY ” Judge Wallace further determined that Shryock violated MRPC 8.1(b) “in failing to file a written response to Bar Counsel[’]s inquiry for more than six months and also by failing to provide the documentation requested by Bar Counsel in October 2006 and May 2007.” Further, Judge Wallace determined that Shryock violated MRPC 8.4(a), reasoning that the result was “axiomatic[, the court] ... having found a violation of Rule 5.5 and 8.1.” The hearing judge determined that Shryock did not violate MRPC 8.4(c) and (d).

Judge Wallace reasoned that “[a]s to subsection (c), the Court does not find that Respondent had any dishonest intent in continuing to use his attorney trust account after he was suspended.” According to the hearing judge, “Respondent was using the account (albeit improperly) to avoid the inconvenience and expense of opening a new account without the attorney designations.” As to MRPC 8.4(d), the hearing judge determined that there was no violation because “Bar Counsel was unable to specify how Respondent’s conduct was prejudicial to the administration of justice.” Neither Bar Counsel nor Shryock filed exceptions to the ¹¹² findings of the hearing court. Pursuant to Rule 16-759(b)(2) 6 we treat the findings of fact as established for the purpose of determining the appropriate sanction. Attorney Grievance Comm’n v. Stolarz, 379 Md. 387 , 397 n. 5, 842 A.2d 42 , 47 n. 5 (2004). Petition No. 68 involves Bar Counsel’s complaint that Shryock continued to practice law, while suspended, with regard to certain real estate matters and through the course of his activities violated MRPC 1.8 (Conflict of Interest) 7 ; 4.3 (Dealing with Unrepresented Person) 8 ; 5.5(a) (Unauthorized Practice of Law) 9 ; and 8.4(a), (b), (c), and (d) (Misconduct). 10 ¹¹³ In accordance with Maryland Rule 16-752, we referred the petition to Judge Beverly J. Woodard, of the Circuit Court for Prince George’s County, who conducted a hearing on June 16, 2008, and presented to us her findings of fact and conclusions of law. 11 As to the facts Judge Woodard concluded: Mark H. Wittstadt, Esquire (Wittstadt) wrote to Bar Counsel on February 15, 2007 to report his concerns regarding Respondent’s activities regarding real estate property located at 1002 Shelby Drive, Oxon Hill, Maryland 20745 (hereafter the “Shelby Drive property”).

After an investigation Bar Counsel originally determined Respondent had engaged in professional misconduct as defined in Maryland Rule 16 — 701(i) and violated the following Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812[:] Rule 1.8 Conflict of Interest: Current Clients: Specific Rules Rule 4.3 Dealing with Unrepresented Person Rule 5.5 Unauthorized Practice of Law: Multijurisdictional Practice of Law Rule 8.4 Misconduct At the June 16th hearing, Bar Counsel withdrew its allegation regarding violations of Rule 1.8 and Rule 4.3. Since his suspension Respondent has been actively operating a real estate business known as “Shyrock Realty.” One of the agents who has a brokerage license with the ¹¹⁴ company is Andrew Jackson (Jackson). Respondent and Jackson have no written agreement defining their relationship in Shyrock Realty. At a foreclosure sale on January 4, 2007 Jackson, acting as an individual, was the successful bidder on the Shelby Drive property.

Mark H. Wittstadt, Esquire (Wittstadt) acted as the Substitute Trustee in charge of selling this property. According to Jackson,- after [the] purchase he discovered there was a pending contract for sale on the property with the deceased owner’s son. He decided it would be best to move the property quickly and allow the contract for sale to go to settlement. He felt, as well as did the Respondent, the property was not worth the approximate $232,000 he was obligated to pay under the foreclosure sale.

The price in the pending contract was $170,000. Two documents, an Assignment of Interest in Real Property (Assignment) and Consent Order of Dismissal (Dismissal) were prepared for presentation to the Substitute Trustee. After receiving the fax on the Assignment and Dismissal, Wittstadt contacted the number that appeared on the foreclosure contract. The number belonged to Shyrock Realty.

Wittstadt never spoke to Jackson on this, or any other occasion. Instead Respondent answered and explained to Wittstadt that the property was overpriced and should have been advertised as a shell and not a dwelling. He urged Wittstadt to agree with the proposal since in everyone’s opinion it would benefit all the parties involved. Ultimately, Wittstadt refused to sign any documents on behalf of his client.

He also expressed concern with the legality of the proposal and Shyrock’s role in the transaction. Shyrock told him he was not acting as an attorney or giving advice to any of the parties. He further added he was suspended from the practice of law. Wittstadt sent letters confirming his clients’ position to go through with the sale to both Respondent and Jackson.

Respondent made clear that Jackson would never go through with the purchase. ¹¹⁵ The court ratified the sale, and indeed Jackson did not go to settlement. As promised by Wittstadt, a Petition to Order Resale of Property at Sole Risk and Expense of Defaulting Purchaser at First Foreclosure Sale was filed on April 3, 2007. A Response to this Petition was filed under the signature of Jackson. Respondent at the same time filed on his own behalf a Motion to Intervene by Interested Person.

Respondent’s basis for his Motion was the fact that he had put up the original $3,500 used by Jackson at the foreclosure sale. Moreover, under the drafted Agreement, although he had been reimbursed his original $3,500, he would make an additional $3,250 if the house went to settlement under the pending contract. (Jackson would receive $3,250 as well.) Both he and Jackson felt they would eventually lose a substantial amount of money if the foreclosure sale proceeded. On June 5, 2007, Judge Herman Dawson denied both Jackson’s and Respondent’s Motions and granted Wittstadt’s Motion for Resale of the Property.

Subsequently a Notice of Appeal was filed jointly by Respondent and Jackson as to Judge Dawson’s denial of their respective motions. These appeals were eventually dismissed by the Court of Special Appeals when the requisite briefs were not filed. Judge Woodard made the following conclusions of law: Pursuant to MRPC 16-757(b) Petitioner has the burden to prove violations of the cited rules by clear and convincing evidence. I. Maryland Rules of Professional Conduct 5.5 (a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

To examine if Respondent’s activities constitute the unauthorized practice of law Bar Counsel references the Maryland Code, Business and Professions Article 10:101(h)(2) ¹¹⁶ (ii) preparing an instrument that affects title to real estate (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (ii) giving advice about a case that is or may be filed in a court. Under the terms and conditions of the foreclosure sale, Jackson would have been the owner of the Shelby property subject to the interest of the senior lien holder. The proposed Assignment prepared by Respondent altered that arrangement and “affected title to real estate”. Title and ownership of the property would have gone to the buyer in the pending contract.

Respondent also prepared a Consent Order of Dismissal to reflect this change in title that needed to be filed with the Court. It’s Respondent’s contention “these documents were drafted by him after receiving input from everybody.” He testified, “none of these documents necessitated lawyer intervention.” Respondent claims this type of filing is done often in the real estate business. The Court may have accepted this proposition if there had been evidentiary proof these were standard real estate documents used by the industry. This is not the case.

More troubling the Dismissal contains particularized language to reflect the preceding Agreement. If Respondent had been successful in convincing Wittstadt to go along with the Agreement this Dismissal would have been an official court filing. The second, filing, Jackson’s Response and Supplement to Petition to Order Resale, is 11 (eleven) pages long. Respondent claims he did not act as Jackson’s attorney in drafting the document.

Jackson supports this by stating he relied on Respondent to draft the Response and fill out forms as the “listing agent/broker.” Jackson admitted he never consulted a licensed attorney prior to the Response being drafted or made any inquiry as to what should be filed. The Court does not question the fact that Respondent was intimately involved in this transaction and knew ¹¹⁷ the details of what had transpired. However, the Response and Supplement goes beyond simply being a recitation of the facts. It details what it terms “negligent ” actions by the Plaintiff and asks they be “estopped from trying to claim any expense or interest....” To this day, Jackson doesn’t know what is contained in his Response.

This was not a collaborative effort between Respondent and Jackson, with Respondent stepping in only because Jackson suffers from a visual impairment and is unable to type. The third filing to consider is Respondent’s Motion to Intervene. Respondent argues he filed this pro se to protect his personal interests in the transaction. He understandingly needs to make a living and finds it difficult at times to turn off his legal knowledge in order to pursue his real estate career.

As a citizen, he had every right to attempt to protect his interest through this filing. He stood to earn $3,250 and was concerned Shyrock Realty, as well as Jackson, had made a terrible decision in bidding on the Shelby property. The last filings were an Appeal filed jointly on behalf of both Respondent and Jackson regarding Judge Dawson’s denial of their respective Motions. Jackson reiterates this Appeal was filed by Shyrock as the listing agent/broker and not as an attorney.

It is evident Jackson’s displeasure with the course of events was equal to Respondents. The Court does not doubt they had discussion of how to proceed. While Respondent knew how to formerly note an appeal, it was a mutual decision. It is clear the Respondent engaged in the practice of law when he drafted the Assignment and Consent to Dismissal.

Specifically, these acts constituted a violation of 10.101 (h)(2)(ii)(iii) and (iv). The Response to Resale of Property drafted by Respondent on behalf of Jackson is a violation of 10.101(h)(ii) and 10.101 (h)(2)(iv). After reviewing all evidence, considering argument of counsel and making the above referenced factual findings, the Court finds the Commission has not met its burden by clear and convincing evidence that the filing of the Appeal ¹¹⁸ constituted practicing law as defined in 10.101(h)(2)(ii)(iii), or (iv). Therefore there was no violation of MRPC 5.5(a).

Judge Woodard acknowledged in the section of her opinion entitled “Conclusions of Law” that Shryock prepared several documents filed in the underlying foreclosure action, namely, the “proposed Assignment,” the “Consent Order of Dismissal,” “Jackson’s Response and Supplement to Petition to Order Resale,” the “Motion to Intervene,” and the “Appeal.” In addition, under the “Conclusions of Law” heading, Judge Woodard, specifically, pointed out that “the Response and Supplement goes beyond simply being a recitation of the facts. It details what it terms ‘negligent ’ actions by the Plaintiff and asks they be ‘estopped from trying to claim any expense or interest....’ To this day, Jackson doesn’t know what is contained in his Response.” The hearing judge concluded that, under the circumstances, Shryock engaged in the unauthorized practice of law as defined by Md.Code (1989, 2000 Repl.Vol.), Business Occupations and Professions Article (BOP), § 10-I01(h)(2) 12 and specifically violated MRPC 5.5(a) and 8.4(a). Also Judge Woodard concluded that Shryock’s violation of MRPC 5.5(a) automatically triggered a violation of MRPC 8.4(a). According to Judge Woodard, Shryock’s act of preparing and filing the notice of appeal, however, did not constitute a violation of MRPC 5.5(a).

Likewise, according to the hearing judge, Shryock’s unauthorized practice of law did not warrant a violation of MRPC 8.4(b), (c), and (d). Neither Bar Counsel nor Shryock filed exceptions to the hearing judge’s determination that Shryock violated MRPC ¹¹⁹ 5.5(a). According to Bar Counsel, Shryock’s involvement in preparing and filing the notice of appeal constituted the practice of law; therefore, Judge Woodard erred in deciding the issue to the contrary. In addition, Bar Counsel takes exception to the hearing judge’s conclusion that Shryock did not violate MRPC 8.4(b) and (c).

Bar Counsel makes no argument with regard to 8.4(d), however. This Court has stated “that to determine whether an individual has engaged in the practice of law, the focus of the inquiry should be on whether the activity in question required legal knowledge and skill in order to apply legal principles and precedent.” Attorney Grievance Comm’n v. James, 355 Md. 465, 476 , 735 A.2d 1027, 1033 (1999) (citations and quotations omitted). In relevant part, BOP § 10 — 101(h)(1) provides that “Practice of law” means to engage in any of the following activities: (i) giving legal advice; (ii) representing another person before a unit of the State government or of a political subdivision; or (iii) performing any other service that the Court of Appeals defines as practicing law. Further, § 10 — 101(h)(2) “Practice of law” includes: (ii) preparing an instrument that affects title to real estate; (iii) preparing or helping in the preparation of any form or document that is filed in a court or affects a case that is or may be filed in a court; or (iv) giving advice about a case that is or may be filed in a court.

Specifically, Judge Woodard was persuaded that “Respondent engaged in the practice of law when he drafted the Assignment and Consent to Dismissal [and the] Response to Resale of Property ... on behalf of Jackson.” As to the filing of the Appeal, Judge Woodard was not persuaded that Shryock’s actions constituted the practice of law. ¹²⁰ In our view, Shryock’s involvement in the foreclosure matter before the Circuit Court for Prince George’s County constituted the practice of law. First, when he responded to the Substitute Trustee’s inquiries, Shryock spoke to the trustee on behalf of Jackson, indicating what Jackson would and would not do with respect to purchase of the Shelby Drive property. Any reasonable person observing the activities of Shryock on behalf of Jackson could conclude reasonably that Shryock was acting as Jackon’s attorney. As Bar Counsel pointed out, and the hearing judge confirmed, Shryock prepared the Assignment which was designed to “affect title to real estate” that Jackson had purchased at the foreclosure sale.

Also, Shryock “prepared a Consent Order of Dismissal to reflect [a] change in title”