Attorney Grievance Commission v. Stillwell

BELL, C.J. Garland Howe Stillwell, the respondent, by order of the District of Columbia Court of Appeals, dated August 27, 2009, was suspended from the practice of law in the District of Columbia. The Attorney Grievance Commission, the petitioner, pursuant to Maryland Rule 16 — 773(b), 1 and acting through Bar Counsel, filed, in this Court, a petition for disciplinary or remedial action, based on the misconduct for which the respondent was suspended in the District of Columbia, against the respondent. Citing the opinion of the District of Columbia ⁷¹ Court of Appeals, noting particularly its recitation of the Rules the respondent admitted violating, and alleging that the professional misconduct that those violations constituted and for which the respondent was disciplined was also professional misconduct in Maryland, it requested this Court, inter alia, to issue a Show Cause Order and to take appropriate disciplinary action. This Court issued the requested Show Cause Order pursuant to Maryland Rule 16-773(c) 2 and, after both parties filed their responses to the Show Cause Order, heard oral argument.

The underlying basis of these proceedings is the respondent’s admission that he violated Rules 8.4(c) 3 and 1.7(b)(1) 4 ⁷² of the District of Columbia Rules of Professional Conduct (DCRPC). The misconduct underlying those Rules violations consisted of “... inaccurately represent[ing] his status at the law firm where he was employed, ma[king] a false representation on behalf of a friend, improperly charging] personal expenses to others, working] outside the law firm against the law firm’s written policies, and asserting] a position on behalf of clients that was adverse to a position taken by a client of the firm without first obtaining informed consent of all parties.” The respondent’s voluntary admissions were made upon advice of counsel and in connection with a petition for negotiated discipline and were reflected in that portion of the petition setting forth the parties’ stipulation of facts and charges and supported by the respondent’s affidavit. The petition for negotiated discipline stated the “agreed upon sanction,” a 60 day suspension with no fitness requirement, and justification for that sanction in the form of a review of the relevant precedents with respect to the range of sanctions the District of Columbia Court of Appeals has imposed for similar professional misconduct. Also pertinent to the appropriateness of the sanction, the petition set forth the parties’ agreement as to aggravating as well as factors mitigating: “An aggravating factor is the prejudice to Respondent’s law firm, which absorbed some of Respondent’s personal expenses under false pretenses, and did not seek to recover the full amount in reimbursement from Respondent.

The dishonest nature of Respondent’s conduct is also an aggravating factor. “In mitigation, Respondent has acknowledged that he engaged in the misconduct described above, has taken full responsibility for his actions, reimbursed the law firm for the amount it sought, has undergone professional counseling to prevent such ethical lapses from recurring, and has no history of discipline.” ⁷³ The petition for negotiated discipline was referred to a hearing committee of the Board of Professional Conduct, which, after considering the petition, including the statement of relevant precedent in support of the agreed upon sanction submitted by Bar Counsel, the supporting affidavit filed by the respondent, and “the representations made during the limited hearing by Respondent and Bar Counsel,” made findings and issued its report recommending approval of the petition for negotiated discipline. In deciding to recommend approval of the negotiated discipline, the hearing committee considered, as it was required to do, whether the admissions of the respondent were knowing and voluntary, whether the facts, as related in the petition or shown during a limited hearing support the admissions and the agreed upon sanction and whether the agreed upon sanction is appropriate, justified by the facts and circumstances. As to the latter factor, characterized by the hearing committee as the most complicated of the three, it wrote: “Upon consideration of the entire record in this matter, including the circumstances in aggravation and mitigation and the relevant precedent, we conclude that the agreed upon negotiated discipline is justified. As described in the relevant precedent section of the Petition, the range of sanctions for Respondent’s multiple violations is a nonsuspensory sanction to disbarment....

In this instance, Respondent has stated convincing factors in mitigation of his offense and has no history of discipline. He is charged with only two offenses during a relatively short period of time. The Hearing Committee is satisfied the Respondent is sincere in his regret and has taken steps to remedy his violations and prevent recurrences.” The District of Columbia Court of Appeals accepted the recommendation. In doing so, it commented: “The respondent has accepted responsibility for his actions, repaid all monies owed and undertaken action to prevent future lapses.” As indicated, this Court issued a Show Cause Order, to which both the petitioner and the respondent filed a response.

Not unexpectedly, the respondent answers that he “has no ⁷⁴ grounds, as set forth in Maryland Rule 16-773(e), why corresponding discipline should not be imposed by this Court.” Proffering that the imposition of reciprocal discipline in this case “would be consistent with this Court’s cases that hold, and emphasize, that “[t]he primary purpose of attorney discipline is the protection of the public, not the punishment of the attorney,” he therefore urges the Court to impose corresponding discipline. Moreover, citing Attorney Griev. Comm’n v. Whitehead, 390 Md. 663, 683 , 890 A.2d 751, 763 (2006) and Attorney Griev. Comm’n v. Weiss, 389 Md. 531, 544 , 886 A.2d 606, 613 (2005), the respondent submits, “Maryland deviates from sanctions imposed by sister jurisdictions when the Maryland cases clearly demonstrate that the misconduct warrants a substantially different disposition.” He argues that this is not a case in which a substantially different sanction is warranted, as clearly demonstrated by our cases; therefore, we should adhere to well-settled and well reasoned principles of comity and follow the lead of the District of Columbia Court of Appeals.

As predictably, the petitioner, in its answer, urges, and makes the case for, a substantially different sanction than the one imposed by the District of Columbia. Citing the rule in this State, that, when considering reciprocal discipline cases, the Court “is inclined, but not required, to impose the same sanction as that imposed by the state in which the misconduct occurred, the petitioner notes that this Court is required to assess for itself the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission”, see Weiss, 389 Md. at 546 , 886 A.2d at 615 ; Attorney Griev. Comm’n v. Scroggs, 387 Md. 238, 254 , 874 A.2d 985, 995 (2005), see also Whitehead, 390 Md. at 672 , 890 A.2d at 756 (applying the same test when the sanction imposed by this Court is less than that imposed by the sister jurisdiction), and that, while the Court “usually [does] not deviate from the original jurisdiction’s sanction, [it] will do so when the conduct involved is of such nature that it would not be tolerated from any member of the Bar in this State if the conduct occurred here,” Weiss, 389 Md. at 552 , 886 A.2d at 618 . Consistent with this observa ⁷⁵ tion, the petitioner argues that the misconduct of the respondent in this case warrants more than a 60 day suspension.

To make its case, in this regard, the petitioner emphasizes the stipulations of fact relevant to the Rule 8.4(c) violation: “1. For some period of time while he was an associate attorney at the law firm of Pillsbury Winthrop Shaw Pittman LLP (hereafter ‘the Firm’), Respondent’s biography with the African American Real Estate Professionals Association (AAREP) identified him as ‘senior counsel’ at the Firm. Respondent did not immediately correct that inaccurate representation of his status after the Firm informed him in January 2008 that he needed to do so.... “2. In August 2006, ‘Respondent used Firm equipment to prepare and send a false employment verification’ on behalf of a personal friend to a car dealer.

In that verification, Respondent, knowing that the individual (identified as ‘TB’) had only worked for the Firm as a receptionist for approximately two weeks in June 2006, falsely asserted ‘that she was still employed at the Firm and had been since August 2005.’... “3. In 2007, ‘Respondent used the Form’s word processing staff to prepare a resume for TB falsely indicating that TB had been employed with the Firm from August 2005 until July 2007.’ On the resume prepared for TB, Respondent falsely listed himself as ‘Senior counsel’ to the Firm.... “4. ‘While working a the Firm, Respondent charged a number of personal expenses to the law firm, to pro bono accounts, and to a client for whom Respondent did no legal work.’ This conduct included reassigning ‘as much as $ 5,000 worth of cell phone and text message charges to clients, professional activities, and business development, even though some of the charges were personal in nature, ... . ’ “5. Contrary to the Firm’s written ‘Outside Work” policy, Respondent launched a personal real estate venture known as TCR in 2007 without obtaining the Firm’s permission to pursue such an outside business interest. ‘At times, Re ⁷⁶ spondent used the Firm’s resources, including computers and the word processing department, to draft TCR client agreements and TCR payment receipts.’... “6. Through TCR, Respondent provided services to a married couple (identified as the ‘LPs’) with respect to a real estate purchase offer made by Greenbaum & Rose Associates, a real estate company that was a client of the Firm.

Although the Firm did not represent Greenbaum & Rose in its negotiations with the LPs, Respondent did not conduct a conflict of interest check within the Firm, and he did not disclose to either the LPs or Greenbaum & Rose the potential conflict requiring informed consent of all affected parties----” From these stipulated facts, the petitioner argues: “In the present matter, Respondent engaged in several distinct acts of dishonesty, fraud, deceit or misrepresentation, none of which can be interpreted as anything other than intentionally dishonest. Respondent knew he was an associate at the Shaw Pittman firm, yet he held himself out as ‘senior counsel’ on a professional biography and on the resume he prepared for the individual identified as TB. He knew that TB only worked at the firm for a two week period, yet he participated in generating two separate documents (the August 2006 employment verification and a resume prepared in 2007) that significantly misrepresented the duration of her employment. Respondent knew that various personal expenses he chose to allocate as professional or business expenses should not be charged to the firm or to client accounts, yet he did so anyway for his personal benefit.

Finally, although it is not clearly stated in the stipulated facts that Respondent knowingly and intentionally violated the firm’s ‘Outside Work’ policy by establishing TCR as a personal venture, his misuse of firm resources to prepare documents in furtherance of a business created for his personal gain reflects added dishonesty.” Thus, the petitioner believes that the above described actions demonstrate that the respondent’s conduct, being at the least intentionally dishonest and involving misrepresentation, merits ⁷⁷ a more substantial sanction, and preferably, the ultimate sanction of disbarment. For this proposition, the petitioner relies on Attorney Griev. Comm’n v. Garcia, 410 Md. 507, 521 , 979 A.2d 146, 154 (2009) and Attorney Griev. Comm’n v. Vanderlinde, 364 Md. 376, 418 , 773 A.2d 463, 488 (2001).

In Attorney Griev. Comm’n v. Vanderlinde, 364 Md. 376, 418 , 773 A.2d 463, 488 (2001), we stated the rule: “Upon reflection as a Court, in disciplinary matters, we will not in the future attempt to distinguish between degrees of intentional dishonesty based upon convictions, testimonials or other factors. Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Honesty and dishonesty are, or are not, present in an attorney’s character. “Disbarment ordinarily should be the sanction for intentional dishonest conduct.

With our opinion today, we impress upon the members of the bar that the Court does not consider Hess or the pre-Kenney cases to be authority for an argument for leniency in attorney disciplinary matters involving intentionally dishonest conduct.” Based on that rule, in Garcia, 410 Md. at 521 , 979 A.2d at 154 , we opined “[w]hen an attorney’s conduct involves intentional dishonesty, fraud, deceit or misrepresentation, we do not discuss ‘degrees’ of dishonesty, but generally order disbarment, absent compelling extenuating circumstances.” Alternatively, relying on Attorney Griev. Comm’n v. Sweitzer, 395 Md. 586, 606 , 911 A.2d 440, 452 (2006), the petitioner asks this Court to suspend the respondent indefinitely from the practice of law. That the respondent has also admitted engaging in conduct that constituted a conflict of interest is further reason, the petitioner submits, for not reciprocating the District of Columbia sanction of a sixty day suspension. ⁷⁸ The misconduct and the Rules violations having been admitted by the respondent and, indeed, having been finally adjudicated in a disciplinary hearing, thereby being rendered conclusive proof that the respondent engaged in misconduct, Maryland Rule 16 — 773(g); 5 Attorney Griev. Comm’n v. Scroggs, 387 Md. 238, 249 , 874 A.2d 985, 992 (2005); Attorney Griev.

Comm’n of Maryland v. Ayres-Fountain, 379 Md. 44, 56-57 , 838 A.2d 1238, 1245 (2003); Attorney Griev. Comm’n v. Cafferty, 376 Md. 700, 703-704 , 831 A.2d 1042, 1045-46 (2003); Attorney Griev. Comm’n v. Gittens, 346 Md. 316, 325 , 697 A.2d 83, 87-88 (1997); Attorney Griev. Comm’n v. Willcher, 340 Md. 217, 221-222 , 665 A.2d 1059, 1061 (1995); Attorney Griev.

Comm’n v. Sparrow, 314 Md. 421, 425 , 550 A.2d 1150, 1152 (1988); see also Attorney Griev. Comm’n v. Moore, 301 Md. 169 , 482 A.2d 497 (1984), the only issue left to be decided is the appropriate sanction. This is, as indicated, a reciprocal discipline case. In such cases, although, by its terms, Rule 16-773(g) limits challenges to the original adjudication in reciprocal discipline cases to “notice and opportunity to be heard” or “infirmity of proof,” see Attorney Griev.

Comm’n v. Roberson, 373 Md. 328, 354 , 818 A.2d 1059, 1075 (2003), either of the parties to the proceedings may show “why corresponding discipline or inactive status should not be imposed.” Maryland Rule 16-773(c). That is, we pointed out in Ayres-Fountain, 379 Md. at 56-57 , 838 A.2d at 1245 , the purpose of the requirement on the Court to issue a show cause order. Indeed, the Rule prescribes the ⁷⁹ exceptional circumstances that will allow for avoidance of reciprocal discipline. Section 16-773(e) provides: “Exceptional Circumstances.

Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that: “(1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; “(2) there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that the Court, consistent "with its duty, cannot accept as final the determination of misconduct; “(3) the imposition of corresponding discipline would result in grave injustice; “(4) the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State; or “(5) the reason for inactive status no longer exists.” This Court’s treatment of the imposition of sanction aspect of reciprocal discipline cases is well-settled. We reiterated it in Weiss : “It is a well established principle in this State that this Court is ‘inclined, but not required, to impose the same sanction as that imposed by the state in which the misconduct occurred. We are required to assess for ourselves the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission.’ Scroggs, 387 Md. at 254 , 874 A.2d at 995 (citations omitted); see also Attorney Griev. Comm’n v. Steinberg, 385 Md. 696 , 704 n. 9, 870 A.2d 603 , 608 n. 9 (2005) (stating that “ ‘[w]e are prone, but not required, to impose the same sanction’ ”) (citations omitted); Ayres-Fountain, 379 Md. at 57 , 838 A.2d at 1246 ; Cafferty, 376 Md. at 727 , 831 A,2d at 1058 (stating that ‘[w]e tend to, but are not required to, impose the same sanction’) (citations omitted); Attorney Griev.

Comm’n v. Roberson, 373 Md. 328, 355 , 818 A.2d 1059, 1076 (2003); Attorney Griev. Comm’n v. McCoy, 369 Md. 226, 236 , 798 A.2d 1132, 1137-38 (2002) (stating that ‘[t]his Court has often imposed ⁸⁰ sanctions, in reciprocal discipline cases, of facially equal severity to those imposed by a sister state. We have pointed out, however, that there is no requirement that this should be done’) (citations omitted); Attorney Griev. Comm’n v. Ruffin, 369 Md. 238, 253 , 798 A.2d 1139, 1148 (2002); Attorney Griev.

Comm’n v. Dechowitz, 358 Md. 184, 192 , 747 A.2d 657, 661 (2000); Attorney Griev. Comm’n v. Richardson, 350 Md. 354, 371 , 712 A.2d 525, 533 (1998); Attorney Griev. Comm’n v. Sabghir, 350 Md. 67, 83 , 710 A.2d 926, 934 (1998); Attorney Griev. Comm’n v. Gittens, 346 Md. 316, 325 , 697 A.2d 83, 88 (1997); Attorney Griev.

Comm’n v. Willcher, 340 Md. 217, 221-22 , 665 A.2d 1059, 1061 (1995); Attorney Griev. Comm’n v. Saul, 337 Md. 258, 267 , 653 A.2d 430, 434 (1995). The fact that we are ‘inclined,’ ‘prone,’ or ‘tend to’ and ‘often’ impose the same sanction is not determinative in this case. The explicit reluctance of the Court to adopt a blanket rule of reciprocity provides that we must look at each case individually and decide whether to deviate from the original jurisdiction’s sanction, and in this case we do so.” 389 Md. at 546-47 , 886 A.2d at 615 . 6 Having stated the general rule, we attempted to give guidance as to when we should or would withhold deference to the sanctioning court’s judgment.

Our approach was to survey our eases and, from them, try to distill a workable standard or rule. We started with our statement of the rule in Attorney Griev. Comm’n v. Parsons, 310 Md. 132, 142 , 527 A.2d 325, 330 (1987): “When the Court considers the appropriate sanction in a case of reciprocal discipline, we look not only to the sanction ⁸¹ 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,” which, we said, “is in agreement with our duty to protect the public, gives appropriate deference to our sister jurisdictions and ensures that every member of the Maryland Bar is