Att'y Griev. Comm'n of MD v. Shaw

• Court: Court of Appeals of Maryland
• Writing for the Court: Argued before Bell; Opinion by Bell
• Citation: 354 Md. 636,732 A.2d 876
• Parties: (Md.1999) ATTORNEY GRIEVANCE COMMISSION OF MARYLAND V. PAMELA LOUISE SHAW MISC. DOCKET AG NO. 75
• Decision Date: 01 September 1997

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732 A.2d 876 (Md.1999) ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
V.
PAMELA LOUISE SHAW MISC. DOCKET AG NO. 75
SEPTEMBER TERM, 1997 IN THE COURT OF APPEALS OF MARYLAND July 9, 1999

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Copyrighted Material Omitted

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Argued before Bell, C.J., Eldridge, Rodowsky, Chasanow, Raker, Wilner, Cathell, JJ.

Opinion by Bell, C.J.

The issues we address today are twofold. First, we decide whether an attorney who researches stocks for a disabled person's estate is engaged in the practice of law. Second, we shall determine under what circumstances an attorney may be disciplined for violations of the Rules of Professional Conduct, occurring while not practicing law.

I.

The Attorney Grievance Commission of Maryland, the petitioner, acting through Bar Counsel and at the direction of the Review Board, see Maryland Rule 16-709,¹ filed a Petition for Disciplinary Action against Pamela L. Shaw, the respondent, charging her with misconduct, as defined by Rule 16-701 (k),²

in connection with her handling of a tax capital gains and loss analysis for the estate of a disabled person, John Berger. The petition alleged that the respondent, who had virtually no experience in determining the losses and gains of stocks, was hired by Michelle Towson, the guardian of the property of Mr. Berger, to prepare a capital gains and loss analysis, a matter she was not competent to handle, for which she charged the estate an inordinate fee of $20,000, of which she was paid between $18,500 and $19,000. According to the petitioner, the product of her work was "completely and utterly worthless" and incorrect. The petition also alleged that the respondent held herself out as an attorney by using the term "esquire" and charging a "fee for professional services rendered." In addition, the petitioner charged, the respondent knowingly and willfully failed to respond to Bar Counsel's requests for information. Specifically, the petition alleged that the respondent violated the following disciplinary rules: 1.1 (Competence);³ 1.5(a);⁴ 8.1 (Bar Admission);⁵ and 8.4 (a), (c), and (d).⁶

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We referred the case to the Honorable Richard T. Rombro, of the Circuit Court for Baltimore City, for hearing. See 16-711 (a).⁷ Following the hearing, at which the respondent, who was represented by counsel, was present and testified,⁸ Judge Rombro made the following findings of fact:

"1. That the Respondent is a member of the Maryland Bar and although on the inactive list, as a result of non-payment to the Clients' Security Trust Fund, she is subject to disciplinary action. Attorney Grievance Commission v. Hopp, 330 Md. 177 (1993);

"2. That the Respondent held herself out as an attorney when she was seeking to do the work on the Berger matter. The court notes that her letter of March 1st, 1993 ... is signed 'Pamela L. Shaw, Esq.';

"3. That the court finds as a fact that the Respondent had no experience, and indeed little knowledge, of the workings of the stock market or the evaluation of an estate consisting of stocks and bonds;

"4. That the $20,000.00 fee charged for a service which would have been performed for nothing by the stockbroker was an inordinate fee;

"5. This court believes and finds that the Respondent undertook this task as legal work. The respondent testified that she did not believe that her work for the guardian was the practice of law. Even if the Respondent is correct, where the act complained of is 'committed in a nonprofessional capacity ...it ...bears upon the fitness of a lawyer to practice his profession.' Attorney Grievance Commission v. Lazerow, 320 Md. 507, 513 (1990), citing Attorney Grievance Commission v. Silk, 279 Md. 345 (19[8]7). In Vice President Agnew's disbarment proceeding, the Court of Appeals declared that "The professional ethical obligations of an attorney, as long as he remains a member of the bar, are not affected by a decision to pursue his livelihood by practicing law, entering the business world , becoming a public servant, or embarking upon any other endeavor." Maryland St. Bar Ass'n v. Agnew, 271 Md. 543, 550 (1974)."

The hearing court concluded as follows as to the charged misconduct:

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"1. Rule 1.1. Competence. The court finds that the Respondent violated this rule. As noted, the Respondent had no special knowledge or skill involving the matter which she undertook for the guardian. Indeed, when questioned as to the methodology which she used in determining the evaluations of the portfolio, she was unable to recall or to respond to any of the questions. This court finds that the documents submitted to the guardian were valueless, and were provided solely for the purpose of collecting a fee.

"2. The Respondent is also charged with violation of Rule 1.5 dealing with fees. The Rules of Professional Conduct require that the fee should be reasonable, and sets forth eight matters to be considered in determining the reasonableness of the fee. Without setting forth all of the criteria, this court finds that the amount charged in this case was unreasonable when measured against these guidelines. The matter involved was not novel or difficult; its undertaking did not preclude other employment by the Respondent; although the amount involved was substantial, the results obtained were worthless; the Respondent had no particular experience, reputation or special ability to perform the services; and while there was no testimony as to what fee would customarily be charged in this locality by a lawyer performing the same task, there was testimony from a stockbroker that this service is performed by his company for no charge.

"3. The Petitioner charged that the Respondent violated Rule 8.1 by knowingly failing to respond to a lawful demand for information from a disciplinary authority. This court finds that the Respondent did violate this rule. Assuming that the Respondent did not receive the first two letters from Bar Counsel (an assumption that is generous to the Respondent), it is clear that she eventually received the letters when they were left with her nephew. She had two subsequent conversations with the investigator for the Petitioner, and she failed to respond to either. The Respondent even failed to answer the request for Admission of Facts. This court therefore concludes that the Respondent not only failed to respond, but that such failure was knowing and intentional on her part.

"4. Finally, the Respondent is charged with violation of Rule 8.4, Misconduct. This court finds that the Petitioner has not met the burden of showing a violation of Subsection (a) of Rule 8.4, that Respondent acted or assisted or induced another person to violate the Rules of Conduct or did so through the acts of another person.

"This court finds that the Respondent did violate Subsection (c) by engaging in conduct involving dishonesty, fraud, deceit or misrepresentation. This court finds by clear and convincing evidence that the conduct of the Respondent in holding herself out as competent in this area and charging an excessive fee for the services she rendered amounts to dishonesty and misrepresentation.

"This court finds that the Respondent also violated Subsection (d) of Rule 8.4, engaging in conduct prejudicial to the administration of justice. The Respondent knew that her report [] would be used by the guardian in the administration of the guardianship estate, which would by definition amount to conduct prejudicial to the administration of justice."

Unlike the petitioner, who took no exceptions to the hearing court's findings of fact and conclusions of law, the respondent excepted to several of the findings of fact, i.e., that she failed to respond to discovery, that she held herself out as an attorney, that she had little knowledge of the workings of the stock market, that the fee was inordinate, and that she had engaged in the practice of law, arguing that they were clearly erroneous. The respondent also excepted to the hearing court's conclusions of law, similarly contending that they were

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erroneous. In addition to the conclusions with respect to the Rule violations, she challenges the conclusion that she is subject to discipline as a lawyer, despite being on the inactive list. II.

A.

The respondent's exception to the hearing court's finding and conclusion that she did not respond to discovery requests can be disposed of easily and quickly. Other than stating the exception, the respondent did not further pursue the matter. The exception, therefore, is overruled. As will become clear hereafter, the case is being remanded to the hearing court for further proceedings. Consequently, whether to impose a sanction in respect of this violation and, if so, what the appropriate sanction is, must await our subsequent review of this case.

B.

This Court has original and complete jurisdiction over attorney disciplinary proceedings. Md. Rule 16-709 (b); Attorney Grievance Comm'n v. Adams, 349 Md. 86, 93, 706 A.2d 1080, 1083 (1998); Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 470, 671 A.2d 463, 473 (1996); Attorney Grievance Comm'n v. Kent, 337 Md. 361, 371, 653 A.2d 909, 914 (1995); Attorney Grievance Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992). Accordingly, the ultimate decision as to whether a lawyer has violated the Rules of Professional Conduct rests with this Court. Attorney Grievance Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997); Attorney Grievance Comm'n v. Breschi, 340 Md. 590, 599, 667 A.2d 659, 663 (1995); Attorney Grievance Comm'n v. Joehl, 335 Md. 83, 88, 642 A.2d 194, 196 (1994) . Under our independent review of the record, we must determine whether the findings of the hearing judge are based on clear and convincing evidence. Attorney Grievance Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992); Attorney Grievance Comm'n v. Clements, 319 Md. 289, 298, 572 A.2d 174, 179 (1990). The "hearing court's findings of fact are...