Attorney Grievance v. Siskind

• Citation: 930 A.2d 328,401 Md. 41
• Decision Date: 24 August 2007
• Docket Number: Misc. Docket AG No. 22 September Term, 2006.
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. William L. SISKIND.
• Court: Court of Special Appeals of Maryland

930 A.2d 328

401 Md. 41

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. William L. SISKIND.

Misc. Docket AG No. 22 September Term, 2006.

Court of Appeals of Maryland.

August 24, 2007.

Raymond A. Hein, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel for Atty. Grievance Com'n of Maryland), for Petitioner.

Arnold M. Weiner (Norman L. Smith of Fisher & Winner), Baltimore, MD, for Respondent.

Argued Before BELL, C.J., RAKER, CATHELL,^* HARRELL, BATTAGLIA, GREENE and ALAN M. WILNER (Retired, specially assigned), JJ.

HARRELL, Judge.

The Attorney Grievance Commission ("Petitioner"), acting through Bar Counsel, filed with this Court a Petition for Disciplinary or Remedial Action (the "Petition") against William L. Siskind ("Respondent"), alleging violations of the Maryland Rules of Professional Conduct ("MRPC") in connection with his transactions involving a business associate named Frank Zokaites. Respondent is charged with violations of MRPC 1.4 (Communication),¹ 1.7 (Conflict of Interest: General Rule),² 1.8 (Conflict of Interest: Prohibited Transactions),³ 1.9 (Conflict of Interest: Former Client),⁴ 1.15 (Safekeeping of Property),⁵ 8.1 (Bar Admissions and Disciplinary Matters),⁶ and 8.4(c) (Misconduct).⁷ The case was referred to the Honorable Barry G. Williams of the Circuit Court for Baltimore City to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law.

At the hearing before Judge Williams on 23 January 2007, Petitioner abandoned all of the violation allegations contained in the Petition save those of MRPC 1.9 and 8.4(c). On 8 March 2007, Judge Williams, in his written findings and conclusions, concluded that Respondent violated MRPC 1.9 and 8.4(c).

I. The Hearing Judge's Findings of Fact and Conclusions of Law

Judge Williams rendered the following facts and conclusions of law, purporting to be based on clear and convincing evidence.

A. Respondent's Former Representation of 101 Charles, LLC (MRPC 1.9)

On 15 February 2004, Respondent filed a complaint in the Circuit Court for Baltimore City "individually and as attorney for Transamerican Commercial, Ltd.," ("TCL"), against 101 Charles, LLC ("101 Charles") and Zokaites, seeking to enforce the terms of a contract executed on 15 September 2004 which conveyed ownership of 101 Charles from TCL to Zokaites. The entity, 101 Charles, was formed in July 2002 for the purpose of renovating and marketing an office building in downtown Baltimore known as the Jefferson Building.⁸

Despite his protestations to the contrary, Respondent formerly represented 101 Charles as its attorney from the entity's inception in July 2002 until 15 September 2004. In addition to serving as 101 Charles's general counsel, Respondent performed significant legal work on behalf of 101 Charles. In July 2002, Respondent entered into a Purchase Agreement and Addendum with Zokaites to transfer the Jefferson Building from Respondent to the newly formed 101 Charles. That Purchase Agreement indicated that "[Respondent] will provide an attorney's letter of title to Zokaites and [101 Charles]. [Respondent] will not charge Zokaites or [101 Charles] any fees for legal work performed in connection with the Property and this Agreement." (emphasis added). Further, Respondent prepared a deed conveying the Jefferson Building from TCL to 101 Charles.

Because Respondent formerly represented 101 Charles, the hearing judge determined that Respondent violated MRPC 1.9 when he initiated the contract suit on 15 February 2005 against his former client. The lawsuit he filed on behalf of TCL and himself involved the same or a substantially related matter to the 15 September 2004 transference of TCL's member shares in 101 Charles to Zokaites because the suit sought to enforce the terms of the contract effectuating the transfer. According to the hearing judge, because Respondent indirectly owned and controlled 50% of 101 Charles through his ownership of TCL, he "necessarily had confidential information regarding 101 Charles." Further, there existed a substantial risk that Respondent disclosed and used confidential information in filing suit against his former client, 101 Charles. Finally, TCL's and Respondent's pecuniary interests were materially adverse to those of 101 Charles because, if the Respondent's lawsuit was successful, his former client could have been required to pay over $300,000 in damages to Respondent and TCL.

B. Zokaites's Loan to TCL (MRPC 8.4(c))

In March 2002, Zokaites loaned $151,550.00 to Respondent to enable Respondent to satisfy an architect's lien on a New Mexico investment property known as La Mesa Race Track, which is owned partially by Respondent. The Collateral Agreement for the March 2002 loan stated, "Zokaites has agreed to lend the total sum of $151,550.00 to [Respondent] in accordance with the terms of a Note entered into by [Respondent]." (emphasis added). The Collateral Agreement made two other references to Respondent as a party to, and recipient of, the loan. Respondent understood fully the Collateral Agreement. Contradicting the Collateral Agreement, however, was a Promissory Note dated 20 March 2002 indicating that the borrower of the $151,550.00 was TCL. The Promissory Note was drafted and signed by Respondent on behalf of TCL. Further, a mortgage, dated 4 April 2002, refers to the $151,550.00 loan, stating that TCL is the mortgagor. The mortgage was drafted and signed by Respondent on behalf of TCL.

Respondent, when drafting and signing legal documents, generally uses his name and TCL interchangeably. Thus, it was not a mistake or oversight when Respondent used his own name as the borrower in the Collateral Agreement. Another example of this synonymous use was found in the Purchase Agreement, dated 9 July 2002, of the Jefferson Building in Baltimore. In the Purchase Agreement, Respondent described himself as the owner of the Jefferson Building, but the deed later conveying the building to 101 Charles listed TCL as the owner. The deed was signed by Respondent on behalf of TCL. At other times, however, Respondent was more precise in using his name or that of TCL. For example, Respondent, in drafting the Addendum to the Purchase Agreement, appeared to appreciate the legal ramifications of using his name at certain points and that of TCL at others.

Furthermore, Respondent made inconsistent statements about the identity of the loan recipient regarding the New Mexico property. In a 20 May 2005 letter to Bar Counsel, Respondent stated, "I negotiated with Zokaites" and "I secured the loan by a promissory note signed by me, individually. As a bonus for lending me the money I promised Zokaites a 2% interest in my 50% interest either in the sale of La Mesa Track, or the same interest in the net income produced by the track if my partner of 50% and I developed it." (emphasis added). In a letter to Bar Counsel several months later, however, Respondent characterized the same transaction as a loan to La Mesa, LLC. In that same letter, Respondent indicated that $126,500.00 of the loan was deposited into a bank account controlled by Respondent at Carrollton Bank and, further, that some $13,668.51 not used to pay off the lien on the race track and satisfy legal fees, "per agreement of Mr. Zokaites, was to be used as [Respondent] saw fit." (emphasis added).

Accordingly, Respondent personally borrowed money from Zokaites. In a 5 April 2004 deposition of him taken in the course of his personal bankruptcy case, however, Respondent stated, "I have not personally borrowed any money from Mr. Zokaites." In responses to discovery in the present disciplinary matter, Respondent indicated that his sworn answers at the deposition in the bankruptcy matter were not accurate or true. Contrary to his assertions that he was mistaken at the deposition, Respondent knowingly testified falsely under oath when he stated that he never personally borrowed money from Zokaites. This knowingly false testimony violates MRPC 8.4(c) according to Attorney Grievance Commission v. White, 354 Md. 346, 367, 731 A.2d 447, 459 (1999).

C. Respondent's Assertion that Zokaites was his Client (MRPC 8.4(c))

At the 5 April 2004 deposition in his personal bankruptcy case, Respondent answered a question seeking the identification of Zokaites by replying, "He is a client of mine and my son's, and I have some business with him." Respondent thereafter in the deposition invoked attorney-client privilege as the basis for refusing to answer inquiries whether Zokaites loaned him money.

Although Respondent was aware that his deposition testimony was under oath, he now asserts that his testimony was incorrect and the result of confusion related to his advanced age. This explanation was found unsatisfactory and incredible by Judge Williams in light of the fact that, during the hearing on the Petition, Respondent was otherwise able to provide detailed and thorough descriptions of the complex business transactions he structured with Zokaites and others. Respondent's excuse is also undermined by the complicated legal and business documents drafted and/or signed by him. Therefore, Respondent failed to prove his defense of mistake by a preponderance of the evidence. It is undisputed that Respondent never served as Zokaites's attorney. Thus, Respondent knowingly testified falsely under oath in violation of MRPC 8.4(c) when he indicated that he was Zokaites's attorney.

II. Standard of Review

The standard of review for attorney disciplinary matters is succinctly summarized in Attorney Grievance Commission v. Zdravkovich, 375 Md. 110, 825 A.2d 418 (2003):

This Court exercises "`original and complete jurisdiction for attorney disciplinary proceedings in Maryland,' and conducts `an independent review of the record.'" "In conducting that review, we accept the hearing judge's findings of fact as prima facie correct unless shown to be `clearly erroneous,' and we give due regard to the hearing judge's opportunity...