31 A.3d 512 (Md. 2011), Misc. AG 51-2007, Attorney Grievance Com'n of Maryland v. Paul

Docket NºMisc. AG 51-2007.
Citation31 A.3d 512, 423 Md. 268
Opinion JudgeBELL, C.J.
Party NameATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Dana Andrew PAUL.
AttorneyMarianne J. Lee, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner. Robert H.B. Cawood, Esquire of Mason, Cawood & Hobbs, P.A., Annapolis, for respondent.
Judge PanelArgued before BELL, C.J., HARRELL, BATTAGLIA, [*]MURPHY, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ. BATTAGLIA, ADKINS and BARBERA dissent. Dissenting Opinion by ADKINS, J., which BATTAGLIA and BARBERA, JJ., join. Judge BATTAGLIA and Judge BARBERA authorize me to state...
Case DateOctober 31, 2011
CourtCourt of Appeals of Maryland

Page 512

31 A.3d 512 (Md. 2011)

423 Md. 268

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.

Dana Andrew PAUL.

Misc. AG No. 51-2007.

Court of Appeals of Maryland.

October 31, 2011

Page 513

[Copyrighted Material Omitted]

Page 514

Marianne J. Lee, Asst. Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland), for petitioner.

Robert H.B. Cawood, Esquire of Mason, Cawood & Hobbs, P.A., Annapolis, for respondent.

Argued before BELL, C.J., HARRELL, BATTAGLIA, [*]MURPHY, ADKINS, BARBERA and JOHN C. ELDRIDGE (Retired, specially assigned), JJ.

BELL, C.J.

[423 Md. 271] The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,1 filed a Petition For Disciplinary Action against Dana Andrew Paul, the respondent. The petition charged that the respondent violated Rules 3.3, Candor Toward the Tribunal 2 and 8.4, Misconduct,3 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812, and Maryland Code (2002) § 8-606, " Making false entries in public record and related crimes," of the Criminal Law Article.4

Page 515

[423 Md. 272] We referred the case, pursuant to Rules 16-752(a),5 to the Honorable Philip T. Caroom, of the Circuit Court for Anne Arundel County, for hearing pursuant to Rule 16-757(c).6 Following the hearing, at which the petitioner and the respondent presented evidence and the respondent testified, Judge Caroom found facts by the clear and convincing standard, see Md. Rule 16-757(b),7 from which he then drew conclusions of law.

[423 Md. 273] This disciplinary action had its genesis in litigation between divorced parties to resolve a dispute arising out of the sale of their former marital home. The respondent became involved in the litigation when McNamee, Hosea, Jernigan and Kim, the law firm at which the respondent then was an associate, was retained by a title insurance company to represent and protect the interests of the purchasers of that property, and he was assigned the representation. The litigation, which named, as defendants, his former wife, the purchasers and others, was initiated on behalf of the former husband by the complainant, Laura Penn Shanley, an attorney with whom the respondent had some history. He was, during law school, a law clerk at a law firm where Ms. Shanley was a young associate and " their relations were not good." 8 Maintaining that, because the sale had been completed before suit was filed and, in any event, Ms. Shanley's client " previously had executed a quit claim deed in favor of [his ex-wife, the seller]," there was no basis for naming his clients in the litigation or the accompanying Notice of Lis Pendens, the respondent filed a motion to dismiss both. After speaking with the respondent, reviewing a copy of the contract of sale that the respondent provided at her request and discussing the matter with her client, Ms. Shanley " agreed to dismiss [the respondent's clients] from the law suit." She faxed the respondent, accepting his offer to draft the stipulation of dismissal of the complaint as to the respondent's clients. More particularly, she advised him " to dismiss all claims against all parties except Ms. Lee (Valentin) [, her client's former wife and the seller of the property,] and to terminate the lis pendens. " The respondent, in response, prepared, as to his clients only, a " Stipulation

Page 516

of Dismissal" and a " Notice of Termination of Lis Pendens, " which he faxed to Ms. Shanley [423 Md. 274] and the seller's counsel. Ms. Shanley modified the respondent's draft of the stipulation of dismissal, which she signed and, pointing out that she had modified, and how, his version, returned with the Notice of Termination of Lis Pendens. Her draft included in the title of the paper, in addition to the respondent's clients, all of the parties named in the complaint, " including other parties who had been served but who had not yet answered," who also were included in the certificate of service. " Visually, the two versions of the Stipulation of Dismissal were quite distinct. Respondent's was one page, other than its certificate of service, with the title, ‘ Stipulation of Dismissal’ being only three words on a short single line; Shanley's had a four line title including 34 words and consisted of three pages including a certificate of service."

The respondent filed his version of the Stipulation of Dismissal and Notice of Termination of Lis Pendens, cutting Ms. Shanley's signatures from the documents she signed and, using a photocopy machine, pasting them on a redline version of the ones he had prepared. " He testified that he looked at Shanley's fax of her draft of the stipulation and notice of termination ‘ not realizing’ that these were any different from what he had faxed to Shanley." Ms. Shanley was named in the " normal certificate of service" and, so, received a copy of what the respondent filed.

Although, as the parties stipulated, the respondent's clients were not actually prejudiced and, therefore, there was no need to correct the dismissal that the respondent filed, Ms. Shanley was upset that the respondent, without her permission, " file[d] his version of the ‘ Stipulation of Dismissal,’ artificially attaching [her] signature to it." She believed her version was preferable because it " simultaneously eliminate[d] all improper parties" and " avoid[ed] the possibility of confusion in the clerk's office." Ms. Shanley took her upset and displeasure to the respondent's supervising attorney, who, after a conference call, notable for the difficulties in communication occasioned by the arguments between the respondent and Ms. Shanley, decided to, and did, " take over" the representation of the [423 Md. 275] firm's clients, removing the respondent from the case. The respondent was terminated shortly thereafter.

The hearing court also addressed the " disputed allegations and circumstantial inferences which relate to this matter." Those matters implicated the credibility of the respondent and the complainant. Thus, it found that the respondent " intentionally ... scissor and taped Shanley's signature onto a paper which she had not authorized and approved pursuant to Rule 1-311(b)." 9 In so finding, it rejected the respondent's pre-petition assertions that he " had authority" to file the altered documents and his testimony that this was an innocent mistake, caused by his " thinking that Shanley's draft of the Stipulation of dismissal was identical to his own."

With regard to the former, the respondent told his supervising attorney, that he had left Ms. Shanley a voice mail message informing her that " ‘ if he did not hear from her within 2 days, he would file the altered documents.’ " The hearing court

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found the evidence to the contrary to be more persuasive. It observed:

" In fact, Respondent's then-assistant, Ms. Jarboe testified that he had instructed her to mail the documents for filing immediately— without waiting for any response. Further, Shanley credibly testified that she never received any such voice mail from Respondent. In support of her testimony, the court received Shanley's meticulous phone records from the dates in question. (See exhibit 1, pages 23-30, reflecting a number of phone messages and calls about this incident, but not the phone message which Respondent unpersuasively testified he had left)."

The hearing court also found it significant that the respondent, during the conference call between Ms. Shanley, the respondent [423 Md. 276] and the supervising attorney, berated Ms. Shanley, telling her, " It was not our job to correct your mistakes and we're not going to file a stipulation for the rest of your defendants and we're not going to pay for the filing fee." For this finding, the court again credited Ms. Shanley's, rather than the respondent's, testimony.

As to the latter,

" [The respondent] suggested that he did the cutting and taping without having read any of Shanley's documents and without having noticed the differences. He stated that his sole purpose in doing this was to satisfy the McNamee firm's custom of filing ‘ everything’ on redline stationery. He also said he did this because he was aware that ‘ some judges, such as Judge Dudley whom [he] had clerked for’ will reject faxed or photocopied signatures. He suggested that his intention was to ‘ make the document an original’ by signing his side of the page."

Stating its belief that " no reasonable attorney could avoid noticing the differences between Shanley's draft and Respondent's draft," the hearing court did not find the respondent's testimony on the point credible.10 It noted, in that regard, " if Respondent had failed to notice the difference between Shanley's document and his own, there would have been no genuine reason to make any alteration at all— he could simply have signed and filed Shanley's draft." This finding is reflective of [423 Md. 277] the court's view of the respondent's other explanation, that the cutting and pasting was necessary to comply with firm policy as to filing papers, that they be on the firm's redline paper. Observing that the original draft sent to Ms. Shanley was not prepared on redline paper and emphasizing that the supervising attorney indicated that the policy was " ‘ generally to file everything on redline paper," the court found this explanation " incredible as well." It concluded:

" The court infers based on the clear and convincing evidence, that Respondent's reason for altering the stipulation of dismissal

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and filing it in the manner he did was his frustration and impatience with Shanley due to her potentially causing him extra work when he already had offered her the favor of preparing a dismissal."

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