Attorney Grievance Commission v. Vanderlinde

CATHELL, Judge. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Susan K. Vanderlinde, respondent, for violation of the Maryland Rules of Professional Conduct (MRPC). The petition alleged that the respondent violated the provisions of MRPC 8.4 Misconduct. That rule provides: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in • other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice; (e) state or imply an ability to influence improperly a government agency or official; or ³⁸¹ (f) knowingly assist a judge or judicial officer in conduct that is a violation of applicable rules of judicial conduct or other law.

There is no dispute about the facts of the misconduct. The respondent, over a period of time, while working outside of the profession of law, took (embezzled, stole, misappropriated) $3,880.67 from her employer, King’s Contrivance Community Association (Association). She used the money for her own purposes. The thefts continued even after she had given her employer notice that she would be resigning to accept a legal position with a law firm.

She had replaced the monies by the time of the cessation of her employment, and her thefts initially remained undetected by her employer. At the hearing in the Circuit Court, she admitted that she had violated the provisions of Articles 8.4(a), 8.4(b), and 8.4(c) of the MRPC. Given that respondent has freely acknowledged that on many occasions over a period of time she misappropriated money of the Association for her own use, the details or methods used by her to effect the thefts is not directly at issue, and it is not necessary that we describe those details. The case she presents to this Court in her defense goes exclusively to mitigating factors. 1 Essentially, she asserts that the pressures of her life and the impairment of her mental faculties, including her periods of depression, mitigate against severe sanctions for the offenses she admits committing.

Accordingly, we shall address those concerns, then discuss the history of the cases of this Court where similar problems have been proffered as mitigation in disciplinary matters. We shall then declare and reiterate once again the current position of the Court in respect to the appropriateness of using such matters to mitigate findings or sanctions in cases involving theft, misappropriation or other forms of dishonest ³⁸² conduct. Finally, we shall consider the sanctions to be imposed in this case in light of the positions declared and reiterated by the Court. Mitigation Claims At the hearing in the Circuit Court, Judge James C. Ca-wood, Jr. found: Respondent certainly had difficulties.

Her second marriage failed and her lucrative practice with USF & G was eliminated in the early 90s. She took a series of non-legal jobs, including KCCA, that provided relatively little money. She was having financial difficulties at the time she started taking the funds. Ironically, she is now earning $80,000.00 per year as a lawyer.

The obvious question in this case is mitigation. Respondent presented Dr. Blumberg and petitioner presented Dr. Tellefsen to speak on Respondent’s condition. Both are extremely knowledgeable in this field. Both believe that she knew what she was doing was wrong, and that she did it of her own free will.

Both indicated that Respondent has, at a minimum, a personality disorder and was mildly to moderately depressed. Dr. Blumberg believes she acted as she did because of her mental disorder. We have little doubt that Respondent was depressed because of problems in her personal and professional life, and that her psychological make-up contributed to her problems. However, she took this money in this case because she needed it and because she thought she would not be discovered.

She could control her conduct, and could have made a conscious effort to do otherwise. While we can understand her situation, her misconduct cannot be primarily attributed to any disorder. That does not mean that there is no mitigation in this matter. Although misusing monies 2 is always wrong, and ³⁸³ the Association was probably a vulnerable institution, the amount taken was not huge, and it was restored before the investigation.

We believe remorse is genuine, both because of the extreme financial impact disbarment will have on her 3 and because she has had to face that what she had done is a criminal and unethical act. We have no doubt she would be amenable to any counseling ordered for her, and would conscientiously attend any sessions. Whether that is sufficient to avoid disbarment is entrusted to the judgment of the Court of Appeals. Accordingly, it is this 27th day of December, 2000 DETERMINED that Respondent was ma[d]e more susceptible to such actions by her personality disorder but knew her conduct was wrong and acted of her own free will.

Respondent took several exceptions to the hearing judge’s findings, which we shall now address seriatim, prior to addressing the other areas we have mentioned and ultimately determining the appropriate sanction. Respondent, in her first numbered paragraph, makes two exceptions, first, to the fact that the hearing court did not “make an express finding of fact that Respondent’s depression is a mitigation circumstance which justifies a sanction less than disbarment” and, second, that “Judge Cawood did not make a specific finding that Ms. Vanderlinde suffered from dysthemia.” In respect to the first exception above, it is overruled. It is not the hearing judge’s function to determine ³⁸⁴ whether a finding of mitigation “justifies a sanction less than disbarment.” In respect to the second exception, it is overruled. If it were not overruled, it would make no difference in respect to the violations of the respective rules.

Respondent admitted violating the rules. Likewise, given our discussion of sanctions, infra, and our determinations in that regard, whether the hearing court made a specific finding as to dysthemia, would not affect the sanction the Court imposes. Moreover, as we indicate, infra, a hearing court is not required to mention every evidentiary matter in its finding. For the same reason first described above, we overrule respondent’s exception contained in paragraph two.

The hearing court must make findings in regards to facts that it believes mitigate in respect to the conduct of a respondent in attorney discipline matters, but it is not authorized to make findings that “a mitigating circumstance ... justifies a sanction less than disbarment.” Its function is to bring what it believes to be mitigating circumstances, in respect to the conduct involved, to the attention of this Court, not to offer its views as to whether any such circumstance, or the lack of any such circumstances, justifies any lesser or greater sanction. In paragraph three, respondent excepts to Judge Cawood’s findings “to the extent that Judge Cawood did not take into consideration Respondent’s medical condition, Cavernous Vascular Malformation.” While it is not entirely clear, it' appears that this exception is based on the fact that the disease, Cavernous Vascular Malformation, is not mentioned in Judge Cawood’s findings of fact and conclusions of law. We initially note that there is nothing in the findings, or the memoranda of the parties, that indicates that Judge Cawood did not consider the disease (or condition) in question. There is certainly nothing that we can find that indicates that Judge Cawood rejected the proffer, or the medical opinions of Drs.

Blumberg and Tellefesen that respondent suffers from the condition. Nor is there any indication that Judge Cawood rejected the medical evidence that such a condition, in respon ³⁸⁵ dent’s case, was “ ‘an anvil over her head’ that is an additional stressor for her at all times.” Exceptions to the findings of our hearing judges in attorney discipline matters should be directed to facts that he finds, or facts that he expressly rejects or expressly refuses to consider. The mere failure to mention a particular fact in its findings, normally is not the equivalent of failing to consider it. Our attention has not been directed to where in the record Judge Cawood either rejected the evidence that respondent had the condition, or expressly refused to consider whether she had the condition.

Our hearing courts’ duties are to consider all evidence properly submitted in the discipline process. Absent indications that such evidence is not considered, we presume it was considered along with all the other evidence. We reiterate what we said in Attorney Grievance Commission v. Miller, 301 Md. 592, 606-07 , 483 A.2d 1281, 1289 (1984): The fact that this testimony was not specifically discussed in the court’s finding does not indicate a failure to consider it. Moreover, the court was free to disregard this evidence if it was not credible.

The reception of evidence is to a large degree entrusted to the discretion of the trial judge and will seldom be reversed. [Citations omitted.] Again, we also point out that respondent has admitted that she committed the violations at issue here (and the evidence fully supports that she committed such violations). In any event, in light of our subsequent discussion and determinations, the issue of whether respondent has the condition, would not affect our imposition of sanctions. Accordingly, this exception is overruled. Respondent next excepts to the finding where Judge Cawood determined that she “took the money because she thought she would not be discovered.” First, the evidence does support that she utilized a method of taking the money designed to conceal her conduct, and to conceal the thefts.

In at least some cases, she concealed from her employer that checks were not being deposited. When the payer on the check would call the office to inquire why the check had not ³⁸⁶ cleared, the contact person was the respondent. She would then present the check for payment to conceal that she was holding back checks as a part of her scheme to misappropriate cash. She kept deposit slips in her briefcase, rather than in the files of the Association.

She would only misappropriate the cash items that were to be deposited, because she had sole control over that deposit process. She never stole from the petty cash fund because others had access to it, and missing money might be discovered. In any event, evidence of the stealing of money in a surreptitious manner supports a finding that a thief believes that, or hopes that, he or she will not be discovered. There was no evidence that would support even an inference that respondent believed or hoped she would be discovered.

Additionally, in view of the discussion and determinations that follow, whether respondent believed she would or would not be discovered, is not relevant to the matter of sanctions. As we have indicated, respondent has admitted the violations. This exception is also overruled. We hold that respondent has violated the provisions of MRPC 8.4 sections (a), (b), and (c) discussed supra. 4 We now direct our attention to the matter of sanctions.

Discussion Respondent, in her exceptions and recommendations as to sanctions, discusses at length her mental history. There is no assertion by Bar Counsel that she has misinterpreted that history as supported by the evidence before Judge Cawood. We shall accept, therefore, that it is accurate. We are first told that respondent has a history of depression, beginning from her undergraduate college years, continuing to the present.

During law school, she sought treatment for it after the death of her husband. She sought treatment for it again in 1989 after her second marriage began to deteriorate. From 1989 until 1994, she was treated on almost ³⁸⁷ a weekly basis. During that period, she was diagnosed with a dysthymic disorder, mild to chronic long lasting depression, and a mixed personality disorder.

The depression improved over a period of several months. After she was terminated from a job with the Jackson Foundation in 1996, she again became depressed.. During the ensuing period, she was unable to find work as an attorney and was unsuccessful at selling real estate. Additionally, she was embarrassed by her difficulties.

At the same time, unknown to her, her eldest daughter was suffering from depression. There is evidence in the record that Dr. Blumberg found that during the period when the misconduct at issue occurred, respondent was “under acute stress and suffered from dysthemia.” Dr. Blumberg found that respondent’s condition “significantly impaired her judgment” and “was a root cause of the misconduct.” He described her conduct as being “very much out of character for her.” Dr. Tellefsen did not agree that her mental condition was a root cause of her conduct. Both Drs. Blumberg and Tellefsen testified that she knew that her conduct was wrong and that she could have controlled that conduct.

In her briefs to and oral argument before this Court, respondent likens her situation to situations involving attorneys who have been the subject of disciplinary matters, in which, in the past, we have considered alcohol and drug problems in respect to mitigation of sanctions. 5 In essence, respondent argues that where there is a finding that an attorney’s conduct is, in whole or in part, a result of a mental condition that affects her or his actions, the Court should recognize a new mitigation circumstance that warrants less than a serious sanction. 6 ³⁸⁸ Accordingly, as respondent relies on those prior cases, we shall review, insofar as it is possible to do so, how they have evolved down to the present. As we do, we will keep in mind, especially in cases of dishonesty, intentional misappropriation, fraud, serious criminal offenses, and the like, that our primary function always is to protect the public, not attorneys, and that respondent’s claim that her mental impairment should mitigate sanctions in her favor presents us with the ancillary question, perhaps an unanswerable question, of whether the public would be better protected by a sanction that would permit a mentally impaired, dishonest lawyer to eventually return to practice or a mentally sound, dishonest lawyer to eventually return to practice. ³⁸⁹ In the case at bar, respondent urges us to examine mental impairment unrelated to alcohol abuse in the same context as when we have found mitigating circumstances arising out of alcoholism. Respondent’s contention collaterally presents the issue of whether the public is better protected by mitigating sanctions in the case of alcohol or drug addicted lawyers who violate the rules of conduct, but not mitigating sanctions in the case of misconduct by unabusing and unaddicted attorneys. The Court, in its internal discussions on this matter and in cases we shall describe infra, has already been reassessing the appropriateness of using alcoholism and other substance abuse as factors to be considered in the mitigation of sanctions in cases involving dishonesty, given that the primary role of the process is to protect the public.

We recently determined to strictly scrutinize such factors and to apply them in mitigation only in cases where such problems are extraordinarily compelling. There appears to have evolved over the years a logical inconsistency where lesser sanctions were imposed if an attorney was prone to addiction (or mental impairment for that matter), than if he or she was not, if indeed the primary purpose of sanctions in the first instance is to protect the public. It might be otherwise, i.e., more consistent, if the primary purpose of the process was to punish the attorney. A related question is whether, logically, mitigation should apply to findings relating to conduct, or relating to sanctions to be imposed after a finding of misconduct, or relating to both, or neither.

We shall attempt to resolve at least some of the above questions in our discussions in the present case. In the process, our position, hopefully, will become clearer to members of the bar — that the protection of the public is still the paramount concern. The Modem Evolution Early in the last half century, we noted our special concerns in regards to disciplinary matters involving dishonest conduct not arising out of an attorney’s professional conduct, when we rendered a decision in which we disbarred an attorney for using slugs in parking meters. Fellner v .

Bar Ass’n of Baltimore City, 213 Md. 243 , 131 A.2d 729 (1957). Unlike the ³⁹⁰ present case, there were no claims of mental impairment affecting Fellner’s conduct. We noted: “The Maryland statute ... which contains ... the phrase ‘conduct prejudicial to the administration of justice,’ delegates or confirms to the courts the power and duty to consider particular conduct of one who is an officer of the court, in relation to the privileges and duties of a public calling that specially invites complete trust and confidence. We decline to give to the phrase last quoted a restricted meaning.

In the last analysis the duty rests upon the courts, and the profession as a whole, to uphold the highest standards of professional conduct and to protect the public from imposition by the unfit or unscrupulous practitioner.” 7 ³⁹¹ Id. at 247 , 131 A.2d at 731 (emphasis added), quoting Rheb v. Bar Ass’n of Baltimore, 186 Md. 200, 205 , 46 A.2d 289, 291 (1946). In Rheb, 186 Md. at 205 , 46 A.2d at 291 , we went on to note: As was said by Lord Mansfield long ago: “The question is, whether, after the conduct of this man, it is proper that he should continue a member of a profession which should stand free from all suspicion. * * * It is not by way of punishment; but the court, on such cases, exercise their discretion whether a man whom they have formerly admitted is a proper person to be continued on the roll or not.” In Prince George’s County Bar Association v. Vance, 273 Md. 79 , 327 A.2d 767 (1974), a case where an attorney, rather ³⁹² than directly stealing, forged military documents in order to enable him to utilize a post exchange privilege that netted him $1.00, and where the hearing court had recommended a reprimand, but where we imposed a suspension sanction, we stated: In view of respondent’s concession that he committed the act alleged, it matters little that the charges were not actually prosecuted to their conclusion, and that he has not been convicted of a crime. In other words, in terms of whether the charges of misconduct have been sustained, so as to subject him to a possible sanction, his admission in these proceedings just as effectively establishes such conduct as would a final judgment of conviction, in a criminal case, filed under Rule BV4 f 1.... Nor, however, is this properly a case for a bare reprimand, let alone an outright dismissal of these proceedings ....

However minimal the amount involved may have been, the inescapable fact remains that respondent’s acts were the fruits of misrepresentation; moreover, they were studied, not impulsive.... Though not committed in a professional capacity, the actions of respondent nevertheless reflect directly upon his fitness as an attorney. Id. at 83-85 , 327 A.2d at 769-70 (citations omitted). Attorney Grievance Commission v. Silk, 279 Md. 345 , 369 A.2d 70 (1977), was another of the earlier cases where we held that conduct outside of the practice of law could, nonetheless, constitute misconduct warranting sanctions.

We noted that Silk had not been prosecuted for his misappropriations, that he had consented to the entry of a judgement against him in respect to the stolen funds, that he had paid the judgment, that he was contrite and remorseful, and that he was a state employee who had a very limited private practice. We then addressed the issue of whether a misappropriation of funds that occurs outside of the practice of law (as in the instant case) should be treated more leniently than the misappropriation of funds occurring within a law practice. We said: ³⁹³ “... [W]e see no significant moral distinction between willfully defrauding and cheating for personal gain a client, an individual, or the government. The professional ethical obligations of an attorney, as long as he remains a member of the bar, are not affected by a decision to pursue his livelihood by practicing law, entering] the business world, becoming a public servant, or embarking upon any other endeavor.” In light of what has been said in the cases cited, there appears to be no sound reason for regarding misappropriations committed in a non-professional capacity more leniently than those committed in a professional capacity.

Each involves a breach of trust or of a fiduciary relationship and bear equally on the fitness of a lawyer to practice his profession. Id. at 348 , 369 A.2d at 71 , quoting Maryland State Bar Association v. Agnew, 271 Md. 543, 550 , 318 A.2d 811, 815 (1974). See also Attorney Grievance Commission v. Lazerow, 320 Md. 507 , 578 A.2d 779 (1990). One of the first cases in which the health of a respondent was an issue, albeit collaterally, and then it was a physical condition, was the case of Bar Association of Baltimore City v. Siegel, 275 Md. 521 , 340 A.2d 710 (1975), cited by respondent in the present case.

In that case, we considered the issue of physical condition, to the extent it was a mitigatory factor, as to the offense itself, not as to the appropriate sanction. Siegel was a tax evasion case. In the underlying case, Siegel had pled nolo contendere. In the disciplinary proceeding, Siegel proffered as one of several mitigating factors that his plea in the underlying case had, in part, resulted from his physical condition at the time of that trial.

We noted: Thirdly, Mr. Siegel urges that his nolo contendere plea was largely, if not exclusively, the result of his extremely poor health — two massive heart attacks — which he suffered after he was indicted for tax fraud. We responded to this same contention when it was made under like circumstances ³⁹⁴ in Maryland St. Bar Ass’n v. Callanan, [ 271 Md. 554, 557 , 318 A.2d 809, 810 (1974) ], where we decided that while the “health problem is distressing ... we conclude that since [it] ... developed or occurred subsequent to his criminal activity ... [this coronary malady does] not serve to palliate the evil of his offense.” ... On the other hand, we cannot accept as “compelling extenuating circumstances” those proffers by the respondent which in essence call upon us to assess the integrity of the criminal conviction itself — that prior adjudication is conclusive and thus cannot be attacked in a disciplinary proceeding by invoking this Court to reweigh or to reevaluate the respondent’s guilt or innocence. 8 Id. at 526-27, 340 A.2d at 713 (some alterations in original). We then disbarred Siegel noting: “Since the respondent was convicted of a crime involving moral turpitude, and no sufficient and compelling mitigating circumstances were presented in his 'behalf to justify the imposition of a lesser sanction, the name of [the respondent] will be stricken from the rolls of those authorized to practice law in this State.” Id. at 529 , 340 A.2d at 714 .

The next case in which we addressed health factors in a case involving a mental condition, was Bar Association of Baltimore City v. McCourt, 276 Md. 326 , 347 A.2d 208 (1975), where the mental problem was apparently unrelated to alcohol or drug abuse. The panel, which was the hearing court at that time, found that, when Mr. McCourt had been convicted ³⁹⁵ of failing to file income tax returns, the sentencing court in his criminal trial had considered that, at the time of the offense: Respondent had a neurotic personality disorder, medically classifiable as a “ * * * passive-aggressive personality, passive-dependent type.” ... [Sjuch a “ * * * personality disorder is characterized in the patient by emotional immaturity and dependency, procrastination and avoidance of unpleasant reality, hedonistic pursuits and difficulty in handling hostile, rebellious and other negative emotions.” Notwithstanding these manifestations of the disorder ..., Dr. Rothstein concluded that “ * * * at the time . .. Mr. McCourt did not lack the capacity to appreciate the wrongfulness ... or strictly speaking, to conform his conduct to the requirements of the law.” Id. at 330-31 , 347 A.2d at 210 . The hearing panel, “[i]n light of this and in considering the other factors proffered in mitigation,” recommended a year’s suspension.

Id. at 332 , 347 A.2d at 211 . We accepted that recommendation. Standing alone, the language of that hearing panel does not indicate whether McCourt’s mental problems caused the panel to recommend a lesser sanction; it merely states that it considered “factors proffered in mitigation.” Id. We, however, apparently thought that the panel in McCourt had recommended a lesser sanction due to McCourt’s mental problems, because, subsequently, in Attorney Grievance Commission v. Walman, 280 Md. 453, 466 , 374 A.2d 354, 362 (1977), a case in which the mental condition of Walman was not at issue, we commented: “This case therefore lacks the mitigating circumstances found in [McCouH], in which the testimony of a psychiatrist revealed that the criminal conduct was related to a ‘passive-aggressive’ neurotic personality disorder.” McCourt , and the mention of McCourt in Walman , are the only two early references to mental conditions, standing alone as mitigation, of which we are aware.

An attorney could not account for all of the funds arising out of several real estate settlements in Attorney Grievance Commission v. Cooper, 279 Md. 605 , 369 A.2d 1059 (1977). ³⁹⁶ Cooper is one of the first cases in which the mental condition of an attorney arising out of alcohol or drug addiction, was considered in determining sanctions. However, it is unclear from the opinion whether Cooper was given a more lenient, or more serious, sanction because of those allegedly mitigatory factors. He was placed on the inactive list because he was then presently incompetent to practice. As required at the time, a three-judge panel made a recommendation for an indefinite suspension.

In its recommendation the three-judge panel noted: In recommending a sanction in this case we have considered the condition of the respondent’s health during the period of the misconduct.... We have no doubt that the physical infirmities which are described in the medical records ..., have been materially contributed to by his chronic alcoholism which substantially pre-dates the misconduct in question.... His appearance and demeanor as a witness before us confirms the disintegration of his mind and body which has followed this alcohol abuse. Because we believe his misconduct was principally the result of his inability to render, ... “adequate legal service by reason of mental or physical illness or infirmity, or addiction to or dependence upon an intoxicant or drug”, and because we are convinced that this incompetency continues at this time we recommend ... that the respondent be .placed on an inactive status as provided for in Maryland Rule BV11 a 2.

Id. at 612 , 369 A.2d at 1062 (citations omitted). It is not possible from the language of the three-judge panel’s recommendation to determine whether they recommended a harsher sanction, or a more lenient sanction, because of the mental conditions caused by Cooper’s drinking and drug problems. This Court merely accepted the recommendation of the panel without substantive comment. We next considered the effect of mental and physical health problems caused, at least in part, by alcohol abuse, in the ³⁹⁷ context of attorney disciplinary matters, in a case with some similarity to the facts in the case at bar.

Attorney Grievance Commission v. Flynn, 283 Md. 41 , 387 A.2d 775 (1978). The process then in place still required hearings before a trial court level judicial panel that made recommendations to this Court. The panel had found that Flynn had committed several instances of misconduct, including using client’s funds “ ‘for [a] purpose other than the purpose for which such funds were entrusted to him.’ ” Id. at 44 , 387 A.2d at 777 (alteration in original). We there stated: That this Court takes a very dim view of members of the bar who at the expense of their clients elect to feather their nests should by now be plain to all.

Thus, absent compelling extenuating circumstances, present and associated with the illegal or improper acts at the time committed, when an attorney engages in conduct which entails dishonesty, as we determine is true in the present case, that attorney will be disbarred as a matter of course to protect the public from being victimized by his further dishonesty. In this case, after reviewing the record with meticulous care, we have concluded that there did exist serious physical and mental illness at the time of the commission of the dishonest and otherwise improper acts, which, while not excusing them, was to a substantial degree causally connected and is sufficiently exculpatory that it warrants our not imposing the ultimate sanction of disbarment; instead we will order a sanction that is a smidgeon less severe— suspension from the practice of law in this State for an indefinite time period.... Id. at 45 , 387 A.2d at 777-78 (citations omitted). We then gave our reasons for departing from the otherwise appropriate sanction of disbarment.

For six years after being admitted to the bar, the respondent had been a highly competent and successful attorney, held in high esteem by fellow members of the bar and members of the bench. Beginning in 1971, and over the next five or six years, his competence gradually deteriorated, and “he was transformed from a highly motivated, orderly, and competent attorney into a morose, ³⁹⁸ alcoholic individual, despondent to the point of being suicidal, who neglected his law practice....” Id. at 46 , 387 A.2d at 778 . During the same time span, he was divorced, had problems with his teenage son, and spent most of his time getting drunk. At the time of his misconduct, he was closing his law practice in order to take up a less demanding line of work.

We imposed an indefinite suspension, rather than a disbarment, with some cautionary language in reference to the difficulty that the respondent might have in attempting to get his suspension lifted. Thus, m Flynn , as we did in Cooper , we imposed less than the sanction of disbarment in cases where the attorneys had been experiencing mental and/or physical problems resulting, at least in part, from alcohol and drug abuse. See also Attorney Grievance Commission v. Burka, 292 Md. 221 , 438 A.2d 514 (1981). In the period between the early cases of Flynn and Cooper , and the early 1980s, the Bar Association began to stress rehabilitation of alcohol abusing attorneys and to eventually put in place procedures to aid in that rehabilitation.

That fact, among others, apparently led to the beginning of our stressing of rehabilitation in respect to attorneys experiencing alcohol or drug related problems affecting their practices, even sometimes when the resulting problems involved the misappropriation of money. The initial cases in that respect were Attorney Grievance Commission v. Bailey, 286 Md. 630 , 408 A.2d 1330 (1979), and Attorney Grievance Commission v. Finlayson, 293 Md. 156 , 442 A.2d 565 (1982). In Bailey , no dishonest or fraudulent intent was found. We noted that had there been clear evidence that Bailey had intended “to steal or consciously misappropriate the funds in. question, we would disbar.” Bailey, 286 Md. at 636 , 408 A.2d at 1333 .

Accordingly, Bailey is not directly comparable to cases in which an intent to steal or misappropriate is found and sanctions less onerous than disbarment imposed because of alcoholism. Bailey , however, is the first case in which we noted the existence of Bar Association pressure to consider rehabilitation efforts in mitigation of conduct and/or sanctions. We said: ³⁹⁹ The case here undoubtedly is one of the types of situations which the Maryland State Bar Association had in mind when it suggested to us in October of this year that consideration be given to a lawyer counseling committee concept .... This concept is still under study.

Thus, it is not available in this particular proceeding. Bailey, 286 Md. at 637 , 408 A.2d at 1334 . We then suspended Bailey, but provided that he could seek to have the suspension lifted after thirty days, provided he met certain conditions, stating as to those conditions: “It is for this reason we impose the condition which we do. It is as close as we are able to come ... to the type of counseling which the ...

Association earlier recommended.” Id. at 638 , 408 A.2d at 1335 . In Finlayson , we noted in the first sentence of our opinion: “We shall attempt ... to use procedures directed at rehabilitation ... which are similar to those we tried, albeit unsuccessfully, in [Bailey ].” Finlayson, 293 Md. at 156 , 442 A.2d at 566 . Finlayson , also, is not directly on point with the instant case, and similar cases involving dishonesty or misappropriation. All of the charges in Finlayson involved allegations of neglect.

As in Bailey , we suspended Finlayson, with the right to seek reinstatement immediately upon the satisfaction of conditions, including rehabilitation measures which, since Bailey , had become available. Neither Bailey nor Finlayson 9 are directly on point, in that, although both involved problems created by alcoholism, neither were cases in which intentional dishonesty, stealing, or misappropriations were found to have occurred. It is interesting to note that the reliance on post-finding alcoholism rehabilitation as a considered mitigating factor began in cases involv ⁴⁰⁰ ing lesser violations than dishonesty, intentional stealing, or misappropriation. After the Bailey and Finlayson cases, which, as we mentioned, supra, involved lesser offenses, we were concerned with an attorney’s misappropriation of funds, and the mitigating factor of alcoholism in Attorney Grievance Commission v. Dunphy, 297 Md. 377 , 467 A.2d 177 (1983).

There, Dunphy, who had been convicted of fraudulent misappropriation by a fiduciary, relied on Flynn, supra, in arguing that the appropriate sanction for his misconduct should be an indefinite suspension, instead of a disbarment. The facts of that case indicated that after a period of successful practice, Dunphy began to drink heavily and to neglect his practice. Several years later, Dunphy’s son committed suicide and there was psychiatric evidence that the effect of his son’s suicide was further adversely affecting the manner in which Dunphy practiced. Dunphy apparently blamed himself for his son’s death, was compulsive in respect to visiting his son’s grave, and suffered severe depression that then caused him to further abuse himself with alcohol.

There was also testimony that he had organic brain damage. The hearing judge ultimately found that during the time of the misappropriations, or prior to the time of the misappropriations, Dunphy had become incompetent, at least partly because of his abuse of alcohol. The hearing judge further found that the brain damage he had suffered was a substantial cause of the commission of the acts of misconduct. Additionally, the hearing court noted: “He has eschewed any use of the drug alcohol since November 5,1981.

He participated in intensive psychotherapy sessions with Dr. Ryan from May of 1981 until approximately one year ago. He is maintaining himself in daily sessions of Alcoholic Anonymous and he has become a sponsor for other members of Alcoholic Anonymous. He assists in alcohol rehabilitation programs in Lorton Penitentiary and lawyer counseling programs in Maryland.” ⁴⁰¹ Dunphy, 297 Md. at 384, 467 A.2d at 180 . After reviewing the hearing court’s findings, we stated: [W]e conclude, as in Flynn , that there did exist in this case serious physical and mental illness at the time of the commission of Dunphy’s criminal acts which, while not excusing them, were to a substantial degree causally connected and sufficiently exculpatory as to warrant our not imposing the ultimate sanction of disbarment....

In so disposing of this ease, there is, of course, no softening of our revulsion for misappropriation of funds entrusted to an attorney. Id. at 385, 467 A.2d at 181 (footnote omitted) (citations omitted). 10 Dunphy then, is the third case, Flynn and Cooper being the previous two, in which we imposed a sanction of less than a disbarment, when the misconduct involved the stealing or misappropriation of funds of another and where alcoholism or drug addiction was considered a primary cause of the conduct. Dunphy was one of the first cases in which we began to recognize rehabilitation in alcohol abuse related cases. Dunphy was followed the next day by another misappropriation of funds case, Attorney Grievance Commission v. Willemain 297 Md. 386, 387 , 466 A.2d 1271, 1271 (1983).

We announced at the onset that “As we did in [Finlayson], among other cases, we shall attempt in this attorney disciplinary proceeding to use procedures directed at rehabilitation of the attorney.” Id. Our hearing court in Willemain found: “... During this period of time, the Respondent was handling an extensive case load and it is apparent that he lost control of his law office management. As another mitigating factor, the Respondent was on tranquilizers and drinking heavily.

He was having personal and emotional ⁴⁰² problems with his marriage, and he did seek marriage counseling in 1980. Further, he was having physical problems with his back during 1979, and at times was unable to physically sit' up. He had the herniated disc removed in 1981. “There is no evidence that the Respondent intentionally attempted to milk his clients but it appears that he lost control. He was unable to face the problem and help to solve it during the period of time in question.” Id. at 391-92 , 466 A.2d at 1273 .

The hearing court also found that Willemain had sought treatment from private psychiatrists, as well as from a psychiatric counselor for the Lawyer’s Counseling Service of the Maryland Bar Association. He had been attending meetings of Alcoholic Anonymous. He was also being counseled by Mr. Richard B. Vincent, the Director of the Bar Association Service. We noted once again that we had been looking “at the shortcomings of attorneys in a somewhat different light” when the misconduct resulted in substantial part from physical and mental problems, “particularly where alcoholism was involved.” Id. at 395 , 466 A.2d at 1275 .

We indefinitely suspended Willemain, with the right to reapply immediately. Citing Willemain and Cooper as authority, we again imposed a lesser sanction than disbarment in Attorney Grievance Commission v. Aler, 301 Md. 389 , 483 A.2d 56 (1984). The facts relating to the impact of alcohol on Aler’s conduct were similar to the facts in Willemain . We repeated our position that we viewed misconduct related to alcohol abuse “in a somewhat different light,” but also repeated our concurrent position that “the mishandling of a client’s funds will not be lightly regarded by this Court.” Id. at 398 , 483 A.2d at 61.

We then noted: Therefore, even given his apparent recovery from the ravages of alcohol, there must be some protection of the public from his mismanagement of his client’s funds.... In the past, we have held when there has been a misappropriation of funds that we will permit reinstatement of the ⁴⁰³ attorney only upon a showing of rehabilitation so complete that the misconduct will not be repeated. More recently, we have delineated certain conditions which, if met by the attorney being sanctioned, avoid the imposition of indefinite suspension. Attorney Griev.

Comm’n v. Truette, 299 Md. 435 , 474 A.2d 211 (1984); and Attorney Griev. Comm’n v. Finlayson, 293 Md. 156 , 442 A.2d 565 (1982) (Alcohol abuse led to neglect of client’s matters; reinstatement from indefinite suspension would be permitted upon a showing that certain conditions imposed by the Court were met). Id. at 398, 483 A.2d at 61 (some citations omitted). We then indefinitely suspended Aler, with the right to reapply after thirty days, subject to the respondent meeting certain conditions.

One of these conditions was the requirement that he be monitored. Thus, in the Aler case, we began the practice of specifying a condition for the requirement of a monitor 11 that must be met before the attorney, whose sanctioned misconduct was caused by alcohol abuse, could be reinstated. Interestingly, the beginning of the differing treatment of attorneys, depending upon their abuse of alcohol, is starkly contrasted by the different treatment afforded in Truette and in another case, Attorney Grievance Commission v. Woodward, 299 Md. 429 , 474 A.2d 208 (1984), decided on the same day as Truette . At the time of the disciplinary proceedings, both Woodward and Truette were part time assistant State’s Attorneys, one in Baltimore County and the other in Carroll County.

Truette had apparently misappropriated funds belonging to clients. Woodward had failed to file income tax returns and to pay State income taxes. Truette, at least in part, blamed alcohol abuse for his misconduct.