Attorney Grievance Commission v. Sweitzer

Barbera, C.J. Petitioner, the Attorney Grievance Commission of Maryland, acting through Bar Counsel, filed in this Court on May 21, 2014, a Petition for Disciplinary or Remedial Action (the “Petition”) against Respondent, Philip James Sweitzer. Bar Counsel charged Respondent with engaging in “professional misconduct” within the scope of Maryland Rule 16-701(i) 1 leading to a violation of Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 8.4(b), (c), and (d). 2 Those charges ³¹ arise from Respondent’s felony theft conviction in the Circuit Court for Howard County. Felony theft is a “serious crime” within the meaning of Maryland Rule 16-701(k)(l), 3 enabling Bar Counsel to file the Petition pursuant to Maryland Rules 16-751(a)(2) 4 and 16-771(b). 5 On June 19, 2014, this Court issued an order instructing Respondent to show cause why he should not be suspended immediately from the practice of law in Maryland until further order of this Court. After receipt of the parties’ respective responses to the Show Cause Order, pursuant to Maryland Rule 16-771 (c), 6 this Court issued an order on September 22, ³² 2014, suspending Respondent from the practice of law in the State of Maryland, effective immediately, pending further order of the Court.

Respondent appealed his conviction to the Court of Special Appeals and on May 26, 2015, in an unreported opinion, the intermediate appellate court affirmed Respondent’s conviction. Sweitzer v. State, No. 582, slip op. at 23, 2015 WL 5920319 (Md. Ct. Spec. App. May 26, 2015). On September 21, 2015, this Court denied Respondent’s petition for a writ of certiorari.

Sweitzer v. State, 445 Md. 7 , 122 A.3d 976 (2015). On January 29, 2016, Bar Counsel filed a Motion for Further Proceedings in this matter. On February 2, 2016, this Court transmitted the matter to the Circuit Court for Washington County and designated the Honorable Daniel P. Dwyer (the “hearing judge”) to conduct an evidentiary hearing and make findings of fact and conclusions of law. 7 The hearing judge held a hearing on June 29, 2016. Respondent did not attend the hearing.

Thereafter, the hearing judge issued written findings of fact and conclusions of law. Notwithstanding his absence from the hearing, Respondent has filed exceptions. Those exceptions, rather than challenging the hearing judge’s findings of fact or conclusions of law, generally attack the underlying criminal conviction, the Court of Special Appeals’ opinion affirming the conviction, and this Court’s denial of Respondent’s certiorari petition. Respondent also filed a “Second Motion to Terminate Petition for Disciplinary Action, and/or to Disqualify Bar Counsel Glenn Grossman, ³³ Esq., Deputy Bar Counsel Raymond Hein, Esq., and Assistant Bar Counsel Marianne J. Lee, Esq.,” which, in an order filed on September 14, 2016, this Court deferred pending oral argument.

We heard argument on November 3, 2016. Respondent did not appear at that hearing. Bar Counsel recommended disbarment as the appropriate sanction. We issued a per curiam order on November 4, 2016, disbarring Respondent immediately from the practice of law in the State of Maryland.

We now explain the reasons for that order, including our decision to overrule Respondent’s exceptions and our conclusion that Respondent violated MLRPC 8.4(b), (c), and (d). On December 2, 2016, Respondent filed a “Motion to Reconsider and Vacate Disbarment Order, to Reinstate and to Reset Oral Argument.” For the reasons stated in this opinion, we hereby deny that motion. We hereby also deny Respondent’s “Second Motion to Terminate Petition for Disciplinary Action, and/or to Disqualify Bar Counsel Glenn Grossman, Esq., Deputy Bar Counsel Raymond Hein, Esq., and Assistant Bar Counsel Marianne J. Lee, Esq,” i-H The Hearing Judge’s Findings of Fact The hearing judge made the following findings of fact by clear and convincing evidence. See Md. Rule 16-757(b). 8 Respondent was admitted to the Maryland Bar on December 15, ³⁴ 2005.

On February 13, 2013, Respondent was indicted on the theft of property of Dr. Allen Tsai of at least $10,000 but less than $100,000, which, pursuant to Md. Code Ann., Crim. Law § 7-104 (2009, 2012 Repl. Vol.), is a felony. 9 The Honorable Dennis Sweeney, Senior Judge, presided over the bench trial in the Circuit Court for Howard County, and, on October 7, 2013, found Respondent guilty of felony theft. The trial court relied on the following facts in reaching that decision, as later recounted in the Court of Special Appeals’ opinion affirming the judgment of the trial court.

In early 2011, Dr. Tsai hired Respondent to assist him in his claim for disability benefits from his insurer, Penn Mutual (the “Penn Mutual Case”). Sweitzer , slip op. at 2. Respondent agreed to the representation for a flat fee of $4,000, which Dr. Tsai paid. Id.

Dr. Tsai’s claim was premised on the medical opinion of Dr. Gerwin, who eventually reversed his medical opinion and concluded that Dr. Tsai was not totally disabled. Id. As a result, Respondent urged Dr. Tsai to settle the Penn Mutual case and pursue a possible claim against Dr. Gerwin. Id.

Meanwhile, Nu Image, a film company, filed a copyright claim against Dr. Tsai, alleging that he illegally downloaded movies from the internet (the “Nu Image Case”). Id. Respondent also represented Dr. Tsai in that matter for a flat fee of $1,000, which Dr. Tsai paid. Id. at 2-3.

When Respondent informed Dr. Tsai that Nu Image indicated its willingness to settle the case for $2,000, Dr. Tsai sent Respondent $2,000 to settle the case. Id. at 3. Respondent did not settle the case, nor did he return the $2,000 to Dr. Tsai. Id. at 7.

Dr. Tsai employed another attorney to settle the Nu Image Case but was unable to recover his $2,000 from Respondent. Id. In early 2012, Respondent informed Dr. Tsai that Penn Mutual would settle its case for $40,000-$50,000. Id. at 3.

Eventually, Dr. Tsai agreed to settle for $54,000, and the ³⁵ settlement agreement was executed on May 21, 2012. Id. Per the terms of the settlement agreement, Penn Mutual sent Respondent the settlement funds. Id.

The disbursement sheet Respondent sent to Dr. Tsai indicated that Dr. Tsai was to receive $54,881.93. Id. Over the following months, Dr. Tsai made “repeated attempts to get his settlement proceeds” from the Penn Mutual Case. Id.

During that time, Respondent exhibited a “collection of excuses and [a] litany of impediments that allegedly prevented him from delivering Dr. Tsai’s funds.” Id. Respondent never paid Dr. Tsai the $54,881.93 in settlement proceeds from the Penn Mutual Case. Id. at 4-7. On April 28, 2014, the trial court, having found Respondent guilty of felony theft of property of at least $10,000 but less than $100,000, sentenced him to five years of incarceration, with all but one year suspended, to be followed by two years of supervised probation.

The court ordered Respondent to pay restitution to Dr. Tsai in the amount of $57,000. The hearing judge, relying upon Maryland Rule 16-771(g), found that Respondent’s conviction of felony theft, affirmed by the Court of Special Appeals, supplied “conclusive evidence of his guilt of that crime.” Maryland Rule 16-771(g) provides: Conclusive effect of final conviction of crime. In any proceeding under this Chapter, a final judgment of any court of record convicting an attorney of a crime, whether the conviction resulted from a plea of guilty, nolo contende-re, or a verdict after trial, is conclusive evidence of the guilt of the attorney of that crime. As used in this Rule, “final judgment” means a judgment as to which all rights to direct appellate review have been exhausted.

The intrpduction of the judgment does not preclude the Commission or Bar Counsel from introducing additional evidence or the attorney from introducing evidence or otherwise showing cause why no discipline should be imposed.[ 10 ] ³⁶ The Hearing Judge’s Conclusions of Law The hearing judge concluded that Respondent’s theft conviction, coupled with the facts pertinent to that crime as discussed in the Court of Special Appeals’ opinion, established Respondent’s violations of MLRPC 8.4(b), (c), and (d). The hearing judge concluded that Respondent violated MLRPC 8.4(b) because “it is beyond question” that the act of theft constitutes a criminal act reflecting on Respondent’s honesty, trustworthiness, or fitness to practice law. The hearing judge quoted a portion of the Court of Special Appeals’ rejection of Respondent’s claim that the conviction was not supported by legally sufficient evidence: “[A] rational finder of fact could find, beyond a reasonable doubt, that Sweitzer willfully or knowingly exerted unauthorized control over [his client] Dr. Tsai’s property (specifically, the Penn Mutual settlement and the funds to settle with Nu Image) and that he intended to deprive Dr. Tsai of that property.” Sweitzer , slip op. at 10-11. The hearing judge concluded that Respondent violated MLRPC 8.4(c) because, as the Court of Special Appeals explained, there was “copious evidence that Sweitzer was lying to his client, stalling for time, and exploiting his client’s friendship and sympathy,” and Respondent “intended to deprive his client of the property.” Sweitzer , slip op. at 12.

Finally, the hearing judge concluded that Respondent violated MLRPC 8.4(d) because a criminal conviction stemming from theft of client funds negatively impacts the image of the legal profession. The hearing judge noted in his conclusion that, despite the opportunity for Respondent to introduce additional evidence in his disciplinary proceeding, Respondent “failed to avail himself of that opportunity by failing to appear at the June 29, 2016 ³⁷ hearing.” 11 Accordingly, no evidence has been presented that would mitigate Respondent’s misconduct. II Standard of Review “In attorney discipline proceedings, this Court has original and complete jurisdiction.” Attorney Grievance Comm’n v. Page, 430 Md. 602, 626 , 62 A.3d 163 (2013). If no exceptions to the hearing judge’s findings of fact are filed, this Court may treat the facts as conclusively established.

Attorney Grievance Comm’n v. Kwarteng, 411 Md. 652, 659-60 , 984 A.2d 865 (2009). If exceptions to the hearing judge’s findings of fact are filed, we will not overrule the findings unless we are persuaded that they are clearly erroneous. Attorney Grievance Comm’n v. Mahone, 435 Md. 84, 104 , 76 A.3d 1198 (2013). This Court conducts a de novo review of the hearing judge’s conclusions of law.

Attorney Grievance Comm’n v. Garcia, 410 Md. 507, 515 , 979 A.2d 146 (2009). Accordingly, this Court must determine, based on a “clear and convincing” standard of proof, whether sufficient evidence existed in the record to support the hearing judge’s conclusions of law. Attorney Grievance Comm’n v. Tanko, 427 Md. 15, 27 , 45 A.3d 281 (2012). hH 1—i Respondent s Exceptions Bar Counsel did not file any exceptions to the hearing judge’s findings of fact and conclusions of law. Respondent has filed numerous exceptions, but does not specifically refer to any of the hearing judge’s findings of fact or conclusions of law.

Instead, Respondent argues generally that the hearing judge’s findings of fact and conclusions of law were flawed ³⁸ from the outset because Judge Sweeney, who presided at the criminal trial, lacked subject matter jurisdiction over the instant case, rendering the conviction “void ab initio.” Respondent argues that the criminal trial was “nothing but an elaborate hoax: an unauthorized attorney disciplinary proceeding, couched forcibly and impermissibly within the context of a criminal trial, this Court having never conferred subject matter jurisdiction on the trial court to make any foray whatsoever into fact-finding in attorney-client matters.” Respondent further argues that the appellate process “appears to have been rigged,” evidently viewing this Court’s issuance of the Order of Suspension in the present disciplinary proceeding as “temporally-coordinated” with the Court of Special Appeals’ opinion affirming the underlying conviction. Respondent also argues that this Court “abusively denied” the petition for writ of certiorari. In a similar vein, Respondent charges the hearing judge in this disciplinary matter with having “failed to even address the subject matter jurisdictional issue.” Respondent asserts that there was an impermissible “blending” of his criminal trial and attorney grievance matter. Respondent’s arguments on this point include conflict of interest allegations.

According to Respondent, the entire criminal trial constituted a conspiracy between the prosecution and the judiciary. Respondent also asserts that, because his motions to vacate both the criminal conviction and Bar Counsel’s petition for disciplinary action went largely unopposed by the State and Bar Counsel, this Court should have granted the motions in Respondent’s favor. Finally, Respondent asserts that he “earned the fee in question in the underlying attorney/client controversy under the prevailing ABA standard, and neither the State nor Bar Counsel has proven otherwise, even under a clear and convincing evidentiary standard.” We shall treat Respondent’s arguments as “exceptions” and overrule each of them. Contrary to Respondent’s various arguments, there was no impermissible “blending” of the criminal and disciplinary matters.

Maryland Rule 16-771(b) provides, in pertinent part: “Upon receiving and verifying ³⁹ information from any source that an attorney has been convicted of a serious crime, Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals.” Maryland Rule 16-751(a)(2) further provides: “If authorized by Rule 16-771(b) ..., Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals without prior approval of the Commission.” The record shows that Bar Counsel complied with those provisions. Upon receipt of proof of the conviction, and following a show cause order, this Court may suspend the attorney pending a final disposition of the disciplinary or remedial action. Md. Rule 16-771(c). This Court’s issuance of the Order of Suspension on September 22, 2014, complied with those procedures. 12 We overrule as well Respondent’s exception that the hearing judge’s findings of fact and conclusions of law were flawed at the outset because the hearing judge’s factual findings and legal conclusions rested on facts that underlay the verdict of Judge Sweeney, who had found Respondent guilty of theft of funds belonging to Dr. Tsai.

In Respondent’s view, Judge Sweeney did not have subject matter jurisdiction over Respondent’s attorney/client relationship with Dr. Tsai. Respondent does not seem to be arguing that Judge Sweeney did not possess the subject matter jurisdiction to hear and decide the charge of felony theft, for such jurisdiction no doubt resides in the judges of Maryland’s circuit courts. See Md. Code Ann., Cts. & Jud. Proc. § 1-501 (1998, 2013 Repl.

VoL). Rather, Respondent seems to argue that Judge Sweeney had no jurisdiction to decide facts that are within the purview of the attorney grievance process and, once Judge Sweeney wrongly decided the existence of such facts, the hearing judge could not rely upon the conviction as conclusive evidence of ⁴⁰ Respondent’s having violated one or more rules of professional conduct. That argument is unfounded. Facts that give rise to an attorney’s having been adjudicated