Attorney Grievance Comm'n of Md. v. Rheinstein

• Decision Date: 24 January 2020
• Docket Number: Misc. Docket AG No. 77, Sept. Term, 2015
• Citation: 466 Md. 648,223 A.3d 505
• Parties: ATTORNEY GRIEVANCE COMMISSION of Maryland v. Jason Edward RHEINSTEIN
• Court: Court of Special Appeals of Maryland

466 Md. 648

223 A.3d 505

ATTORNEY GRIEVANCE COMMISSION of Maryland

v.Jason Edward RHEINSTEIN

Misc. Docket AG No. 77, Sept. Term, 2015

Court of Appeals of Maryland.

January 24, 2020

Reconsideration Denied February 28, 2020

Argued by Lydia E. Lawless, Bar Counsel (Attorney Grievance Commission of Maryland), for Petitioner.

Argued by Craig Stephen Brodsky, Goodell, DeVries, Leech & Dann, LLP, (Baltimore, MD), for Respondent.

Argued before: Barbera, C.J., McDonald, Watts, Hotten, Booth, Lynne A. Battaglia (Senior Judge, Specially Assigned), Clayton Greene Jr. (Senior Judge, Specially Assigned), JJ.

Battaglia, J. Jason Edward Rheinstein ("Rheinstein"), Respondent, was admitted to the Bar of this Court on December 15, 2005. On February 17, 2016, the Attorney Grievance Commission ("Petitioner" or "Bar Counsel"), acting pursuant to Maryland Rule 16-751(a),¹ filed a Petition for Disciplinary or Remedial Action ("Petition") against Rheinstein related to his representation of Charles and Felicia Moore. The Petition alleged that Rheinstein violated the following Maryland Rules of Professional Conduct ("Rule"): 1.1 (Competence),² 3.1 (Meritorious Claims and Contentions),³ 3.2 (Expediting Litigation),⁴ 3.4 (Fairness to Opposing Party and Counsel),⁵ 4.4 (Respect for Rights of Third Persons)⁶ and 8.4 (Misconduct).⁷ The allegations of the Petition stem from his representation in the Circuit Court for Baltimore City of the Moores in challenging confessed judgments entered against them based upon their default on a construction loan in the amount of $200,000.00 from Imagine Capital, Inc.

In an Order dated February 23, 2016, we referred the matter to Judge Paul F. Harris of the Circuit Court for Anne Arundel County for a hearing, pursuant to Maryland Rule 16-757.⁸ Judge Glenn L. Klavans of the Circuit Court for Anne Arundel County heard the matter following Judge Harris's retirement; he determined that Rheinstein had committed discovery violations which warranted sanctions culminating in Respondent admitting the allegations in the Petition as well as being prohibited from presenting evidence, to include the presentation of experts.⁹ We begin with an extensive review of the procedural history.

PROCEDURAL HISTORY

Rheinstein was served with the Petition for Disciplinary or Remedial Action, our Order, and the Writ of Summons on April 22, 2016. On the same day, Bar Counsel served counsel for Respondent with Petitioner's First Set of Interrogatories and Petitioner's First Request for Production of Documents.

On May 12, 2016, Rheinstein filed, in the circuit court, "Respondent's Motion to Dismiss Petition for Disciplinary or Remedial Action for Failure to State a Claim and Lack of Ripeness; or in the Alternative, Motion for More Definite Statement; and Request for Hearing." On May 23, 2016, without responding to Bar Counsel's discovery requests and before his motion to dismiss was ruled upon, Respondent also filed a Notice of Removal in the United States District Court for the District of Maryland, contending that the federal court possessed jurisdiction because of federal questions and the federal officer removal statute.¹⁰ Ten months later, on March 17, 2017, after Bar Counsel moved to have the case remanded back to the state court, the federal district court did so, noting that it did not have jurisdiction over the matter, and, if it were to have possessed jurisdiction, it "would nevertheless have abstained and remanded the case to proceed in the state court." Attorney Grievance Comm'n of Maryland v. Rheinstein , No. MJG-16-1591, 2017 WL 1035831, at *3 (D. Md. Mar. 17, 2017).

On June 8, 2017, upon remand, Judge Harris heard arguments on the 2016 motion to dismiss and subsequently denied it. During this hearing, Judge Harris stated on the record that the deadline for discovery was August 8, 2017, which was noted on the Scheduling Conference Hearing Sheet, albeit not on the Scheduling Order:

THE COURT: All right. We're going to conduct a scheduling conference. Have we – how do we stand time wise?

[BAR COUNSEL]: Your Honor, I was doing the calculations and I know I had talked to your clerk about this too, service – the original service in this case was April 22, 2016, so pursuant to the Court's original order we had 120 days from that date to complete the hearing on this matter. The matter was removed to the federal court on May 23, 2016, so we've used up the first 30 days. It was remanded on March 17th, 2017. So I think between March 17th, if my math is correct and today, that's ... an additional 85 days.

But my suggestion would be, Your Honor, with the Court's permission, that we start the clock anew. Discovery has been propounded by the Petitioner, but as Your Honor knows the answer hasn't been filed yet, discovery responses haven't begun again....

THE COURT: Answers to your discovery have not been made?

[BAR COUNSEL]: That's correct, Your Honor.

THE COURT: Okay. When are they due?

[BAR COUNSEL]: They were – oh, they were due – they've been long overdue, but I haven't filed a motion to comply.

THE COURT: Well but I - - if discovery has already started I need to put limit on the discovery deadline.... Why haven't your responses been given yet?

[COUNSEL FOR RESPONDENT]: It has been in the federal court since then.

THE COURT: Well it's not anymore is it?

[COUNSEL FOR RESPONDENT]: Well, Your Honor, two of the claims that they made involve federal lawsuits.

THE COURT: Uh-huh.

[COUNSEL FOR RESPONDENT]: And the issue was whether they should be resolved by the court in which they are filed under federal law and not in a Maryland court deciding what a federal court should do. And that has just ended with its removal from the federal court back to Maryland. And so that delayed everything.

THE COURT: All right. Well why don't we do this. Let me - - bear with me.... Are we going to need an extension?

[BAR COUNSEL]: Your, Honor, that's what I was going to say is we're very likely going to need an extension any way, and so my preference would be, and I know that I've spoken to [counsel for Respondent] about this briefly earlier in the week, is that we sort of start over as if things had - - as if the petition had just been filed, maybe look at a trial date in December and then get an extension for the trial date and then backtrack the dates for discovery deadline and the like.

(alterations added). Judge Harris chose to conclude discovery within 60 days, by August 8, 2017:

THE COURT: Today is June 8th, I see no reason why discovery should not be completed within 60 days. Everybody in agreement with that?

[BAR COUNSEL]: I am, Your Honor.

THE COURT: Okay. Counsel? [ ]

[COUNSEL FOR RESPONDENT]: It's going to be tight. I know my own schedule and I know what I've got trial wise and everybody else. I think 60 days is pushing it to get everything done that needs to be done.

THE COURT: Well let me tell you, sir, with all due respect we do medical malpractice cases and get them done in 60 days. So it's going to be 60 days.

[COUNSEL FOR RESPONDENT]: I understand. I was asked though, and I'm telling you - -

THE COURT: Well I appreciate it, I appreciate your input.

* * *

THE COURT: Okay. So we're going to set the discovery deadline for August 8th.

[COUNSEL FOR RESPONDENT]: May I ask a question, Your Honor?

THE COURT: Go ahead, Counsel.

[COUNSEL FOR RESPONDENT]: Is it August date to be filed or August date to be answered and completed?

THE COURT: Everything done.

[COUNSEL FOR RESPONDENT]: Done. Both ways.

THE COURT: So read our DCM policy, because if there's an issue with a motion to compel discovery all of that needs to be recognized short of the 60 days so it can be resolved within 60 days. Okay?

[COUNSEL FOR RESPONDENT]: That's correct. Is the time the same as in the rule 30 days to answer or should we adjust that?

THE COURT: Well that – look at our DCM plan. I mean to answer your question there's two ways to approach it. If we went by the rule you would already be in default for not answering her discovery at this point.... That's what the rule says. But because we haven't had the opportunity of the scheduling order yet our DCM plan would kick in and the dates that I'm setting you can get your discovery done well before that.

[COUNSEL FOR RESPONDENT]: I understand, Your Honor, but please understand perhaps I'm in error, but this matter has been under the jurisdiction of the federal court with the [state] court no longer having jurisdiction until recently.

THE COURT: The Attorney Grievance matter was in federal court; is that what you're saying?

[COUNSEL FOR RESPONDENT]: Yes. Yes, Your Honor. [ ] Okay. And our contention was that you couldn't claim a federal case was frivolous when it was pending to be heard by the federal court and you had to await the ruling in the federal court. And the federal court took that under consideration. It took a while with [them] then said, no, send it back just for discipline.

(alterations added).

At the hearing, Judge Harris also inquired as to whether the parties would be calling any expert witnesses:

THE COURT: Any need for experts?

[BAR COUNSEL]: Not on my side, Your Honor.

[COUNSEL FOR RESPONDENT]: I don't know as [of] yet, Your Honor, I'm not sure until we get discovery what they're claiming is frivolous.

The hearing on the matter was set for six days to begin on September 5, 2017. On June 30, 2017, the attorneys representing Rheinstein moved to withdraw whereupon Respondent entered "the appearance of Jason E. Rheinstein, Esq., pro se , as counsel for the Respondent[.]"

On July 19, 2017, Bar Counsel filed a Motion for Sanctions and Order of Default, based upon Respondent's failure to answer the Petition within fifteen days of April 22, 2016, the date of its service; his failure to respond to Bar Counsel's interrogatories and requests for production of documents or otherwise to explain his failure to respond or seek a protective order, thus, asking the court to:

(a) Order that the averments in the Petition for Disciplinary or Remedial Action be deemed

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