Attorney Grievance v. Maiden

Attorney Grievance Commission of Maryland v. Amber Lisa Maiden, Misc. Docket AG No. 72, September Term, 2020. ATTORNEY DISCIPLINE — SANCTIONS — INDEFINITE SUSPENSION The Court of Appeals indefinitely suspended an attorney who (1) created, failed to recognize, and failed to act to resolve a conflict of interest; and (2) sent an antisemitic and highly offensive 20-page letter to a client and then later knowingly and intentionally misrepresented to Bar Counsel that she had sent the letter by mistake. Such conduct violated Maryland Attorneys’ Rules of Professional Conduct 1.1 (Competence), 1.7 (Conflict of Interest — General Rule), 1.8 (Conflict of Interest; Current Clients; Specific Rules), 1.16 (Declining or Terminating Representation), 8.1 (Bar Admission and Disciplinary Matters), and 8.4 (Misconduct).

Circuit Court for Montgomery County Case No. 484826-V Argued: May 10, 2022 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 72 September Term, 2020 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. AMBER LISA MAIDEN ______________________________________ Fader, C.J., Watts, Hotten, Booth, Biran, Gould, Eaves, JJ. ______________________________________ Opinion by Fader, C.J. ______________________________________ Filed: July 28, 2022 Pursuant to the Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2023-01-17 16:20-05:00 Gregory Hilton, Clerk The Attorney Grievance Commission of Maryland (the “Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action against Amber Lisa Maiden, arising out of her representation of Brian Riese. The Commission alleged that Ms. Maiden committed several violations of the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”) resulting from her: (1) creation of, failure to recognize, and failure to terminate representation due to a conflict of interest that arose when she made herself a co-party to Mr. Riese’s administrative appeal of the dismissal of a discrimination complaint and asserted a 50% share of any punitive damages award; (2) sending Mr. Riese a 20-page letter containing numerous antisemitic, personally insulting, profane, and otherwise inappropriate comments; and (3) false claim to Bar Counsel that she had sent the letter by mistake. The Commission asserted that Ms. Maiden’s conduct violated MARPC 19-301.1 (Competence) (Rule 1.1), 19-301.7 (Conflict of Interest — General Rule) (Rule 1.7), 19-301.8 (Conflict of Interest; Current Clients; Specific Rules) (Rule 1.8), 19-301.16 (Declining or Terminating Representation) (Rule 1.16), 19-308.1 (Bar Admission and Disciplinary Matters) (Rule 8.1), and 19-308.4 (Misconduct) (Rule 8.4).1 A hearing judge found by clear and convincing evidence that Ms. Maiden had committed all the violations alleged by the Commission.

The hearing judge also found the existence of several aggravating and two mitigating factors. Neither party filed exceptions. The Commission recommended a sanction of indefinite suspension, which we imposed by per curiam order following oral argument, which Ms. Maiden did not attend. Attorney 1 Throughout this opinion, we will use shortened references to the rules as identified in this paragraph in the parentheticals following each rule.

Grievance Comm’n v. Maiden, 478 Md. 527, 528 (2022). We now explain the reasons for our order. BACKGROUND This Court may accept a hearing judge’s findings as established when no exceptions are filed. See Attorney Grievance Comm’n v. Silbiger, 478 Md. 607, 617 , Misc.

Docket AG No. 57, Sept. Term, 2020, (filed May 26, 2022); see also Md. Rule 19-740(b)(2)(A). Here, because no exceptions were filed, we treat as established the following facts, which the hearing judge found to have been proved by clear and convincing evidence. Ms. Maiden’s Representation of Brian Riese Mr. Riese, a former security technical specialist with the United States Department of State, filed an Equal Opportunity complaint against the State Department after he was removed from his post in 2018. Mr. Riese contended that he had been discriminated against on the basis of his gender.

The State Department dismissed his complaint. In September 2019, Mr. Riese retained Ms. Maiden to represent him in filing an appeal of the dismissal to the Equal Employment Opportunity Commission (“EEOC”). The retainer agreement provided for a flat fee of $1,500 for the written appeal and contemplated a need “to renegotiate a new fee schedule” if Ms. Maiden were to provide “any additional legal services or representation.” After entering her appearance, Ms. Maiden made multiple requests to the State Department for records in connection with her preparation of Mr. Riese’s appeal. She claimed that the State Department failed to provide the requested documentation or provided it “in pieces” or “in a very jumbled kind of way.” 2 Three days before the deadline for filing Mr. Riese’s appeal, Ms. Maiden and Mr. Riese engaged in an email discussion that addressed, among other things, Mr. Riese’s damages claim.

Ms. Maiden told Mr. Riese that the EEOC generally had limited authority to award damages, but that 42 U.S.C. § 1981 operated as a “loophole.” Ms. Maiden stated that she had “never quite understood Section 1981 as it simply does not apply to most EEO cases,” but informed Mr. Riese that it did apply to his case. She asked him to “read up on Section 1981, and brainstorm on how to get your damages out of it.” The following day, Mr. Riese responded that § 1981 appeared to him to be limited to claims of racial discrimination and asked whether Ms. Maiden, who is Black, could “join the cases.” Ms. Maiden agreed, opining that they could argue that “in this case, [Ms. Maiden’s] rights are tied to [Mr. Riese’s] rights,” “both o[f their] constitutional rights ha[d] been violated” by the State Department’s responses to her records requests, and “the door ha[d] been opened to a [§] 1981 claim” based on Ms. Maiden’s race. She advised that such a § 1981 claim was “the only way to get at punitive [damages],” and concluded that they should “go for it” and request ten million dollars in damages. Ms. Maiden later suggested raising the damages demand to $20 million.

Contemporaneously, as part of a series of text messages, Ms. Maiden sent Mr. Riese the following: I hope it goes without saying (and I do this with all my punitive damage clients) I expect you to split any punitive damages with me 50/50 -usually I ask for 35%-but you literally would not be able to make this argument without me, so that’s why I’m asking for 50% of the punitive. 3 Included later in the same chain of texts is the following message from Mr. Riese: “I’m onboard. It makes me giggle just to say: Twenty Million Dollars.” It is unclear whether Mr. Riese’s statement about being “onboard” referred only to the size of the damages request or to Ms. Maiden’s proposed split of any punitive damages award. On October 29, 2019, Ms. Maiden filed the brief. Two days later, Ms. Maiden forwarded Mr. Riese a new retainer agreement, which reflected what she believed to be their new financial arrangement for her continued representation.

Mr. Riese did not sign the new agreement. The Breakdown of the Relationship On November 6, 2019, during their only in-person meeting, Ms. Maiden and Mr. Riese discussed Ms. Maiden’s claim to a 50% share of any punitive damages award. At the hearing in this matter, the parties presented divergent recollections of the meeting. Mr. Riese recalled that the parties “came to a tentative agreement” concerning Ms. Maiden’s share of any punitive damages award, which he identified as “significantly less than [] 50%.” He believed that Ms. Maiden was going to continue representing him, left her with case-related documents, and awaited a new retainer agreement.

Ms. Maiden, by contrast, recalled a “very traumatic” meeting in which Mr. Riese “did all of the talking,” was “very aggressive,” and “meant to be threatening and intimidating.” She testified that the parties never came to any agreement concerning her representation. The hearing judge credited Ms. Maiden’s account of the meeting, found that Mr. Riese’s behavior was “aggressive, threatening and intimidating,” and found that Ms. Maiden “felt demeaned and insulted as a result of Mr. Riese’s comments.” 4 On December 2, Ms. Maiden sent Mr. Riese an email telling him that she would not represent him without a contract and that she would send him a new one, which he could “choose to sign . . . or not,” “a[]long with an explanation as to why [she had] articulated the terms of this contract as such.” Mr. Riese responded that he would be reluctant to sign a new contract that deviated from what he understood was their verbal agreement. Ms. Maiden replied that she was amenable to renegotiating “the terms of the initial agreement,” but felt she was “being ambushed or otherwise disrespected.” She accused Mr. Riese of mistaking her “for someone far less intelligent,” which she said was “almost always the case when dealing with white Americans.” Later that afternoon, Mr. Riese wrote back that he took “great offense” to Ms. Maiden’s accusation that he would hold her “in less regard based on [her] race,” and asked her to return case-related documents if she wished to end their attorney-client relationship. Ms. Maiden responded about nine hours later with an email to which she attached an encrypted, 20-page letter addressed to Mr. Riese.

She included the password needed to access the letter in the body of the email. The letter purports to be an effort to explain to Mr. Riese how and why his conduct at their in-person meeting and refusal to renegotiate the financial terms of their relationship had offended Ms. Maiden. It does so, however, using language that is antisemitic, personally insulting, profane, and otherwise inappropriate, including the following excerpts, among others: conflict- as we say in the diversity/inclusion circles - is good. Or at least it’s to be expected.

It’s a part of life, and it simply has to be managed. So, let’s get to managing this conflict. It’s about to get really real...I gotta break into my African-American dialect (lots of cursing) so you will understand- I am 100% that bitch... and not to be fucked with. 5 ... I’m your attorney.

And that is actually a very sacred relationship. Almost like marriage [. . .] because our interests are linked. Our financial interests, our representational interests, we both want to win and we both want the money... ... And, I can tell, from my first in person conversation with you, that the best, in your mind, is lots of money.

But me? I’m different. So, we have a values conflict already. (We have to manage it.) I can tell you right now, money does not move me, the way it moves you.

I would say you are obsessed with it, and that’s very unhealthy. At the risk of offending you, I am going to say, it’s probably because you’re Jewish (I think) and that seems to be a part of your culture, (with the men anyway, the women are different.) I get that. And I am not dissing your culture. Not exactly.

But I am saying that all cultures have some dysfunction and unhealthiness to them. (Black Americans for example, hate to fucking read and write...and there are reasons for that-primarily slavery.) Jews don’t have that problem. They are some reading and writing mfers...and some calculating mfers, all into the money. Sometimes it’s too much.

It turns into a love of money. And this is a very dangerous thing for the Jews in Germany. ... You white people...almost everything you say, and everything you do, really pisses us off (Ghetto Princess talking now) because you people are so insensitive to all the fucked up shit that happens to us (like German Nazis) and you expect us to cry over your pain. Pulease. ... [Y]ou do all kinds of mental gymnastics to avoid admitting the fact that the UNITED STATES GOVERNMENT locked us the fuck up in them hoods, just like the Germans did them Jews.

America has its own holocaust – and if you are white in America you are straight up on the Nazi side of it. And if you think we don’t know who you all are, and what you are about and that most of you who vote Republican are racist AF, and are trying to kill us off, because you just don’t want to deal, well you’re wrong. We know you people. It’s you who don’t know us. ...

Okay, so let’s get to it. Let’s talk about the money. You don’t want to give me 50% of the punitive. Well technically...if we ever see them 6 punitive damages (which is sucha crap shoot) YOU CAN ONLY GET TO THEM BECAUSE OF ME!

ONLY BECAUSE OF ME! This law, that we are requesting the punies under- IT WAS WRITTEN FOR ME. NOT YOUR WHITE ASS FOR ME. The argument has been made under my own cause of action, because of an injury TO ME- NOT YOU. ...

And so for you to have the AUDACITY, to get an attitude about a law SPECIFICALLY WRITTEN FOR ME and to try and take WHAT IS MINE?????? Like who in the fuck do you think you are???? ... But when you was coming for my fees, the ghetto princess in me, was like This mfer is coming for you, you better back him the fuck up and off of you! That was what it felt like.

I know why you’re like this. If you are in fact Jewish, this is a part of your culture, yall Jew boys and that money...you think it’s antisemitic for people to call you out for the fucked-up shit you do. NO. It is not.

Ms. Maiden’s letter also sets forth proposed monetary terms for their relationship going forward, including that she would be entitled to 40% of any punitive damages, would bill $600 per hour for legal services, but would give Mr. Riese back 30% of what she charged and would “hold [him] accountable for [only] 50% of the bill” if they were unsuccessful. The hearing judge found that all the statements in the letter were made “in the course of negotiating the attorney-client relationship for future representation.” The following day, Mr. Riese confirmed that he had received Ms. Maiden’s letter, told her that he found it offensive and disconcerting, and stated that he was terminating her representation. Ms. Maiden agreed to withdraw and said that she was “not surprised by [his] response to [her] letter,” which she found to be “very typical . . . from someone like [him]” because he did not understand, could not understand, and did not care to understand 7 her experiences. She emphasized that their conversation about § 1981 had been “deeply offensive to [her] as an African-American woman, whose family climbed up out of slavery; and has to deal with the after [e]ffects of that American institution every single day.” In a final email transmitting a withdrawal letter for Mr. Riese to provide to the State Department and the EEOC, Ms. Maiden said that she had given Mr. Riese “the benefit of the doubt,” which she explained was why his behavior was “deeply, deeply offensive.” Procedural History Mr. Riese filed a complaint with the Commission.

Bar Counsel requested a written response from Ms. Maiden. When the initial response failed to address the 20-page letter to Mr. Riese, Bar Counsel followed up with a request that she do so. Ms. Maiden then asserted that she had attached the letter to her email to Mr. Riese by mistake. In February 2021, the Commission filed a Petition for Disciplinary or Remedial Action.

This Court assigned a hearing judge, who conducted a hearing at which Mr. Riese and Ms. Maiden testified. The hearing judge then issued a written opinion making findings of fact by clear and convincing evidence consistent with the recitation above. The hearing judge also made conclusions of law, including that Ms. Maiden had violated: • Rule 1.1 (Competence), by failing “to recognize the conflict of interest created when she added a cause of action that required her to join Mr. Riese’s case as an injured party[.]” • Rule 1.7 (Conflict of Interest — General Rule), by “creat[ing] an impermissible conflict of interest,” without obtaining Mr. Riese’s written consent, “when she joined Mr. Riese’s cause of action as a fellow injured party while continuing to represent him,” thus “creat[ing] the risk that she would put her own personal interests above those of Mr. Riese.” 8 • Rule 1.8 (Conflict of Interest; Current Clients; Specific Rules), by naming herself as co-party to Mr. Riese’s case and thus “acquir[ing] a proprietary interest in Mr. Riese’s cause of action, including a claim to 50% of any punitive damages recovered by Mr. Riese.” • Rule 1.16 (Declining or Terminating Representation), by “fail[ing] to terminate her representation of Mr. Riese” “after naming herself as an aggrieved co-party.” • Rule 8.1 (Bar Admission and Disciplinary Matters), by “knowingly and intentionally misrepresent[ing] to Bar Counsel that she attached the December 2 letter to Mr. Riese in error.” • Rule 8.4 (Misconduct), by sending Mr. Riese a letter that manifested bias and prejudice based on religion, knowingly and intentionally misrepresenting to Bar Counsel that she had not purposely sent the letter, and violating other rules of professional conduct. Neither party filed exceptions to any of the hearing judge’s findings of facts or conclusions of law.

DISCUSSION I. THE HEARING JUDGE’S CONCLUSIONS OF LAW ARE SUPPORTED BY CLEAR AND CONVINCING EVIDENCE. In the absence of exceptions, we may treat the hearing judge’s findings as established. See Silbiger, 2022 478Md. 607, 617 (2022) (citing Md. Rule 19-740(b)(2)(A)). However, we still conduct a non-deferential review of the hearing judge’s conclusions of law, Md. Rule 19-740(b)(1), and determine whether clear and convincing evidence establishes a violation of the rules of professional conduct, Silbiger, 478 Md. at 617 .

Based upon our independent review of the record, we agree with the hearing judge that the Commission established multiple violations of the MARPC by clear and 9 convincing evidence. Ms. Maiden’s conduct underlying those violations generally falls into two categories: (1) creating, failing to recognize, and failing to resolve a conflict of interest; and (2) sending an antisemitic and highly offensive 20-page letter to Mr. Riese and, later, knowingly and intentionally misrepresenting to Bar Counsel that she had sent the letter by mistake. We address each category in turn. A. Ms. Maiden Violated Multiple Rules of Professional Conduct by Creating, Failing to Recognize, and Failing to Resolve a Conflict of Interest.

The hearing judge concluded that Ms. Maiden violated multiple rules of professional conduct by creating a conflict of interest without obtaining a written waiver of the conflict (Rules 1.7 and 1.8), failing to recognize that she had done so (Rule 1.1), and failing to terminate her representation after doing so (Rule 1.16). We agree. A conflict of interest exists when “there is a significant risk that the representation of one or more clients will be materially limited by . . . a personal interest of the attorney.” Md. Rule 1.7(a)(2). Attorneys are therefore generally precluded from “acquir[ing] a proprietary interest in [a] cause of action or subject matter of litigation the attorney is conducting for a client[.]” Md. Rule 1.8(i).

That is because “[t]he risk to a client is greatest . . . when the attorney’s financial interest otherwise poses a significant risk that the attorney’s representation of the client will be materially limited by the attorney’s financial interest[.]” Md. Rule 1.8 cmt. 3. The rules forbidding such conflicts are “‘designed to avoid giving the lawyer too great an interest in the representation’ . . . because a lawyer’s economic interest in the outcome of the client’s case can erode the lawyer’s independent judgment.” Attorney Grievance Comm’n v. O’ Leary, 433 Md. 2, 36 (2013) (quoting Md. 10 Rule 1.8 cmt. 16) (holding that an attorney violated Rule 1.8(i) by representing a client in a matter in which the attorney had a proprietary interest in the outcome). Ms. Maiden created a