Attorney Grievance Com'n of Maryland v. Saul

• Decision Date: 01 September 1993
• Docket Number: No. 40,40
• Citation: 653 A.2d 430,337 Md. 258
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ira Stephen SAUL. Misc. Docket (Subtitle BV) ,
• Court: Maryland Court of Appeals

Page 258

337 Md. 258

653 A.2d 430

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Ira Stephen SAUL.

Misc. Docket (Subtitle BV)

No. 40, Sept. Term, 1993.

Court of Appeals of Maryland.

Feb. 6, 1995.

Melvin Hirshman, Bar Counsel and Raymond A. Hein, Asst. Bar Counsel, for the Atty. Grievance Com'n of Maryland, petitioner.

Ira Stephen Saul, Fairfax, VA, pro se.

Argued before MURPHY, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, KARWACKI, BELL and RAKER, JJ.

KARWACKI, Judge.

Before us in this case is the question of what sanction should be imposed upon a member of the Maryland Bar who, in 1994, was suspended from the practice of law in Virginia after being convicted of bank fraud by a federal district court sitting in that state.

I

For twenty years prior to his suspension, Ira Saul practiced law in Fairfax, Virginia. He was also licensed to practice in the District of Columbia ¹ and in Maryland but did not have an active practice in either of those jurisdictions.

At the end of 1989, Saul was retained by Carter Boehm, a Northern Virginia real estate developer, to handle certain real estate matters relating to a general partnership that owned several hundred acres of land in Spotsylvania County, Virginia. These matters included representation in a condemnation proceeding and drafting restrictive covenants for a subdivision then being developed for the property.

In early 1990, Boehm and others, without Saul's knowledge, conspired to enter into inflated real estate contracts to buy residential building lots. Their plan was to inflate the purchase price of the lots based on an appraisal at the inflated price and to obtain bank financing for 80% of the inflated price from Liberty Savings Bank of Warrenton ("the Bank"). This would result in 100% financing of the sales and leave approximately $7,000.00 free and clear for the seller to kickback to each buyer after closing. As Saul was already doing subdivision work for the property, he agreed to act as settlement agent for the residential sales. Saul, however, had no involvement in the formulation of the fraudulent deals or the real estate contracts that grew out of them, and the kickbacks all occurred outside of Saul's law office without his knowledge.

In March, 1993, Saul, a member of both the Maryland and Virginia Bars, was convicted on four counts of bank fraud in the United States District Court for the Eastern District of Virginia, but was acquitted of any conspiracy. ² Although the applicable federal law permits a sentence of up to thirty years imprisonment, Saul was only sentenced to two years probation and a mandatory special assessment of $200.00. Saul did not appeal from that judgment.

Ira Saul's license to practice law was first suspended in Virginia on August 4, 1993, following his conviction. An extensive show cause hearing was held before a five-member panel of the Virginia State Bar Disciplinary Board. At closing argument, Bar Counsel asked for disbarment, while Respondent's counsel asked for a three-year probationary period nunc pro tunc to the August 4, 1993, suspension date, with the balance of the suspension from the September 14, 1994, hearing date being suspended. The Board imposed a five-year suspension nunc pro tunc to August 4, 1993, the date on which the automatic suspension had begun.

In October, 1993, we issued a show cause order pursuant to Maryland Rule BV16. With Saul's consent, an order of suspension was entered by us on November 19, 1993. The Attorney Grievance Commission, acting through Bar Counsel, filed a petition for disciplinary action against Saul, alleging violation of Disciplinary Rule 8.4. Pursuant to Md. Rule BV10, we referred the matter to Judge Raymond G. Thieme, Jr., of the Circuit Court for Anne Arundel County to make findings of fact and conclusions of law. After conducting a hearing, Judge Thieme made the following findings and conclusions:

"FINDINGS OF FACT

"1. Ira Stephen Saul ('the Respondent') was admitted as a member of the Bar of the State of Maryland on December 7, 1987.

"2. On June 3, 1993, following a jury trial in the United States District Court for the Eastern District of Virginia the Respondent was found guilty of four counts of bank fraud, in violation of 18 U.S.C. § 1344, based on his participation in a scheme to defraud Liberty Savings Bank, a federally insured financial institution in Warrenton, Virginia.

"3. On July 26, 1993, the federal court in Virginia denied Respondent's motion for judgment of acquittal, or in the alternative, for a new trial.

"4. On September 3, 1993, the federal court in Virginia entered judgment against the Respondent on the four counts of which he was found guilty. The Respondent was sentenced to a term of two (2) years on probation and ordered to pay a mandatory statutory special assessment in the amount of $200.00.

"4.[ ³] The Respondent did not appeal the judgment of conviction entered against him, and the time for doing so has expired.

"5. On November 19, 1993, the Respondent was suspended as a member of the Maryland Bar by Order of the Court of Appeals.

"6. On July 20, 1994, at a Hearing before this Court, pursuant to Maryland Rule BV10d the Respondent introduced evidence with regard to mitigation, including but not limited to:

a. Respondent did not profit from the transactions giving rise to his conviction.

b. No loss to Liberty Savings Bank had been established.

c. The trial court found Respondent's role to be de minimis.

d. All intent as described in the indictment was embodied in the conspiracy of which Respondent was acquitted.

e. The conduct found to be violative of 18 U.S.C. § 1344 equates to a Class 3 misdemeanor under Virginia law, Code of Virginia, 1950, as amended, § 18.2-203 f. The trial court did not enhance Respondent's sentence for more than minimal planning, or for abuse of a position of trust, or for use of a special skill.

g. The Respondent successfully practiced law in Virginia for almost 20 years.

"CONCLUSIONS OF LAW

"1. Pursuant to Rule BV10(e)1, the final judgment of conviction on four counts of bank fraud entered against the Respondent is conclusive proof of his guilt of those offenses.

"2. The offenses of which the Respondent has been convicted are criminal acts reflecting adversely on his honesty, trustworthiness or fitness as a lawyer in other respects.

"3. The offenses of which the Respondent has been convicted reflect that he has engaged in conduct involving dishonesty, fraud, deceit or misrepresentation.

"4. By his conduct, the Respondent has violated Rules 8.4(a), (b) and (c) of the Maryland Rules of Professional Conduct, as adopted by Rule 1230 of the Maryland Bar."

Saul takes exception to Conclusions of Law number two (2) and three (3), contending that Saul's minimal involvement in the offenses does not reflect upon his honesty, trustworthiness, or fitness as a lawyer. Further, he points out that he did not profit from the transactions giving rise to his conviction, and that there were no losses incurred by the Bank. Saul asks us to reciprocally discipline him and impose a five year suspension nunc pro tunc to August 5, 1993.

II

Before determining what weight to give the Virginia proceedings, we must examine the attorney grievance process in Virginia and the proceedings there under which Saul was suspended. The procedures for disciplining attorneys in Virginia are contained in the Rules of the Supreme Court of Virginia (1994), Pt. 6, § IV, Para. 13. ⁴ The Council of the Bar, which has general responsibility for the disciplinary system, appoints District Committees from geographical areas consisting of one or more judicial circuits. Approximately 22% of each Committee must consist of non-lawyers. Each Committee is further divided into Subcommittees, appointed by the Chair of the District Committee. Each District Committee has the authority to "adjudicate and make disposition of Charges of Misconduct filed" by Bar Counsel. Para. 13(B)(4)(a). Directly above the District Committees in the chain of authority is the Virginia State Disciplinary Board, which consists of fourteen members appointed by the Chief Justice of the Supreme Court of Virginia. Two of its members must be non-lawyers. The Board has authority to consider, inter alia, conviction of a crime:

"(1) Summary Suspension: Whenever the Clerk of the Disciplinary System receives written notification from any court of competent jurisdiction stating that an Attorney has been found guilty of a Crime by verdict of a judge or jury, irrespective of whether sentencing has occurred, the Board shall forthwith enter an order summarily suspending the license of the Attorney and shall forthwith serve upon the Attorney (a) a copy of the written notification from the court, (b) a copy of the Board's order, and (c) a notice fixing the time and place of a hearing to determine whether the license of the Attorney should be revoked or further suspended....

* * * * * *

"(2) Action By the Board: If the Board shall find at the hearing that the Respondent has been found guilty of a Crime by the verdict of a judge or jury, an order shall be issued and served upon the Respondent in which the Board shall:

(a) Suspend, or continue the suspension of, the license of the Respondent for a stated period not in excess of five years; or

(b) Revoke the license of the Respondent."

Para. 13(E). Saul was summarily suspended following his conviction and participated in a hearing before the Board. ⁵ The parties in this case have stipulated that the following occurred at that hearing:

"Virginia Bar Counsel's case in chief consisted of the introduction of papers relating to Respondent's conviction, received without objection.

"Ira Saul's first witness was Charles Fitzpatrick, Esquire, an attorney with the Office of Thrift Supervision ('OTS') and longstanding acquaintance of the Respondent. Fitzpatrick testified to Ira Saul's outstanding reputation as an attorney in Northern Virginia both at...