Attorney Grievance Commission v. Sweitzer

⁵⁸⁹ BATTAGLIA, J. The Attorney Grievance Commission of Maryland (“Petitioner”), acting through Bar Counsel and pursuant to Maryland Rule l6-75l(a), 1 filed a petition for disciplinary or remedial action against Respondent, Barry E. Sweitzer, on December 30, 2005, in which there were two complaints included, one by Bar Counsel, and the other by a client, James L. Sebold. With respect to the Complaint of James L. Sebold, it was alleged that Respondent violated Maryland Rule of Professional Conduct 1.3 (Diligence) 2 by failing to act with reasonable diligence and promptness in recording a deed conveying land to Mr. Sebold, which Respondent prepared, in the Land Records of Garrett County. With respect to the complaint of Bar Counsel, it was alleged that Respondent acted deceitfully when he, under the penalties of perjury, presented a Gift Certification Form that contained a forged signature of his former wife to the Motor Vehicle Administration (“MVA”), misrepresented the nature of the transaction by presenting the Gift Certification Form for a vehicle purchased at auction, and misrepresented that he had his former wife’s authority to sign the Gift Certification Form on her behalf, in violation of Rule 8.4(b), (c), and (d) (Misconduct). 3 ⁵⁹⁰ In accordance with Maryland Rules 16-752(a) 4 and 16-757(c), 5 we referred the petition to Judge Donald E. Beachley of the Circuit Court for Washington County for an evidentiary hearing and to make findings of fact and conclusions of law. Judge Beachley held a hearing on May 9, 2006, and on June 1, 2006, issued Findings of Fact and Conclusions of Law, in which he found by clear and convincing evidence that Respondent had violated Maryland Rules of Professional Conduct 1.3 with respect to Mr. Sebold’s complaint and 8.4(c) and (d) with respect to Bar Counsel’s complaint: Findings of Fact and Conclusions of Law “The Court finds that, except as otherwise indicated, the following facts have been established by convincing evidence: “1.

Respondent graduated from West Virginia University Law School and was admitted to the Maryland Bar on December 16,1999. “2. Respondent is currently a member in good standing of the Maryland Bar. I. Findings of Fact Concerning Complaint of Bar Counsel (Re: Transfer of TahoelPresentation of Gift Certification Form to MV A) “3. Respondent and Cristine Kepple were married on August 17, 1991.

They separated in March, 2001 and were ⁵⁹¹ divorced by a Judgment of Absolute Divorce dated April 21, 2004. “4. Pursuant to an Order issued by the Circuit Court for Garrett County, Maryland dated July 14, 2004, certain items of personal property were to be sold at auction. One of the items to be sold at auction was a 1997 Chevrolet Tahoe titled in the joint names of Respondent and Ms. Kepple. “5. Respondent’s father, acting as the agent of the Respondent, purchased the 1997 Chevrolet Tahoe at the public auction on September 23, 2004 for $2,700.00.

Respondent had intended to personally bid on the Tahoe, but he was arrested when he arrived for the auction. “6. Ms. Kepple signed the back of the Maryland Certificate of Title for the Tahoe (Petitioner’s Exhibit 5) and delivered it to the auctioneer prior to sale. “7. Due to her concern that Respondent may attempt to register the Tahoe without transferring title to his sole name, Ms. Kepple wrote to the Motor Vehicle Administration (“MVA”) to seek the agency’s assistance in ensuring that Respondent transfer title to the vehicle prior to its registration. A copy of Ms. Kepple’s letter to the MVA dated September 27, 2004 was admitted as Petitioner’s Exhibit 4. “8.

On November 17, 2004, Respondent went to the MVA office in Cumberland for the purpose of transferring title to the Tahoe to his sole name. He was assisted at the MVA by customer service agent Eva Gibbs. Respondent presented Ms. Gibbs with the Maryland Certificate of Title for the Tahoe and corresponding Gift Certification form. The Certificate of Title was properly signed by Respondent and Ms. Kepple. “9.

In accordance with standard procedure, Ms. Gibbs entered the relevant information into the computer and discovered a ‘flag’ pertaining to this vehicle. The ‘flag’ denoted ‘Investigative Services’ on the computer and was apparently generated as a result of Ms. Kepple’s letter dated September 27, 2004. ⁵⁹² “10. Uncertain of the significance of the ‘flag,’ Ms. Gibbs took both documents to consult with her supervisor. The supervisor directed Ms. Gibbs to retain the Certificate of Title and Gift Certification form and specifically not give the documents to Respondent. “11.

Ms. Gibbs returned to the customer service counter, at which time she advised Respondent there was a problem with the transaction. Respondent asked Ms. Gibbs, “What’s the problem?,’ to which Ms. Gibbs responded, T don’t know.’ “12. Respondent then asked Ms. Gibbs if he could look at the paperwork (Certificate of Title and Gift Certification form). Ms. Gibbs, contrary to her supervisor’s instructions, gave the two documents to Respondent, at which time he tore off the Gift Certification form which had been stapled to the Certificate of Title and left the MVA office.

Respondent did not take the Certificate of Title, which was left on the counter. “13. The Gift Certification form presented to Ms. Gibbs was not produced at the hearing. However, Ms. Gibbs testified that a signature that purported to be Respondent’s appeared on the ‘Signature of Giver’ line and a signature purporting to be Cristine Kepple or Cristine Kepple Sweitzer appeared on the ‘Signature of Co-Giver’ line. When questioned by the Court concerning her recollection of the signatures, Ms. Gibbs said she was ‘pretty sure’ that the signature for Ms. Kepple was not in a representative capacity- “14.

Respondent testified that he signed his name on the ‘Signature of Giver’ line and that he signed ‘Barry Sweitzer for C.K. Sweitzer’ or ‘B.E. Sweitzer for C.K. Sweitzer’ on the ‘Signature of Co-Giver’ line. Respondent testified that he had the authority to sign the Gift Certification form on behalf of his wife based on statements made by Ms. Kepple’s divorce attorney. “15. As set forth in the Conclusions of Law, infra, the Court cannot find by clear and convincing evidence that the Gift Certification form presented by Respondent to Ms. ⁵⁹³ Gibbs contained a signature purporting to be Ms. Kepple’s signature. “16. Respondent concedes he had no direct, express authority to sign the Gift Certification form on behalf of Ms. Kepple.

Ms. Kepple confirmed that she did not authorize Respondent to sign the Gift Certification form on her behalf and she had no intention of making a gift to Respondent. “17. The divorce proceeding between Respondent and Ms. Kepple was not amicable. According to Respondent, Ms. Kepple would use every possible means to cause him difficulty, including the filing of criminal charges. “18. Immediately above the ‘Signature of Giver’ lines on the Gift Certification form is the following statement: “I/we certify under penalty of perjury that all statements made herein are true and correct to the best of my/our knowledge, information, and belief.

I/we further certify that no money or other valuable considerations is involved in this transfer. This transfer is not being made contrary to Maryland Vehicle Laws. “19. In the absence of a legally effective Gift Certification form, the MVA would charge a 5% tax on the sales price of $2,700.00, or $135.00, and the vehicle would have to be inspected. There is no sales tax or inspection requirement for vehicles transferred pursuant to a validly executed Gift Certification form.

Conclusions of Law “Petitioner initially contends that Respondent violated Rules 8.4(b), (c), and (d) by presenting a document with a forged signature to the MVA customer service representative. However, after assessing Ms. Gibbs’ testimony on this issue, this Court cannot conclude by clear and convincing evidence that the Gift Certification form presented to Ms. Gibbs contained a signature purporting to be Ms. Kepple’s. Hence, the Respondent did not violate Rules 8.4(b), (c), or (d) in this respect. ⁵⁹⁴ “However, Respondent violated Rules 8.4(c) and (d) by attempting to transfer title using the Gift Certification form. The Tahoe was purchased at a public auction and therefore was clearly not a gift to Respondent from his former spouse.

Although the financial incentive to use to Gift Certification form was minimal, Respondent was nevertheless attempting to avoid paying the 5% sales tax and having the vehicle inspected. The Court finds by clear and convincing evidence that Respondent’s presentation of the Gift Certification form was an attempt to deceive the MVA by misrepresenting the true nature of the transfer of the Tahoe. Such action constitutes a violation of Rules 8.4(c) and (d). “Similarly, the Court finds by clear and convincing evidence that Respondent did not have authority to sign the Gift Certification form on behalf of Ms. Kepple. Respondent’s testimony that Ms. Kepple’s divorce attorney gave him the authority to sign the Gift Certification form is simply not credible.

Respondent and Mr. Kepple were involved in a rancorous divorce. It is improbable under these circumstances that Respondent was authorized to sign any document on behalf of Ms. Kepple in the Fall of 2004. Ms. Kepple, a member of the Maryland Bar, did not authorize Respondent to treat the transfer of the Tahoe as a gift. Respondent knew that the transfer was not as a result of a gift and the reasonable inference is that he did not attempt to obtain Ms. Kepple’s signature or express authority to sign on her behalf because Respondent knew Ms. Kepple would not comply.

This conduct, established by clear and convincing evidence, is also a violation of Rules 8.4(c) and (d). See generally, Attorney Grievance Comm’n v. Childress, 360 Md. 373, 384 , 758 A.2d 117 (2000) (professional misconduct is not limited to conduct within the course of the attorney-client relationship).

II

Findings of Fact Concerning Complaint of James Sebold “20. Sometime toward the latter part of 2002, James Se-bold requested Respondent to prepare a deed transferring certain real property to Ms. Sebold from his mother. ⁵⁹⁵ “21. Respondent obtained a copy of the existing deed, prepared the new deed, and met with Mr. Sebold and his mother. The deed was signed by Mr. Sebold’s mother and by Respondent, as the person who prepared the document. “22.

Respondent attached the executed deed to a property intake sheet and presented it to the Garrett County Assessments Office (‘Assessments Office’) in accordance with his usual practice. Respondent testified that the normal practice was for a deed to be first presented to the Assessments Office, which would then be delivered by the Assessments Office to the Land Records Office across the hall for recordation. “23. After recordation, Respondent would customarily receive the deed in his mail slot at the Court House. However, at the time of this transaction, Respondent no longer had a mail slot as he was in the process of closing his law practice.

He testified that he asked the Clerk in Land Records to mail the recorded deed to Mr. Sebold. “24. Respondent concedes that he did not follow up to ensure that the deed had been recorded in the Land Records of Garrett County. “25. The deed was never recorded in the Land Records of Garrett County. “26. Respondent did not maintain a copy of the deed. “27.

The fee for service related to the Sebold transaction was $100.00 plus $25.00 recording costs. “28. The sum of $125.00 representing the legal fee and recording cost has been provided to Respondent’s counsel to reimburse Mr. Sebold. Conclusions of Law “Respondent violated Rule 1.3 which provides that ‘[a] lawyer shall act with reasonable diligence and promptness in representing a client.’ In transactions involving the transfer of title to real property, the most important legal act is recordation of the deed in the land records of the county where the property is situation. Md.Code.

Ann., ⁵⁹⁶ Real Prop. § 3-101(a) (2006). Respondent’s obligation to Mr. Sebold was to verify that the deed has been recorded in the Land Records for Garrett County, Maryland. Cfi Attorney Grievance Comm’n v. Cassidy, 362 Md. 689 , 766 A.2d 632 (2001). The evidence is clear and convincing that Respondent failed to act with reasonable diligence in concluding this very simple legal transaction. 6 DISCUSSION The hearing judge found violations of Maryland Rules of Professional Conduct 1.3, and 8.4(c) and (d).

Neither Petitioner nor Respondent took exception to the hearing judge’s findings of fact or conclusions of law. Therefore, we accept the hearing court’s findings of fact, as established, for the purpose of determining the appropriate sanction. Maryland Rule 16-759(b)(2)(A). Attorney Grievance Comm’n v. Logan, 390 Md. 313, 319 , 888 A.2d 359, 363 (2005).

Respondent conceded, and we find, that the hearing court’s findings of fact support the conclusions of law. The sole issue we confront is the sanction to be imposed. SANCTION In the case sub judice, Respondent was found to have violated Maryland Rules of Professional Conduct 1.3 and 8.4(c) and (d). With respect to the complaint of Mr. Sebold, Respondent violated Maryland Rule of Professional Conduct 1.3, the ethical duty requiring him to act with reasonable diligence and promptness in representing Mr. Sebold, when Respondent failed to conclude what Judge Beachley called a “very simple legal transaction” by verifying that Mr. Sebold’s deed had been properly recorded in the Garrett County Land Records ⁵⁹⁷ Office.

Respondent asserts that a reprimand would be the appropriate sanction for this violation. In a situation such as this, without any additional ethical violations, a sanction such as a public reprimand may be appropriate. See, e.g., Attorney Grievance Comm’n v. Lee, 390 Md. 517, 526-27 , 890 A.2d 273, 278 (2006) (reprimanding attorney for first offense of failing to act with reasonable diligence and promptness in responding to and meeting with a client). See also Attorney Grievance Comm’n v. Ward, 394 Md. 1, 39 , 904 A.2d 477, 499-500 (2006) (stating that a reprimand would be too lenient a sanction for multiple rules violations).

When imposing sanctions in cases involving more than one complaint and multiple rules violations, however, we consider the infractions together to impose a single sanction based upon the facts and circumstances of the particular case. With respect to Bar Counsel’s complaint, Respondent recommends that we impose a three month suspension for the violations of Maryland Rule of Professional Conduct 8.4(c) and (d). He argues that a three month suspension is appropriate because no client was injured and because the misconduct was an isolated incident. Additionally, Respondent asserts that he has complied with all of Bar Counsel’s requests and at the time of the violations, he was an inexperienced attorney suffering emotional distress as a result of his recent divorce.

Petitioner recommends that Respondent be disbarred. Petitioner contends that the most important factors to consider when imposing disciplinary sanctions are the nature of the misconduct and the lawyer’s motives. Petitioner argues that Respondent violated Maryland Rule of Professional Conduct 8.4(c) by making two misrepresentations — presenting the Gift Certification Form to the MVA for a vehicle he purchased at auction and misrepresenting that he had his former wife’s authority to sign the Gift Certification Form on her behalf — in an effort to avoid payment of a vehicle sales tax and inspection fee. 7 ⁵⁹⁸ In this case we shall impose the sanction of an indefinite suspension, encompassing the Rule 1.3 violation and the Rule 8.4(c) and (d) violations. E.g.

Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 577 , 846 A.2d 353, 377 (2004) (imposing single sanction of disbarment for multiple complaints against attorney involving multiple rules violations). See also Attorney Grievance Comm’n v. Angst, 369 Md. 404, 420-21 , 800 A.2d 747, 757 (2002). Among the highest duties of this Court is the protection of the legal profession, as we must “uphold the highest standards of professional conduct ... to protect the public from imposition by the unfit or unscrupulous practitioner.” Attorney Grievance Comm’n v. Guberman, 392 Md. 131, 136 , 896 A.2d 337, 340 (2006), quoting Rheb v. Bar Ass’n of Baltimore City, 186 Md. 200, 205 , 46 A.2d 289, 291 (1946). See Attorney Grievance Comm’n v. Sheridan, 357 Md. 1, 27 , 741 A.2d 1143, 1157 (1999) (“Because an attorney’s character must remain beyond reproach this Court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from bringing its image into disrepute.”), quoting Attorney Grievance Comm’n v. Deutsch, 294 Md. 353, 368-69 , 450 A.2d 1265, 1273 (1982) (emphasis in original).

When imposing sanctions, we have enunciated that, “ ‘[t]he public is protected when sanctions are imposed that are commensurate with the nature and gravity of the violations and the intent with which they were committed.’ ” Attorney Grievance Comm’n v. Gore, 380 Md. 455, 472 , 845 A.2d 1204, 1213 (2004). The appropriate sanction for violations of the Maryland Rules of Professional Conduct depends upon the facts and circumstances of each case. Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 484 , 671 A.2d 463, 480 (1996). Judge Raker, writing for this Court in Glenn , has suggested that the American Bar Association Standards for Imposing Lawyer Sanctions (“Standards”) provides the appropriate framework ⁵⁹⁹ for the determination of a sanction and can be accessed through asking: (1) What is the nature of the ethical duty violated?

(2)