Attorney Griev. Comm'n of Maryland v. Franz & Lipowitz
Decision Date | 01 September 1999 |
Docket Number | Misc. AG No. 44 |
Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Keith S. FRANZ and Judson H. Lipowitz. |
Court | Maryland Court of Appeals |
Melvin Hirshman, Bar Counsel, and Dolores O. Ridgell, Asst. Bar Counsel, for Atty. Grievance Com'n of Maryland.
Melvin J. Skyes, Baltimore, for respondents.
Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW1, RAKER, WILNER and CATHELL, JJ.
The Attorney Grievance Commission of Maryland (the "Commission"), the petitioner, through Bar Counsel and pursuant to Maryland Rule 16-709,2 filed a Petition for Disciplinary Action against Keith S. Franz and Judson H. Lipowitz, the respondents, alleging that the respondents engaged in misconduct arising out of a two train collision which occurred near Silver Spring, Maryland on or about February 16, 1996. More particularly, the petitioner charged that the respondents violated Rule 7.33 of the Maryland Rules of Professional Conduct, Maryland Rule 16-812, Appendix: Rules of Professional Conduct of the Maryland Rules, and Rule 16-609,4 proscribing certain transactions involving attorney trust accounts.
We referred the matter to the Honorable John F. Fader II, of the Circuit Court for Baltimore County, to make findings of fact and draw conclusions of law pursuant to Maryland Rule 16-711(a).5 Following a hearing, Judge Fader filed Findings of Fact and Conclusions of Law as follows:
The hearing court concluded, "by clear and convincing evidence that the respondents... violated Maryland Rule of Professional Conduct 7.3, by initiating in person contacts with prospective clients for the purpose of obtaining professional employment, and Rule 16-609, by drawing or causing to be drawn on an attorney trust account a check payable to `cash.'"
Neither party took exceptions to the findings of fact or conclusions of law. Indeed, both the petitioner and the respondents stipulated that "the Respondents, Keith S. Franz and Judson H. Lipowitz, violated Maryland Rule of Professional Conduct 7.3, by initiating in-person contacts with prospective clients for the purpose of obtaining professional employment, and Rule 16-609, by `drawing or causing to be drawn on an attorney trust account a check payable to cash.'" Consequently, the only issue that this Court is required to decide is the appropriate sanction to be imposed for these violations.
The petitioner seeks for the in person solicitation, as to each respondent, a two-year suspension from the practice of law.6 It relies on Attorney Grievance Commission v. Gregory, 311 Md. 522, 536 A.2d 646 (1988) and Attorney Grievance Commission v. Weiss, 300 Md. 306, 477 A.2d 1190 (1984), in both of which this Court addressed the issue of in-person solicitation of cases. The petitioner points out, in particular, that the solicitation in those cases occurred in the courthouse and, in Gregory, the Court characterized the persons whom the attorney contacted as "vulnerable," and the situation or circumstances in which the solicitation was made as having the potential for overreaching or improper conduct.7 Acknowledging that the sanction in Weiss was a reprimand and, in Gregory, who had previously been reprimanded for in-person solicitation, a ninety day suspension, the petitioner justifies its request for a more severe sanction in this case on the basis that Gregory and Weiss served notice on the bar that such conduct would not be tolerated, that the conduct in this case was more reprehensible, and that the vulnerability of the persons solicited here is greater than in either of those cases.8 Furthermore, comparable sanctions have been imposed for similar conduct by courts in other states. See In the Matter of the Application for Discipline of Perl, 407 N.W.2d 678 (Minn.1987)
; Norris v. Alabama State Bar, 582 So.2d 1034 (Ala.1991); In Re Teichner, 75 Ill.2d 88, 25 Ill.Dec. 609, 387 N.E.2d 265 (1979).9
The respondents believe that the appropriate sanction is a public reprimand. From their perspective, the petitioner's "Draconian recommendation takes no account of guidelines and relevant factors set out in the precedents of this Court and relies on out-of-state case authority that does not support [its] recommendation." The guidelines and relevant factors to which the respondents refer include the purpose of attorney discipline, the absence of any history of being disciplined or charged with violations of the Rules of Professional Conduct, the attorneys' prior professional history,10 whether the behavior was intentional, premeditated or likely to be repeated, the actual effect or result of the offending behavior, whether the attorneys recognized that they had engaged in misconduct and what they did to rectify it, whether the attorneys cooperated with Bar Counsel, and whether the misconduct involved misrepresentation, dishonesty or moral turpitude. Each of these factors militate in favor of a reprimand, the respondents maintain. Moreover, the respondents assert that they have already suffered for their misconduct.
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