Attorney Grievance v. Rheinstein

Attorney Grievance Commission of Maryland v. Jason Edward Rheinstein, Misc. Docket AG No. 77, September Term, 2015. Opinion by Battaglia, J. ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Court of Appeals disbarred attorney who engaged in deceitful and dishonest conduct that was prejudicial to the administration of justice by misrepresenting facts to a circuit court judge in an effort to intimidate his opponents, advanced unsubstantiated claims of fraud against opposing party and led a tribunal to believe that opposing party had been facing criminal charges, without bases; his ill-motive was further demonstrated by his repeated attempts to disqualify any attorney retained by the opposing party and bully counsel into settling cases for ridiculous amounts; his pursuit of litigation in a vexatious manner and intolerable delay of the disciplinary proceeding also supported the sanction of disbarment. Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 3.1 (Meritorious Claims and Contentions), 3.4 (Fairness to Opposing Party and Counsel), 4.4 (Respect for Rights of Third Persons), 8.4(a) (Violating MLRPC), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation) and 8.4(d) (Conduct that is Prejudicial to the Administration of Justice).

Circuit Court for Anne Arundel County Case No.: C-02-CV-16-000597 Argued: November 5, 2019 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 77 September Term, 2015 ______________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JASON EDWARD RHEINSTEIN ______________________________________ Barbera, C.J., McDonald, Watts, Hotten, Booth Battaglia, Lynne, A. (Senior Judge, Specially Assigned), Greene Jr., Clayton (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Battaglia, J. ______________________________________ Filed: January 24, 2020 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-04-09 16:33-04:00 Suzanne C. Johnson, Clerk Jason Edward Rheinstein (“Rheinstein”), Respondent, was admitted to the Bar of this Court on December 15, 2005.

On February 17, 2016, the Attorney Grievance Commission (“Petitioner” or “Bar Counsel”), acting pursuant to Maryland Rule 16- 751(a),1 filed a Petition for Disciplinary or Remedial Action (“Petition”) against Rheinstein related to his representation of Charles and Felicia Moore. The Petition alleged that Rheinstein violated the following Maryland Rules of Professional Conduct (“Rule”): 1.1 1 Effective July 1, 2016, the Maryland Lawyers’ Rules of Professional Conduct were renamed the Maryland Attorneys’ Rules of Professional Conduct and moved to Title 19, Chapter 300 of the Maryland Rules. Because all relevant conduct occurred prior to the revision, we shall refer to the Lawyers’ Rules. Rule 16-751(a), now Rule 19-721(a) provided, in relevant part: (a) Commencement of disciplinary or remedial action.

(1) Upon approval or direction of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. (Competence),2 3.1 (Meritorious Claims and Contentions),3 3.2 (Expediting Litigation),4 3.4 (Fairness to Opposing Party and Counsel),5 4.4 (Respect for Rights of Third Persons)6 2 Rule 1.1 provided: “A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” The revised Rule 1.1 is now numbered as Maryland Rule 19-301.1. 3 Rule 3.1 provided: A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law.

A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party’s case be established. The revised Rule 3.1 is now numbered as Maryland Rule 19-303.1. 4 Rule 3.2 provided: “A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of the client.” The revised Rule 3.2 is now numbered as Maryland Rule 19-303.2. 5 Rule 3.4, in pertinent part, provided: “A lawyer shall not: (c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists[.]” The revised Rule 3.4 is now numbered as Maryland Rule 19-303.4. 6 Rule 4.4 provided: (a) In representing a client, a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that the lawyer knows violate the legal rights of such a person. (b) In communicating with third persons, a lawyer representing a client in a matter shall not seek information relating to the matter that the lawyer knows (continued . . .) 2 and 8.4 (Misconduct).7 The allegations of the Petition stem from his representation in the Circuit Court for Baltimore City of the Moores in challenging confessed judgments entered against them based upon their default on a construction loan in the amount of $200,000.00 from Imagine Capital, Inc. In an Order dated February 23, 2016, we referred the matter to Judge Paul F. Harris of the Circuit Court for Anne Arundel County for a hearing, pursuant to Maryland Rule 16-757.8 Judge Glenn L. Klavans of the Circuit Court for Anne Arundel County heard the (continued . . .) or reasonably should know is protected from disclosure by statute or by an established evidentiary privilege, unless the protection has been waived. The lawyer who receives information that is protected from disclosure shall (1) terminate the communication immediately and (2) give notice of the disclosure to any tribunal in which the matter is pending and to the person entitled to enforce the protection against disclosure.

The revised Rule 4.4 is now numbered as Maryland Rule 19-304.4. 7 Rule 8.4, in pertinent part, provided: It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ 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[.] The revised Rule 8.4 is now numbered as Maryland Rule 19-308.4. 8 Rule 16-757, currently renumbered as Rule 19-727, stated: (continued . . .) 3 matter following Judge Harris’s retirement; he determined that Rheinstein had committed discovery violations which warranted sanctions culminating in Respondent admitting the allegations in the Petition as well as being prohibited from presenting evidence, to include the presentation of experts.9 We begin with an extensive review of the procedural history. (continued . . .) (a) Generally. The hearing of all disciplinary or remedial action is governed by the rules of evidence and procedure applicable to a court trial in a civil action tried in a circuit court. Unless extended by the Court of Appeals, the hearing shall be completed within 120 days after service on the respondent of the order designating a judge.

Before the conclusion of the hearing, the judge may permit any complainant testify, subject to cross-examination, regarding the effect of the alleged misconduct. A respondent attorney may offer, or the judge may inquire regarding, evidence otherwise admissible of any remedial action undertaken relevant to the allegations. Bar Counsel may respond to any evidence of remedial action. (b) Burdens of proof.

The petitioner has the burden of proving the averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence. (c) Findings and conclusions. The judge shall prepare and file or dictate into the record a statement of the judge’s findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law.

If dictated into the record, the statement shall by promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. (d) Transcript.

The petitioner shall cause a transcript of the hearing to be prepared and included in the record. (e) Transmittal of record. Unless a different time is ordered by the Court of Appeals, the clerk shall transmit the record to the Court of Appeals within 15 days after the statement of findings and conclusions is filed. 9 Rheinstein proffered what his experts would have testified about, as we discuss infra. 4 PROCEDURAL HISTORY Rheinstein was served with the Petition for Disciplinary or Remedial Action, our Order, and the Writ of Summons on April 22, 2016. On the same day, Bar Counsel served counsel for Respondent with Petitioner’s First Set of Interrogatories and Petitioner’s First Request for Production of Documents.

On May 12, 2016, Rheinstein filed, in the circuit court, “Respondent’s Motion to Dismiss Petition for Disciplinary or Remedial Action for Failure to State a Claim and Lack of Ripeness; or in the Alternative, Motion for More Definite Statement; and Request for Hearing.” On May 23, 2016, without responding to Bar Counsel’s discovery requests and before his motion to dismiss was ruled upon, Respondent also filed a Notice of Removal in the United States District Court for the District of Maryland, contending that the federal court possessed jurisdiction because of federal questions and the federal officer removal statute.10 Ten months later, on March 17, 2017, after Bar Counsel moved to have the case 10 Respondent contended that the federal court possessed jurisdiction over the disciplinary action against him based upon 28 U.S.C. § 1441 , which, in part, provides: (a) Generally. – Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending. *** (c) Joinder of Federal Law Claims and State Law Claims. – (1) If a civil action includes – (A) a claim arising under the Constitution, laws, or treaties of the United States (within the meaning of section 1331 of this title), and (continued . . .) 5 remanded back to the state court, the federal district court did so, noting that it did not have jurisdiction over the matter, and, if it were to have possessed jurisdiction, it “would nevertheless have abstained and remanded the case to proceed in the state court.” Attorney (continued . . .) (B) a claim not within the original or supplemental jurisdiction of the district court or a claim that has been made nonremovable by statute, the entire action may be removed if the action would be removable without the inclusion of the claim described in subparagraph (B). (2) Upon removal of an action described in paragraph (1), the district court shall sever from the action all claims described in paragraph (1)(B) and shall remand the severed claims to the State court from which the action was removed. Only defendants against whom a claim described in paragraph (1)(A) has been asserted are required to join or in consent to the removal under paragraph (1). Respondent also posited that the federal court possessed federal officer jurisdiction over the suit, which is governed by 28 U.S.C. § 1442 , and provides in part: (a) A civil action or criminal prosecution that is commenced in a State court and that is against or directed to any of the following may be removed by them to the district court of the United States for the district and division embracing the place wherein it is pending.

(1) The United States or any agency thereof or any officer (or any person acting under that officer) of the United States or of any agency thereof, in an official or individual capacity, for or relating to any act under color of such office or on account of any right, title or authority claimed under any Act of Congress for the apprehension or punishment of criminals or the collection of the revenue. (2) A property holder whose title is derived from any such officer, where such action or prosecution affects the validity of any law of the United States. (3) Any officer of the courts of the United States, for or relating to any act under color of office or in the performance of his duties. (4) Any officer of either House of Congress, for or relating to any act in the discharge of his official duty under an order of such House. 6 Grievance Comm’n of Maryland v. Rheinstein, No. MJG-16-1591, 2017 WL 1035831 , at ³ (D. Md. Mar. 17, 2017).

On June 8, 2017, upon remand, Judge Harris heard arguments on the 2016 motion to dismiss and subsequently denied it. During this hearing, Judge Harris stated on the record that the deadline for discovery was August 8, 2017, which was noted on the Scheduling Conference Hearing Sheet, albeit not on the Scheduling Order: THE COURT: All right. We’re going to conduct a scheduling conference. Have we – how do we stand time wise? [BAR COUNSEL]: Your Honor, I was doing the calculations and I know I had talked to your clerk about this too, service – the original service in this case was April 22, 2016, so pursuant to the Court’s original order we had 120 days from that date to complete the hearing on this matter.

The matter was removed to the federal court on May 23, 2016, so we’ve used up the first 30 days. It was remanded on March 17th, 2017. So I think between March 17th, if my math is correct and today, that’s . . . an additional 85 days. But my suggestion would be, Your Honor, with the Court’s permission, that we start the clock anew.

Discovery has been propounded by the Petitioner, but as Your Honor knows the answer hasn’t been filed yet, discovery responses haven’t begun again. . . . THE COURT: Answers to your discovery have not been made? [BAR COUNSEL]: That’s correct, Your Honor. THE COURT: Okay. When are they due? [BAR COUNSEL]: They were – oh, they were due – they’ve been long overdue, but I haven’t filed a motion to comply.

THE COURT: Well but I - - if discovery has already started I need to put limit on the discovery deadline. . . . Why haven’t your responses been given yet? [COUNSEL FOR RESPONDENT]: It has been in the federal court since then. 7 THE COURT: Well it’s not anymore is it? [COUNSEL FOR RESPONDENT]: Well, Your Honor, two of the claims that they made involve federal lawsuits. THE COURT: Uh-huh. [COUNSEL FOR RESPONDENT]: And the issue was whether they should be resolved by the court in which they are filed under federal law and not in a Maryland court deciding what a federal court should do. And that has just ended with its removal from the federal court back to Maryland.

And so that delayed everything. THE COURT: All right. Well why don’t we do this. Let me - - bear with me. . . .

Are we going to need an extension? [BAR COUNSEL]: Your, Honor, that’s what I was going to say is we’re very likely going to need an extension any way, and so my preference would be, and I know that I’ve spoken to [counsel for Respondent] about this briefly earlier in the week, is that we sort of start over as if things had - - as if the petition had just been filed, maybe look at a trial date in December and then get an extension for the trial date and then backtrack the dates for discovery deadline and the like. (alterations added). Judge Harris chose to conclude discovery within 60 days, by August 8, 2017: THE COURT: Today is June 8th, I see no reason why discovery should not be completed within 60 days. Everybody in agreement with that? [BAR COUNSEL]: I am, Your Honor.

THE COURT: Okay. Counsel? [] [COUNSEL FOR RESPONDENT]: It’s going to be tight. I know my own schedule and I know what I’ve got trial wise and everybody else. I think 60 days is pushing it to get everything done that needs to be done.

THE COURT: Well let me tell you, sir, with all due respect we do medical malpractice cases and get them done in 60 days. So it’s going to be 60 days. 8 [COUNSEL FOR RESPONDENT]: I understand. I was asked though, and I’m telling you - - THE COURT: Well I appreciate it, I appreciate your input. *** THE COURT: Okay. So we’re going to set the discovery deadline for August 8th. [COUNSEL FOR RESPONDENT]: May I ask a question, Your Honor?

THE COURT: Go ahead, Counsel. [COUNSEL FOR RESPONDENT]: Is it August date to be filed or August date to be answered and completed? THE COURT: Everything done. [COUNSEL FOR RESPONDENT]: Done. Both ways. THE COURT: So read our DCM policy, because if there’s an issue with a motion to compel discovery all of that needs to be recognized short of the 60 days so it can be resolved within 60 days.

Okay? [COUNSEL FOR RESPONDENT]: That’s correct. Is the time the same as in the rule 30 days to answer or should we adjust that? THE COURT: Well that – look at our DCM plan. I mean to answer your question there’s two ways to approach it.

If we went by the rule you would already be in default for not answering her discovery at this point. . . . That’s what the rule says. But because we haven’t had the opportunity of the scheduling order yet our DCM plan would kick in and the dates that I’m setting you can get your discovery done well before that. [COUNSEL FOR RESPONDENT]: I understand, Your Honor, but please understand perhaps I’m in error, but this matter has been under the jurisdiction of the federal court with the [state] court no longer having jurisdiction until recently. THE COURT: The Attorney Grievance matter was in federal court; is that what you’re saying? 9 [COUNSEL FOR RESPONDENT]: Yes.

Yes, Your Honor. [] Okay. And our contention was that you couldn’t claim a federal case was frivolous when it was pending to be heard by the federal court and you had to await the ruling in the federal court. And the federal court took that under consideration. It took a while with [them] then said, no, send it back just for discipline.

(alterations added). At the hearing, Judge Harris also inquired as to whether the parties would be calling any expert witnesses: THE COURT: Any need for experts? [BAR COUNSEL]: Not on my side, Your Honor. [COUNSEL FOR RESPONDENT]: I don’t know as [of] yet, Your Honor, I’m not sure until we get discovery what they’re claiming is frivolous. The hearing on the matter was set for six days to begin on September 5, 2017. On June 30, 2017, the attorneys representing Rheinstein moved to withdraw whereupon Respondent entered “the appearance of Jason E. Rheinstein, Esq., pro se, as counsel for the Respondent[.]” On July 19, 2017, Bar Counsel filed a Motion for Sanctions and Order of Default, based upon Respondent’s failure to answer the Petition within fifteen days of April 22, 2016, the date of its service; his failure to respond to Bar Counsel’s interrogatories and requests for production of documents or otherwise to explain his failure to respond or seek a protective order, thus, asking the court to: (a) Order that the averments in the Petition for Disciplinary or Remedial Action be deemed admitted; (b) Order the Respondent be precluded from calling any witnesses at trial; (c) Order the Respondent be precluded from presenting any documents at trial; 10 (d) Order that the Respondent be precluded from presenting any evidence or testimony which contradicts the averments in the Petition for Disciplinary or Remedial Action; (e) Order that the Respondent be precluded from testifying to any matter other than any alleged mitigation; (f) Enter an Order of Default against the Respondent in this proceeding; (g) Direct the Clerk to issue notice pursuant to Rule 2-613(c); and (h) Grant such other and further relief as the court deems appropriate.

On the following day, Respondent filed a 99-page Answer to the Petition, in which he denied the averments in the Petition by asserting that the actions in the Moore litigation were justified and supplied the following affirmative defenses, albeit without any mention of mitigation: First Affirmative Defense: Inadequate Notice/Lack of Procedural Due Process Second Affirmative Defense: Legal Insufficiency/Failure to State a Claim Third Affirmative Defense: Unclean Hands Fourth Affirmative Defense: Laches Fifth Affirmative Defense: Release, Settlement, Accord and Satisfaction Sixth Affirmative Defense: Implied Consent Seventh Affirmative Defense: Express Consent Eight Affirmative Defense: Waiver Ninth Affirmative Defense: Equal Protection Tenth Affirmative Defense: Equitable Estoppel Eleventh Affirmative Defense: Subject Matter Jurisdiction Twelfth Affirmative Defense: Res Judicata Thirteenth Affirmative Defense: Collateral Estoppel 11 Fourteenth Affirmative Defense: Duress (emboldening and underlining removed). Respondent also asserted that he “reserve[d] the right to assert any other defense provided by rule or statute, whether listed herein or not, including, but not limited to, defenses listed in Maryland Rule 2-322 and Maryland Rule 2-323.” Rheinstein, again, requested that the Petition be dismissed. Within days, he propounded his “First Request for Production of Documents” and “First Set of Interrogatories” on Bar Counsel. On August 2, 2017, Respondent also filed an Opposition to Motion for Sanctions and Order of Default, in which he argued that Petitioner’s discovery, propounded on April 22, 2016, was “invalid” after he removed the case to the federal court and that Bar Counsel was required to propound new matters in discovery after the case was remanded, such that the failure to do so precluded any discovery violations and attendant sanctions.

On August 3, 2017, Judge Harris, with the parties in chambers, stated that the written scheduling order was ambiguous as it specified only that expert designations were due August 8, 2017, but did not expressly state that all discovery closed August 8, 2017, as he had stated during the hearing on June 8, 2017. Judge Harris, nevertheless, directed that the parties “get discovery done.” On August 9, 2017, the day after which discovery was to be completed, pursuant to the June 8th hearing, Rheinstein filed a Motion for Extension of Time to Complete Expert Designations, stating that he intended to enlist an expert to opine that the pleadings he filed in the Moore case were not frivolous, as alleged in the Petition. In that motion, Rheinstein 12 expressed his need for additional time for discovery, as he proffered his need to review the transcripts from a recent deposition of an Attorney Grievance Commission member which he had not received; his motion, however, was denied on September 1, 2017. By order dated August 14, 2017, Judge Harris, however, had denied Bar Counsel’s Motion for an Order of Default against Respondent, because of the Answer filed on July 20, 2017, although the Judge also stated that Petitioner’s Motion for Sanctions would be addressed at trial.

On August 21, 2017, Bar Counsel provided Respondent her Answers to Interrogatories and Responses to Request for Production of Documents. On August 23, 2017, Respondent filed a Motion for Clarification of Scheduling Order Deadline, which Judge Harris denied. Respondent, nevertheless, just days before trial was set to begin, on September 2, 2017, filed a second Notice of Removal in the United States District Court for the District of Maryland, arguing that the second removal differed from the first based upon Bar Counsel’s responses to his interrogatories and requests for production,11 which allegedly necessitated removal and thus, obviated the need for the state court hearing; in language alleging an “illicit strategy” on behalf of Bar Counsel, Rheinstein contended that: 11 As authority for the second removal, Respondent cited 28 U.S.C. § 1446 (b)(3), which provides: Except as provided in subsection (c), if the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable. 13 This Court should not decline to exercise its jurisdiction over any claims in this matter because (1) jurisdiction is mandatory in cases properly removed under 28 U.S.C. § 1442 ; (2) [Bar Counsel]’s discovery responses (contrary to what it previously asserted) conclusively establish that it is attempting to try the merits of Qui Tam I, currently still pending before this Court, in the State Court Proceeding; (3) documents produced by [Bar Counsel] suggest this action was primarily brought to undermine [Respondent]’s ability to pursue the case still-pending before this Court; and very significantly, (4) [Bar Counsel] has brought exceedingly vague and broad allegations in this case as part of an illicit strategy on the part of one of its employees, Lydia E. Lawless, to exploit the state court procedural rules in a manner that has the practical effect of rendering the notice requirements of due process nugatory and ineffectual. On September 5, 2017, the day on which the hearing was scheduled to begin, Bar Counsel filed in the federal court an Emergency Motion for Remand for Lack of Federal Jurisdiction, which that court granted on September 20, 2017.

Respondent, however, thereafter, noted an appeal in the United States Court of Appeals for the Fourth Circuit; this Court, in response to a consent motion of the parties, stayed the instant proceedings “pending final disposition by the United States Court of Appeals for the Fourth Circuit.” On February 5, 2019, the United States Court of Appeals for the Fourth Circuit, in an unpublished per curiam opinion,12 affirmed the district court decision to remand the case to the state court; and on May 17, 2019, this Court granted Bar Counsel’s Motion to Lift Stay and For Appropriate Relief. The matter was then assigned to Judge Glenn L. Klavans of the Circuit Court for Anne Arundel County, upon the retirement of Judge Harris. We ordered that a hearing on the matter be held as soon as possible, within sixty days of our 12 Attorney Grievance Comm’n v. Jason Edward Rheinstein, 750 F. App’x 225 (4th Cir. 2019), cert. denied, 140 S. Ct. 226 (2019). 14 May 17th order, noting that “discovery in the Circuit Court was concluded in August 2017.” On June 10, 2019, new counsel entered an appearance as counsel for Respondent. On June 5, 2019, counsel for Respondent emailed Bar Counsel stating that Respondent would require “4 to 5 days for the defense case,” to which Bar Counsel emailed a response, stating that, “I’m not sure how you will use 4-5 days as Mr. Rheinstein never responded to discovery identifying any witnesses or individuals with personal knowledge or designated an expert. . . .

Please immediately notify me of your intended witnesses.” On June 6, 2019, counsel for Rheinstein replied, advising that, “[a]t present, we’ve identified a number of people with personal knowledge that might be called at trial,” listing mainly individuals involved with the underlying litigation, including Lydia Lawless, Bar Counsel, and concluding that, “[t]he above list is preliminary and does not include our client of course, expert witnesses, and other potential witnesses.” Judge Klavans, on June 6, 2019, scheduled a hearing on the matter to take place over the course of six days beginning on July 1, 2019. On June 12, 2019, Bar Counsel filed a Motion for Sanctions and/or Motion in Limine, reiterating the reasons set forth in the 2017 Motion for Sanctions and Order of Default, asking that the circuit court: A. Grant Petitioner’s Motion for Sanctions and/or Motion in Limine; B. Order that the averments in the Petition for Disciplinary or Remedial Action be deemed admitted; C. Strike Respondent’s Answer to the Petition for Disciplinary or Remedial Action; D. Order the Respondent be precluded from calling any witnesses at trial; 15 E. Order the Respondent be precluded from presenting any documents at trial; F. Order that the Respondent be precluded from presenting any evidence or testimony which contradicts the averments in the Petition for Disciplinary or Remedial Action; and [G]. Grant such other and further relief as the court deems appropriate. (alteration added).

On the following day, Rheinstein served Bar Counsel with “Respondent’s Answers to Petitioner’s Renewed First Set of Interrogatories” and “Respondent’s Response to petitioner’s Renewed First Request for Production of Documents, Electronically-Stored Information and Property.”13 In one of his responses, Respondent provided an extensive list of individuals he intended to call as non-expert witnesses at the hearing: Individuals with discoverable information include the parties and attorneys involved in the case identified in Table 2 of EXHIBIT 1, which is incorporated by reference. Such individuals also include the persons who served as investigators on behalf of the Petitioner and subject to the Touhy regulations,[14] the various federal officials who were assigned to investigate the real estate transactions in the underlying cases. *** Each of the individuals identified has information relating to the case(s) or related matter(s) (such as real estate transactions, etc.) for which he or she was a party, an attorney, or an investigator. Pursuant to Maryland Rule 2- 421(c), the identities of additional persons may be derived from the documents identified in the Table of Contents of each of the indexed volumes listed in EXHIBIT 2, attached hereto. Each of the volumes listed in Exhibit 2 was previously provided to the Petitioner in the present litigation.

Please 13 The responses were to Bar Counsel’s discovery requests originally propounded on April 22, 2016. Bar Counsel did not serve any other additional discovery requests. 14 Touhy regulations refer to “[h]ousekeeping regulations that create agency procedures for responding to subpoenas[.]” COMSTAT Corp. v. Nat’l Sci. Found., 190 F.3d 269 , 272 n.3 (4th Cir. 1999) (citing United States ex rel. Touhy v. Ragen, 340 U.S. 462 , 71 S. Ct. 416 , 95 L.Ed. 417 (1951)). “In Touhy the Court ruled that agency employees may not be held in contempt for refusing to answer a subpoena, if prohibited from responding by a superior.” Id.

(citing Touhy, 340 U.S. at 468 , 71 S. Ct. 416 ). 16 also see Respondent’s 99-page Answer to the PDRA filed in the Circuit Court for Anne Arundel County on July 20, 2017, Respondent’s Corrected Opening Brief of Appellant filed in the United States Court of Appeals for the Fourth Circuit on May 11, 2018, Respondent’s Corrected Reply Brief of Appellant filed in the United States Court of Appeals for the Fourth Circuit on January 14, 2019, and Respondent’s filings in the United States District Court for the District of Maryland in the removal cases[.] With respect to expert witnesses, Respondent responded that: The Respondent expects to call Douglas Bergman, Esquire as an expert witness at trial. . . . Mr. Bergman . . . has been practicing law since 1974 and is expected to testify about the matters at issue in this case. It is anticipated that Mr. Bergman, based upon his review of certain materials, his education, review of the applicable ethical rules, and experience as a lawyer will testify generally about the matters as set forth in the AGC’s Petition for Disciplinary or Remedial Action (“PDRA”) and rebut the assertions made by the Petitioner against the Respondent in the PDRA. It is anticipated that Mr. Bergman will testify and offer opinions about the reasons why the filings and other materials referenced in the PDRA as being frivolous were not frivolous.

It is anticipated that Mr. Bergman will testify and offer opinions about the communications mentioned in the PDRA that are characterized as “Respondent’s Continued Threats and Abusive Behavior.” All of Mr. Bergman’s opinions will be offered to a reasonable degree of legal certainty. Respondent is also endeavoring to locate a mental health expert to opine on Respondent’s attention deficit disorder (“ADHD”) disability and why it was the root cause of certain matters at issue in the PDRA, including the communications characterized as “Respondent’s Continued Threats and Abusive Behavior.” The Respondent reserves the right to supplement this and all other discovery responses. In response to Bar Counsel’s inquiry as to whether Respondent intended to contend that “an injury, disability or illness of physical, mental or emotional nature caused or contributed to the circumstances described in and upon” which the PDRA is based, to state the facts upon which he would rely to establish that connection and list any individuals who have investigated “the cause or circumstances of the matter(s)” described in the PDRA, Rheinstein responded that he 17 intends to offer evidence that he suffers from a disability, attention deficit hyperactivity disorder (“ADHD”), which, among others, negatively impacts impulse control and that his ADHD is the root cause of some of the matters at issue in the PDRA, including the communications labeled “Respondent’s Continued Threats and Abusive Behavior.” *** The Respondent’s counsel have investigated the matter on his behalf. The Respondent also retained an expert witness as detailed above, and plans to designate a mental health expert as well as detailed above.

Lastly, with respect to Bar Counsel’s inquiry as to which, if any, factors in mitigation Respondent planned to proffer at the hearing, Respondent objected, stating that this interrogatory “specifically seeks information protected by the work-product doctrine,” and listed the mitigation factors adopted by this Court, stating that he “also reserves the right to supplement this answer and introduce evidence regarding additional mitigating factors as the list [] is not exhaustive.” In Respondent’s Response to Petitioner’s Renewed First Request for Production of Documents, Electronically-Stored Information and Property, Rheinstein contended that he was under no obligation to disclose further documents, arguing that, for many of the requests, a privilege existed which barred disclosure, or referred Bar Counsel to documents “provided in electronic form by Respondent Jason Rheinstein to Petitioner Attorney Grievance Commission” in 2017 and 2018. On June 24, 2019, Respondent filed an Opposition to Petitioner’s Motion for Sanctions and/or Motion in Limine, arguing that any request for discovery sanctions should be denied because, “[t]here was no failure of discovery since the Pre-Removal Discovery Requests did not survive the first removal of this case, and the Petitioner never renewed its discovery requests until it filed its” most recent motion for sanctions. Rheinstein also 18 argued that sanctions should be denied because Bar Counsel “failed to make any good faith efforts to resolve any perceived discovery dispute.” Respondent further contended that sanctions were not warranted because Bar Counsel had not been prejudiced by the discovery violation as, in Rheinstein’s opinion, it “now has all the information it was seeking since the Respondent promptly answered the requests after Petitioner renewed them through its” Motion for Sanctions and/or Motion in Limine. Counsel for Rheinstein, thereupon, also filed a Motion for a 60-Day Continuance of the hearing in this Court, seeking additional time to conduct discovery based upon the fact that counsel “were retained to defend the case 14 days ago” and that key witnesses were not available to testify at the hearing as scheduled and that Respondent “wish[ed]” to present expert testimony, including medical expert testimony in mitigation.” This Court denied the motion.

On the same day, Bar Counsel filed a Supplement to Petitioner’s Motion for Sanctions and/or Motion in Limine, arguing further reasons as to why Rheinstein should be precluded from proffering evidence, stating, in part: In response to the Interrogatories the Respondent stated for the first time during the three years this case has been pending, his intention to offer his purported ADHD diagnosis as a defense/mitigation. As noted above, the Respondent has failed to designate any expert to testify in support of the proposed defense and/or mitigation and the Petitioner has been precluded from doing any discovery into the Respondent’s diagnosis, medical history, symptoms, or causal connection. Similarly, the Petitioner has been precluded from obtaining an independent medical evaluation of the Respondent during discovery. Additionally, the Respondent has failed to produce any documents associated, in any way, with his purported diagnosis.

In response to the request for information regarding the particular factors in mitigation that he intends to prove at trial, the Respondent, rather 19 than providing a response, merely recites the factors recognized by the Court of Appeals. The Petitioner will be prejudiced if the Respondent is permitted to present evidence in mitigation or any medical evidence related to a defense or mitigation as the Petitioner has been precluded from doing any discovery related to any facts he intends to prove at trial. The failure to provide discovery related to his defenses and/or mitigation is prejudicial as it impedes the Petitioner’s ability to challenge or cross-examine the evidence or witness(es) or obtain an independent evaluation. On June 27, 2019, Judge Klavans granted Bar Counsel’s Motion for Sanctions and request for default, resulting in the admission of the averments in the Petition, striking Rheinstein’s Answer to the Petition, precluding Respondent from calling any witnesses at any hearing, precluding Respondent from presenting any documents at any hearing and precluding Respondent from presenting any evidence or testimony which would contradict the averments contained in the Petition,15 reasoning that: 15 When Judge Klavans granted Petitioner’s Motion for Sanctions and/or In Limine, filed on June 12, 2019, his order did not conflict with Judge Harris’s denial of Petitioner’s Motion for Sanctions and Order of Default, filed on July 19, 2017, because Judge Harris denied the motion on the basis that Respondent had filed an Answer to the Petition, but also preserved the issue of sanctions to be heard on September 5, 2017, at the hearing on the merits.

That hearing never took place because Rheinstein filed his second removal action. Once the disciplinary matter had been remanded to the court in 2019, Rheinstein for the first time indicated that he intended to proffer evidence in mitigation. Bar Counsel in response argued in its Supplement to Petitioner’s Motion for Sanctions and/or Motion In Limine that Rheinstein should not be able to proffer mitigation based upon his earlier failure to disclose any factors in mitigation. After considering Petitioner’s Motion for Sanctions and Order of Default, Petitioner’s Motion for Sanctions and/or Motion in Limine, Supplement to Petitioner’s Motion for Sanctions and/or Motion in Limine, Respondent’s Opposition to Petitioner’s Motion for Sanctions and/or In Limine, filed June 24, 2019, and upon review of the record, Judge Klavans granted Petitioner’s Motion for Sanctions and/or Motion In Limine.

The order deemed admitted all factual averments set forth in the Petition, struck Rheinstein’s Answer and entered a judgment of default, which found that the Rules of Professional Conduct had been violated as alleged in the Petition. As a result, Judge Klavans’ order did not contravene Judge Harris’ order. 20 [T]he Respondent failed, after proper service, to respond to, or supplement, in a timely manner Petitioner’s First Set of Interrogatories, and Petitioner’s First Request for Production of Documents, Electronically Stored Information and Property. The actions of the Respondent, as evidenced by his failure to respond to or supplement discovery requests, without excuse, was purposeful and willful. Respondent, through previous counsel and then pro se, engaged in a course of conduct designed to be dilatory, including but not limited to his failure to provide discovery, and two removals of this action to the federal courts that were summarily remanded to this Court (the second of which was affirmed by the 4th Circuit U.S. Court of Appeals).

The stay in this matter was lifted by the Court of Appeals on May 17, 2019. Yet, Respondent continued to fail to respond to the pending discovery requests. The Court finds that Respondent’s counsel’s email to Bar Counsel attempting to informally provide possible witness names, including an expert witness, for the first time on June 6, 2019, a mere 26 days prior to the scheduled hearing, more than three years after discovery was propounded, and clearly after the discovery deadline in August, 2017, was the very first glimmer of compliance with the discovery rules. It was too little and much too late.

Finally, Respondent’s willful and deliberate course of conduct to subvert the discovery process is also clearly demonstrated from the styling of Respondent’s eleventh-hour responses to the discovery requests: “Respondent’s Answers to petitioner’s Renewed First Set of Interrogatories” (emphasis added), and “Respondent’s Response to Petitioner’s Renewed First Request for Production of Documents, Electronically-Stored Information and Property” (emphasis added), were served upon Petitioner on June 13, 2019. Petitioner’s discovery requests were not renewed. To the contrary, they had been propounded on April 22, 2016. The Court further finds that Respondent made no good faith effort to resolve this discovery dispute.

To the contrary, Respondent’s position that Petitioner’s discovery requests had been somehow nullified by virtue of his removal of the matter to Federal court is unsupported in law. The Respondent sought no protective order therefore. As such, it clearly indicative of dilatory and willful conduct. Respondent’s failures of discovery severely prejudices the Petitioner by preventing Petitioner to learn the identity of Respondent’s witnesses, including expert witnesses, reviewing Respondent’s documentary evidence, both as to facts and mitigation, conducting discovery thereon and properly preparing for the hearing scheduled in this matter, especially in light of the time limitations imposed by law on the timely conduct of attorney disciplinary hearings, as reflected in the Scheduling Order entered in this matter. 21 *** It is therefore: Ordered, Petitioner’s Motion for Sanctions and/or Motion In Limine is GRANTED.

All factual averments set forth in the Petition for Disciplinary or Remedial Action are deemed admitted; the Respondent’s Answer to the Petition for Disciplinary or Remedial Action is hereby STRICKEN and JUDGMENT BY DEFAULT is entered against the Respondent and in favor of the Petitioner, finding that the Rules of Professional Conduct have been violated as alleged in the Petition for Disciplinary or Remedial Action; and it is further ORDERED, that Petitioner is directed to file Proposed Findings of Fact and Conclusions of Law. This Court will conduct a hearing for the purpose of argument only from the parties on such Proposed Findings of Fact and Conclusions of Law, commencing July 1, 2019[.] Rheinstein, then, filed a motion to reconsider Judge Klavans’ order or, “Alternatively, Motion to Alter or Amend Judgment or, Alternatively, Motion to Vacate Default Judgment,” arguing, that the default judgment against him was not appropriate based, in part, upon the fact that he “suffers from ADHD, which caused him to struggle with deadlines and require additional time to complete routine tasks.” On July 8, 2019, Bar Counsel, as directed by Judge Klavans, filed Proposed Findings of Fact and Conclusions of Law. On July 10, 2019, Judge Klavans held a hearing on Respondent’s Motion for Reconsideration and denied it, affirming the July 3rd order of default. At that same hearing, Judge Klavans also heard arguments on Petitioner’s proposed Findings of Fact and Conclusions of Law.

On August 8, 2019, Rheinstein filed a Motion to Supplement the Record for Further Relief and requested a hearing, asking the circuit court to reject Bar Counsel’s proposed conclusions of law based upon their reliance on emails sent by the Respondent in connection with the underlying litigation, “take judicial notice of the publicly-accessible records of the underlying litigation” and allow 22 him to submit a response to Bar Counsel’s Proposed Findings of Fact and Conclusions of Law. Judge Klavans denied Rheinstein’s requests. On August 19, 2019, Judge Klavans issued his Findings of Facts based upon the allegations as admitted and concluded that Rheinstein violated Rules 1.1, 3.1, 3.4, 4.4 and 8.4.16 DISCOVERY SANCTIONS In the instant matter, Judge Klavans found various discovery violations committed by Rheinstein and imposed sanctions which resulted in the admission of the averments in the Petition by Respondent, the striking of Rheinstein’s Answer to the Petition and the inability of the Respondent to present testimony, including that of experts. In attorney grievance matters, we recognize that the hearing judge, generally, “is entrusted with the role of administering the discovery rules and, as such, is vested with broad discretion in imposing sanctions when a party fails to comply with the rules.” Attorney Grievance Comm’n v. Barton, 442 Md. 91, 120 , 110 A.3d 668, 685 (2015) (quoting Attorney Grievance Comm’n v. O’Leary, 433 Md. 2 , 28–29, 69 A.3d 1121, 1137 (2013) (internal citation omitted)).

We, thus, review the hearing judge’s decision to impose discovery sanctions for an abuse of discretion. Id.; Attorney Grievance Comm’n v. Kent, 447 Md. 555, 576 , 136 A.3d 394, 407 (2016). Once a circuit court judge is assigned to oversee the disciplinary matter, the judge is required to “enter a scheduling order” which “shall define the extent of discovery and 16 Bar Counsel had withdrawn the Rule 3.2 allegation. 23 set dates for the completion of discovery, designation of experts, the filing of motions, and a hearing on the petition,” within “15 days after the date on which the answer is due, and after consultation with Bar Counsel and the attorney[.]” Md. Rule 19-722(a). The rules governing the attorney grievance process further provide that, once “a Petition for Disciplinary or Remedial Action has been filed, discovery is governed by Title 2, Chapter 400, subject to any scheduling order entered pursuant to Rule 19-722.” Md. Rule 19-726.

Pursuant to Rule 2-421(b), the party to whom interrogatories are directed “shall serve a response within 30 days after service of the interrogatories or within 15 days after the date on which that party’s initial pleading or motion is required, whichever is later.” Rule 2-422(c) also provides the same deadlines for responses to requests for production or inspection of documents, electronically stored information and property. Where a party fails to comply with the response requirements for interrogatories and requests for production, Rule 2-432(a) permits the discovering party to move for sanctions without first filing a motion to compel discovery: (a) Immediate sanctions for certain failures of discovery. A discovering party may move for sanctions under Rule 2-433(a), without first obtaining an order compelling discovery under section (b) of this Rule, if a party or any officer, director, or managing agent of a party or a person designated under Rule 2-412(d) to testify on behalf of a party, fails to appear before the officer who is to take that persons’ deposition, after proper notice, or if a party fails to serve a response to interrogatories under Rule 2-421 or to a request for production or inspection under Rule 2-422, after proper service. Any such failure may not be excused on the ground that the discovery sought is objectionable unless a protective order has been obtained under Rule 2-403.

Bar Counsel, having propounded interrogatories and requests for production on April 22, 2016, and not having received responses until June 13, 2019, well after the 24 timeline provided for by the rules, moved for the imposition of sanctions on two separate occasions. When a party moves for sanctions pursuant to Rule 2-433(a), “the court, if it finds a failure of discovery,” may enter sanctions “as are just” against the noncomplying party, including: (1) An order that the matters sought to be discovered, or any other designated facts shall be taken to be established for the purpose of the action in accordance with the claim of the party obtaining the order; (2) An order refusing to allow the failing party to support or oppose designated claims or defenses, or prohibiting that party from introducing designated matters in evidence; or (3) An order striking out pleadings or parts thereof, or staying further proceeding until the discovery is provided, or dismissing the action or any part thereof, or entering a judgment by default that includes a determination as to liability and all relief sought by the moving party against the failing party if the court is satisfied that it has personal jurisdiction over the party. If, in order to enable the court to enter default judgment, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any matter, the court may rely on affidavits, conduct hearings or order references as appropriate, and, if requested, shall preserve to the plaintiff the right of trial by jury. In the present action, Judge Klavans’ decision to deem the Petition’s averments as admitted and preclude witnesses from testifying, including experts, on behalf of the Respondent, was consistent with our jurisprudence.

In Attorney Grievance Commission v. Kent, 447 Md. 555 , 136 A.3d 394 (2016), Kent committed a number of discovery violations in his disciplinary matter, including being late to file an Answer to the Petition for Disciplinary or Remedial Action and to failing to respond to Bar Counsel’s interrogatories and requests for production. At the scheduling conference in Kent, Bar Counsel and counsel for Kent agreed upon a deadline by which to have discovery complete, which included Kent’s responses to Bar Counsel’s interrogatories and requests for production of 25 documents. Based upon Kent’s failure to meet that deadline, Bar Counsel filed a Motion for Sanctions for Failure of Discovery and a Motion to Shorten Time for Respondent to Respond, positing that “Respondent’s failure to provide written discovery greatly prejudice[d] the ability of Petitioner’s counsel to prepare to take Respondent’s deposition” and, “[g]iven the short period of time allowed to conduct discovery prior to trial in disciplinary matters, compliance with discovery requirements and deadlines is imperative.” Id. at 560 , 136 A.3d at 397 (alterations in original). The hearing judge granted Bar Counsel’s Motion to Shorten Time to Respond and ordered that Kent provide a response by a date certain.

When no response was received by that date, the hearing judge imposed sanctions against Kent, which included admitting the averments in the Petition for Disciplinary or Remedial Action, striking Kent’s Response to the Petition for Disciplinary or Remedial Action, precluding Kent from calling any witnesses or presenting any documents at the hearing on his alleged misconduct and prohibiting him from presenting any mitigation among other matters. Kent then filed a Response to Petitioner’s Motion for Sanctions and a Motion to Reconsider, positing that he had failed to respond to Bar Counsel’s requests in a timely manner, because his attorney had been out of the office and he had been out of the state, of which the hearing judge denied. At the subsequent hearing on Kent’s alleged misconduct, Kent argued about the discovery sanctions again, asserting that his counsel had been negligent. The judge denied the motion for reconsideration, again, finding that he failed to provide a “compelling reason to further delay these proceedings that are . . . on a very tight 26 timeline pursuant to the rules,” and Kent proceeded pro se.

Id. at 561 , 136 A.3d at 398 (omission in original). Following the hearing, Kent again filed a Motion for Reconsideration and for Appropriate Relief, alleging that his previous attorney was incompetent and that he had participated in his deposition and “provided Answers to Interrogatories and produced many of the requested records,” after the hearing judge’s imposition of sanctions. Id. at 562 , 136 A.3d at 398 . In language prescient to the instant matter, the hearing judge denied Kent’s Motion for Reconsideration: Respondent’s discovery violations are severe, substantial and ongoing.

To date, Respondent has yet to fully respond to the discovery served upon him on July 10 and July 17, 2015. Respondent proffers that he is “in the process of having reconciliations performed for his IOLTA and Trust bank accounts by an accounting/bookkeeping professional. Respondent anticipates that these reports will be completed, and made available to Bar Counsel within the next twenty (20) days.” [] However, Respondent has had formal notice of these proceedings for nearly five months—since May 20, 2015—and actual notice of bar Counsel’s inquiry for many months more. Any reconciliation of Respondent’s banking accounts in preparation for these proceedings should [have] been initiated, at a minimum, before the scheduled hearing date in this matter.

Respondent initially claimed that his discovery failures were due to his counsel’s failure to send him the discovery requests in a timely fashion; however, three months after those requests were served, discovery is still not complete. This court found Respondent’s explanation for his discovery violations incredible at trial and the scant proof offered by Respondent to bolster this claim supports the court’s conclusions. [] This court and Petitioner have both been severely prejudiced by Respondent’s discovery failures which continue to the date of this opinion and are anticipated to continue, by Respondent’s own estimate, through the filing date of this court’s findings of fact and conclusions of law. Therefore, the prejudice suffered by Petitioner, this court and Maryland’s Court of Appeals due to 27 Respondent’s continued delay will not be cured by a simple continuance or postponement of this matter. Id. at 562–63; 136 A.3d at 398–99 (footnote omitted) (alterations added).

Before us, Kent argued that the hearing judge abused her discretion in imposing discovery sanctions based upon his attorney’s failure to timely provide him with the discovery requests propounded by Bar Counsel. He also contended that such “draconian” sanctions should be “reserved for persistent and deliberate violations that actually cause some prejudice, either to a party or to the court,” which, he contended, his did not. Id. at 575–76, 136 A.3d at 406 (internal citations omitted). Of importance to the instant case, we held that the hearing judge appropriately exercised her discretion in imposing the discovery sanctions against Kent.

Not only did we emphasize that Kent’s discovery responses were either incomplete or untimely and that his reason for not responding was “incredible,” but also that Bar Counsel had been prejudiced by the delay; we also noted that Kent’s violations persisted throughout the proceedings, demonstrating a lack of good faith in attempting to remedy any issues regarding discovery before they came due or otherwise productively cooperating with the discovery process. In so doing, we affirmed not only the sanction of the admission of all averments in the petition in accordance with Attorney Grievance Commission v. Steinberg, 395 Md. 337 , 910 A.2d 429 (2006), Attorney Grievance Comm’n v. O’Leary, 433 Md. 2 , 69 A.3d 1121 (2013), Attorney Grievance Commission v. Thomas, 440 Md. 523 , 103 A.3d 629 (2014), for example, but also, for the first time, precluded an attorney from offering mitigation, which also is the import of having precluded experts in the instant matter. 28 Initially, we note that with respect to the deemed admissions in the instant matter, Rheinstein’s discovery violations are more egregious than Kent’s. Rheinstein provided responses to Bar Counsel’s interrogatories and requests for production nearly 37 months after they had been served upon him and nearly 22 months after discovery had become due, as established by Judge Harris in June of 2017, and merely 26 days prior to the hearing scheduled by Judge Klavans. Judge Klavans found Respondent’s untimely response to be “too little and much too late,” noting that: Respondent’s counsel’s email to Bar Counsel attempting to informally provide possible witness names, including an expert witness, for the first time on June 6, 2019, a mere 26 days prior to the scheduled hearing, more than three years after discovery was propounded and clearly after the deadline in August 2017, was the very first glimmer of compliance with the discovery rules.

It was too little and much too late. Respondent’s willful and deliberate course of conduct to subvert the discovery process is also clearly demonstrated from the styling of Respondent’s eleventh-hour formal responses to discover requests: “Respondent’s Answers to Petitioner’s Renewed First Set of Interrogatories” (emphasis added), and “Respondent’s Response to Petitioner’s Renewed First Request for Production of Documents, Electronically-Stored Information and Property” (emphasis added), which were served upon Petitioner on June 13, 2019, 19 days before the scheduled hearing. Petitioner’s discovery requests were not renewed. To the contrary, they had been propounded on April 22, 2016.

(italics and emboldening in original). Judge Klavans also found Rheinstein’s reason for the violation—his contention that removing it to federal court negated discovery obligations in state court—lacked any basis in the law. He further noted that Respondent’s 99-page Answer and 12,000-page “document dump” served on Bar Counsel in the summer of 2017 did little to provide Bar Counsel with “adequate notice of defenses, potential witnesses and documents,” and put 29 the burden on Petitioner to answer her own interrogatories and requests for production. Judge Klavans additionally found that Bar Counsel was “greatly prejudiced” by Respondent’s discovery failures, which, if left unchecked, would have operated to reward Respondent for “his willful and deliberate conduct in avoiding discovery.” Neither a postponement nor continuance, as Judge Klavans found, could remedy the prejudice both Bar Counsel and the court faced.

As a result, deeming the averments admitted was within Judge Klavans’ discretion.17 Judge Klavans also precluded the presentation of experts because of Rheinstein’s discovery violations. A few weeks before the hearing scheduled by Judge Klavans was to take place, at which the parties would present arguments about Bar Counsel’s Proposed Findings of Fact and Conclusions of Law, counsel for Rheinstein, in a motion opposing the 17 Rheinstein argues that some of the averments in the Petition were conclusory (i.e., “frivolous”) and, thus, were unable to be admitted. Certainly, in Attorney Grievance Commission v. Kent, we deemed admitted conclusory statements that included words such as “knowingly” and “intentionally,” 447 Md. 555, 565 , 136 A.3d 395 , 400 (2016), and “incompetently” in Attorney Grievance Commission v. Thomas, 440 Md. 523, 532 , 103 A.3d 629, 634 (2014). It may not be appropriate in many cases to sanction a party who has committed a discovery violation by deeming that party to have admitted the ultimate issue in the case and essentially defaulted the case.

Nevertheless, in the context of this case, Rheinstein fails to articulate why summary statements, that “[e]xpress[] a factual inference without stating the underlying facts on which the inferences is based,” Conclusory, Black’s Law Dictionary (11th Ed. 2019), should be treated differently than other factual averments admitted as a result of a discovery sanction. He erroneously relies on Attorney Grievance Commission v. Dyer, 453 Md. 585 , 162 A.3d 970 (2017), a case in which no discovery sanctions had been imposed and the hearing judge found, after conducting a full-blown evidentiary hearing, that particular filings made by the respondent in the underlying litigation subject of his alleged misconduct had not been frivolous as alleged by Bar Counsel; Dyer is inapposite. 30 court’s discovery sanctions, proffered, for the first time, that had he been permitted to present evidence, he would have called Dr. Richard Ratner, a psychiatrist and expert witness, to testify that Rheinstein’s diagnosis of attention deficit hyperactivity disorder (“ADHD”) contributed to the alleged misconduct such that it should be treated as a mitigating factor. With respect to the preclusion of expert testimony as a sanction for discovery violations, we look to Rodriguez v. Clarke, 400 Md. 39 , 926 A.2d 736 (2007), a medical malpractice case. In Rodriguez, the Clarkes had failed to arrange for depositions of their expert witnesses, even up to two weeks before trial.

The trial judge had granted the defendants’ motion for summary judgment, because of the Clarkes’ failure to produce an expert. We approved of the preclusion of expert witnesses on behalf of the Clarkes, based upon their failure to properly identify their expert witnesses in their preliminary expert designation, their cross-refences to those inadequate expert designations in each of their answers to interrogatories and their “continuous failure to cooperate with [the defendants’] repeated request for dates of depositions of their experts, especially out-of-state witnesses.” Id. at 68 , 926 A.2d at 753 . We emphasized that the Clarkes’ action “evidenced a complete lack of good faith in providing access to the discoverable information” which “continu[ed] as it did so close to the scheduled trial date[.]” Id. (alterations added) We found no abuse of discretion in “the trial court’s decision to preclude all of the Clarkes’ expert witness testimony as a sanction for failure to comply with discovery[.]” Id.

(alteration added). 31 Just as in Rodriguez, Judge Klavans also appropriately acted within his discretion in precluding Rheinstein from offering expert testimony, as a sanction for his discovery violations. It is also important to note that Rheinstein did not proffer a deposition of an expert as to the impact of his ADHD until late June of 2019.18 Rheinstein’s medical expert in psychiatry, Dr. Richard A. Ratner, also was only offered to opine on the effect of ADHD on Rheinstein’s impulsivity, which, as we shall see does not form a basis for his Rule 8.4 violations infra.19 18 Rheinstein first made mention of a medical expert in his Answers to Petitioner’s Renewed First Set of Interrogatories, filed on June 12, 2019, stating that he was “endeavoring to locate a mental health expert to opine on Respondent’s attention deficit hyperactivity disorder (“ADHD”) disability and why it was the root cause of certain matters at issue in the [Petition], including the communications characterized as “Respondent’s Continued Threats and Abusive Behavior.” In Respondent’s Motion for a 60-Day Continuance of the Trial Scheduled to Begin July 1, 2019, filed on June 24, 2019, Respondent first identified Dr. Richard A. Ratner as an expert who “can provide probative evidence to the Court concerning the medical condition” and “can provide a report promptly, but Respondent recognizes that discovery regarding Dr. Ratner may be warranted upon preparation of this report.” On July 3, 2019, Respondent filed a Motion to Reconsider this Court’s Order of June 27, 2019 or Alternatively Motion to Alter or Amend Judgment, or Alternatively, Motion to Vacate Default Judgment and Request for Hearing, which proffered that Rheinstein “suffers from ADHD, which caused him to struggle with deadlines and require additional time to complete routine tasks.” As an exhibit to the July 3, 2019 motion, Respondent attached a letter from Dr. Ratner, a psychiatrist who purportedly would have been called as an expert witness at the evidentiary hearing had one taken place, to counsel for Respondent detailing the results of a psychiatric evaluation he performed of Respondent. 19 In Dr. Ratner’s letter to counsel for Respondent, he stated that he had conducted the evaluation “to determine whether there was a mental health condition that contributed to the behavior in question and whether, if so, he is or is not mentally competent to continue (continued . . .) 32 (continued . . .) practicing law.” Dr. Ratner had examined Respondent “for a total of four hours.” During that time, he “administered a standard checklist for ADHD symptoms, on which he scored well into the range of ADHD sufferers.” Dr. Ratner opined as to the effects Rheinstein’s diagnosis of ADHD had on his conduct as an attorney: In terms of whether Mr. Rheinstein suffers from a mental disease or disorder, I find myself concurring with all the specialists who have treated him since elementary school that he indeed suffers from Attention Deficit Hyperactivity Disorder (ADHD), of the Inattentive and Impulsive Type. His history is replete with evidence of this condition and its treatment. I also feel that he displays certain elements of Obsessive Compulsive Personality, though I do not believe he meets full criteria for the Disorder.

It appears that he is extremely devoted to work and productivity, sometimes to the exclusion of other activities, and strives for control in a way that can be perfectionist and overly inflexible about, for example, morality and values. I do not feel that Mr. Rheinstein is in any way impaired cognitively, including his understanding of the law. He is in fact a very bright individual, and as is sometimes the case with very bright individuals, they find ways to get around or compensate for the inherent difficulties of coping with an attentional diagnosis, sometimes throughout most of their lives. Often a time arises, however, which might be a result of new interpersonal or occupational challenges, when the usual coping mechanisms may fail to contain elements of the underlying disorder, with the result that one may experience behavioral or emotional dysfunction.

Thus I agree that in the parlance you used, Mr. Rheinstein’s mental difficulties were a root cause of the behavior that got him into trouble. The combination of his hyper focused tendencies, his loss of perspective regarding the inappropriate nature of his behavior, with the obsessional, inflexible and perfectionistic pursuit of being a whistleblower came together in his involvement with this case. Adding to this, he had, in fact, done very little litigation and he recalled that the prospect of litigating the Moore case caused him constant anxiety. This likely was part of the reason for his attempts to push for settlement of the case.

However, after these several years of being involved in this grievance (continued . . .) 33 (continued . . .) procedure and taking counsel from you, it is also clear that Mr. Rheinstein has gained insight into his past behavior and more clearly recognizes it for what it was. He has made this clear to me during our interview. He also recognizes that for him to be practicing solo could present stresses similar to what this litigation unleashed. For that reason, he is planning to search for a salaried job, possibly in law-related but not necessarily typical law firms.

He also agreed with my suggestion that he should resume mental health therapy. This would include psychotherapy and at least a consultation regarding medication, in order to prevent such a series of events from occurring in the future. Treatment would not be required for him to practice law as such but will be helpful in occasional circumstances when his issues would benefit from discussion and perspective. In summary, I do not think that Mr. Rheinstein is in any way incompetent psychologically or cognitively to practice law.

As to whether a period of being suspended would be of any value to him or the Bar, I do not think so in either case. The education, so to speak, that he received in the last several years regarding his behavior in 2011-2012, has, in my view, achieved the objectives of gaining him insight and causing adequate reflection on his past behavior. He has no current intention of re-entering the world of litigation and plans to take a position where he will be able to benefit from the external structure of the institution where he will be practicing. He agrees that further mental health counseling, with or without medication, would be beneficial for him and intends to pursue this plan.

Further, at the July 10, 2019 hearing on Petitioner’s Motion for Sanctions and/or Motion In Limine and Petitioner’s Proposed Findings of Fact and Conclusions of Law, counsel for Respondent made several remarks regarding Rheinstein’s ADHD and its purported nexus to the alleged rule violations and his failure to comply with Judge Harris’s discovery schedule: [COUNSEL FOR RESPONDENT]: [A]nd there is no doubt that his ADHD affected him. It’s why he has trouble with deadlines. It’s why his pleadings (continued . . .) 34 (continued . . .) are so long and Ms. Lawless knew this before I even got into the case. *** [COUNSEL FOR RESPONDENT]: So this is a technical not a substantial violation in the grand scheme. The timing of the disclosures, July of 2017.

The reason. Two, number one, I don’t agree that there’s been a violation and I’ll get into that a little bit, but the second, he is obviously affected by his ADHD. *** [COUNSEL FOR RESPONDENT]: [A]nd he suffers from ADHD which causes him to struggle with deadlines, requires time to complete additional tasks, and is the root cause of much of what he does. *** [COUNSEL FOR RESPONDENT]: But I think, again, that’s - - I think it’s something where it would have benefited the Court to hear . . . from Mr. Ratner who is the mental health expert in this case whose going to testify[] about the ADHD suffered by Mr. Rheinstein and the reason why it’s the root cause of all of the claims that are at issue in this case. I think it would have benefitted the Court to hear from both of those experts. *** [COUNSEL FOR RESPONDENT]: He has a good faith basis to believe that there is a fraud scheme because there was one and he’s riled up, especially when you consider the fact that he suffers from the ADHD. *** [COUNSEL FOR RESPONDENT]: Now, the third mitigating factor is personal or emotional problems. Yes, absolutely.

We know that he has a serious medical condition. There’s another element, of course, Your Honor, about whether the Respondent has a physical or mental disability or impairment. Yes, absolutely. He suffers from ADHD.

We had Dr. Ratner examine him. We were going to have Dr. Ratner come at trial. We’re, unfortunately, not able to do that, but that doesn’t change the fact that he suffers from a very significant medical condition that is relevant to this case, the root cause of some - - of these issues, of the claims in this case, is this condition which impacts his impulse control. It explains why he lacks the impulse control not to send that crazy email that I saw.

That’s why. It’s hugely important. *** [COUNSEL FOR RESPONDENT]: You may not think - - you know, the Petitioner may not think it’s good litigation, but Mr. Rheinstein litigated (continued . . .) 35 Rheinstein, however, contends, before us, as he did in the hearing, that he had no duty to respond to Bar Counsel’s interrogatories and requests for production because his duty to disclose was “nullified” when he removed the matter to the federal court. Respondent, relying on unreported federal district court opinions in MarcParc Valet, Inc. v. Jasser, No. PWG-13-3743, 2014 WL 1334211 (D. Md. Apr. 1, 2014); Steen v. Garrett, No. 2:12-cv-1662-DCN, 2013 WL 1826451 (D. S.C. Apr. 30, 2013); and Sterling Savings Bank v. Federal Insurance Company, No. CV-12-0368-LRS, 2012 WL 3143909 (E.D. Wash. Aug. 1, 2012), contends that “pre-removal discovery requests, which have not yet become due, are nullified upon removal from the state court to federal court.”20 (continued . . .) those cases and he got results.

Okay. So when you take all of those things together along with the fact that, you know, the mental health condition, the ADHD is the root cause of these things, I mean, that is powerful mitigating evidence, Your Honor. Very powerful. When asked at oral argument before this Court as to whether there is a nexus between ADHD and the underlying conduct which resulted in the rule violation allegations, counsel for Respondent responded: Yes. . . . [W]hat [Dr. Ratner] was going to say and he reviewed the [Petition] and met with my client on several occasions and what he says is that these circumstances where he does things late, where he acts impulsively, where he files too many things, those attributes are what happens to somebody who has this type of mental impairment.

And it doesn’t mean that he can’t drive a car or go do things. It means that he should be on medication. He should be tempered. That’s what we’ve conceded here from the beginning and that’s the argument that we wanted to present. 20 Respondent also cites Brewster v. Woodhaven Building & Development, Inc., 360 Md. 602 , 759 A.2d 738 (2000) and Swarey v. Stephenson, 222 Md. App. 65 , 112 A.3d 534 (2015), to argue that because Bar Counsel’s original discovery requests from 2016 had not (continued . . .) 36 Respondent contends that the majority of federal courts faced with this issue have found that discovery requests “served in a state case need not be answered once the case is removed to federal court, if the deadline to answer those requests did not lapse before removal.” MarParc Valet, Inc., No. PWG-13-3743, 2014 WL 1334211 , at ³ (quoting Steen, No. 2:12-cv-1662-DCN, 2013 WL 1826451 , at ²).

Rheinstein, though, is incorrect in his interpretation as to the effect of removal on discovery requests propounded in state court upon remand; Judge Paul Grimm, the author of the quote in issue, was opining only about the lack of necessity to answer state discovery requests in federal court once the case was removed and not remanded. Judge Grimm, writing for the United States District Court for the District of Maryland, explained that state civil procedure and federal civil procedure differ, such that state norms do not persist in federal court: I cannot ignore the fact that discovery proceeds differently in federal court than in state court. Unlike in state court, where discovery requests can be made simultaneously with service of the complaint and summons, see Md. R. 2-401, 2-424(b), discovery cannot commence in this Court until the parties have held a Rule 26(f) conference, see Fed. R. Civ. P. 26(d)(1).

MarParc Valet, Inc., No. PWG-13-3743, 2014 WL 1334211 , at ³. Respondent, however, would have this case “nullify” his discovery obligations in the state court upon remand. The federal court cannot “nullify” state discovery requests (continued . . .) yet become due prior to the first removal, Bar Counsel was required to propound them again upon the first remand in order to take effect. These cases do not support such a proposition. 37 which retain viability upon remand.

As a result, Rheinstein’s defense to discovery violations fails; we conclude that Judge Klavans did not abuse his discretion in imposing the sanctions for discovery violations. FINDINGS OF FACT The Findings of Fact that Judge Klavans made were based upon the Petition’s averments which have been deemed admitted. With regard to the background of the underlying litigation, Judge Klavans found: Imagine Capital, Inc. (“Imagine”) is a private lender which finances residential rehabilitation projects in Maryland. Imagine’s two officers are Robert Svehlak and Neil Roseman.

In September 2008, Charles and Felicia Moore, husband and wife, entered into a construction loan agreement for $200,000 with Imagine. The “Loan Commitment Letter” identified Mr. Moore as the borrower and the Moores as guarantors. It stated that the total amount is anticipated to be distributed in 8 construction draws. Mr. Moore, a seasoned real estate investor, pledged four Baltimore City properties as collateral for the loan.

After $67,419.92 was disbursed to Mr. Moore, he defaulted on the monthly interest payments. In June 2009, Imagine, through its then-attorney, James Holderness, Esquire, filed a complaint for confessed judgment. [] On June 12, 2009, the Circuit Court entered judgment against the Moores in the amount of $113,683.76 []. The Moores did not retain counsel or otherwise take any action during the 30 days allotted by the Maryland Rules to vacate the confessed judgments. In September 2009, Imagine and Mr. Moore reached an agreement whereby Mr. Moore conveyed one of the collateral properties to Boomerang Properties, LLC, an entity controlled by Mr. Svehlak, at an agreed value of $65,000 and signed a promissory note for $20,000.

When Mr. Moore defaulted on the agreement, the original note terms resumed and Imagine sought to collect the full amount due less the $65,000 value of the conveyed property. In November 2010, Imagine began collection efforts. On November 17, 2010, Mr. Moore, pro se, filed a motion to open or vacate the confessed judgment, which the court denied on February 18, 2011. On March 24, 2011, Imagine filed a request for garnishment of property claiming the Moores still owed $157,578.74.

On April 13, 2011, Mr. Moore filed a second motion to vacate judgment, which the court denied. 38 At that point, the Moores retained Respondent to represent them in challenging the confessed judgments: On October 18, 2011, more than two years after the confessed judgments were entered, the Respondent entered his appearance on behalf of the Moores[.] He filed a motion styled “Motion to Open, Modify, or Vacate Confessed Judgments, or in the Alternative, Motion for Order of Satisfaction; and Motion to Open, Modify, or Vacate Orders of Garnishment; and Motion to Enjoin Further Debt Collection Proceedings,” along with a memorandum in support thereof alleging the judgments were obtained by the perpetration of a fraud and, pursuant to Maryland Rule 2-535(b), should be vacated. On October 31, 2011, Imagine, through counsel Jeffrey Tapper, Esq., filed an opposition. A hearing was scheduled for December 7, 2011. Respondent then, in November, filed a complaint with the Attorney Grievance Commission against Mr. Tapper.

Shortly thereafter, Mr. Tapper withdrew from representation of Imagine, based upon the grievance complaint. Imagine then retained new counsel, Mr. Troy Swanson. A hearing was held on Respondent’s motion on December 7 and 8, 2011, before Judge Emanuel Brown of the Circuit Court for Baltimore City. During the hearing, according to the Findings of Fact, Respondent “interjected irrelevant and unsubstantiated accusations against Imagine and its members regarding an elaborate fraud scheme.” He also “leered at Mr. Svehlak during the proceeding and led the court to believe that Imagine and its officers were under investigation by the Department of Justice.” At the conclusion of the hearing, the court vacated the confessed judgments.

Imagine then, according to the Findings of Fact, retained new counsel to pursue an appeal of the circuit court’s decision; Respondent threatened to file attorney grievances against their attorneys: In December 2011, Imagine retained the law firm of Bowie & Jensen and Matthew Hjortsberg, Esquire, to file an appeal and defend various 39 threatened claims made against it by the Respondent. On January 3, 2012, Imagine filed a Notice of Appeal to the Court of Special Appeals. On January 25, 2012, Respondent began a series of email correspondence with Mr. Hjortsberg in which he threatened to sue Bowie & Jensen and report Mr. Hjortsberg and his associate, Lisa D. Sparks, Esquire, to the Attorney Grievance Commission if the appeal was not dropped. Respondent, however, never filed a complaint against either attorney with the Attorney Grievance Commission.

Judge Klavans, in his Findings of Fact, then provided excerpts from Respondent’s email correspondence with Mr. Hjortsberg, in which Respondent launched an “ad hominem attack on Mr. Svehlak’s character” and accused Mr. Hjortsberg and members of his firm of facilitating the fraud he argued Imagine had committed: We are going to proceed with the letter to the Maryland Attorney Grievance Commission at this time to simply advise of this case and our concerns over the ethical issues surrounding possible attempts to reinstate this debt based upon the testimony and the facts in this case. *** Because I believe the transcript and an audit of your client’s bank records would support this notion, I believe this is not only unethical, but that you are sufficiently aware of the background facts that you, Ms. Sparks and Bowie & Jensen can be sued for