Attorney Grievance Comm'n of Md. v. Shapiro

• Decision Date: 30 January 2015
• Docket Number: Misc. Docket AG No. 83, Sept. Term, 2013.
• Citation: 108 A.3d 394,441 Md. 367
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Eugene Alan SHAPIRO.
• Court: Court of Special Appeals of Maryland

441 Md. 367

108 A.3d 394

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Eugene Alan SHAPIRO.

Misc. Docket AG No. 83, Sept. Term, 2013.

Court of Appeals of Maryland.

Jan. 30, 2015.

Raymond A. Hein, Deputy Bar Counsel (Glenn M. Grossman, Attorney Grievance Commission of Maryland), for Petitioner.

Andrew Jay Graham, Esquire, Kramon & Graham, P.A., Baltimore, for Respondent.

Argued before BARBERA, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, McDONALD, WATTS, JJ.

HARRELL, J.

I. Statement of the Case & Procedural History

In this attorney disciplinary action, the Attorney Grievance Commission of Maryland (“Petitioner” or “the Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial Action (“PDRA”) against Eugene Alan Shapiro, Esquire (“Respondent” or “Shapiro”), charging him with violations of the Maryland Lawyers' Rules of Professional Conduct (“MLRPC”) arising from his representation of Diana Wisniewski (“Wisniewski”). Respondent was charged with violating MLRPC 1.2(a) (Scope of Representation and Allocation of Authority Between Client and Lawyer),¹ 1.3 (Diligence),² 1.4 (Communication),³ 1.8 (Conflict of Interest: Current Clients),⁴ 1.16 (Declining or Terminating Representation),⁵ 8.4(a), (c), and (d) (Misconduct).⁶

The Commission served Respondent on 24 January 2014 with a copy of the PDRA, Writ of Summons, and Order for Hearing under Maryland Rule 16–752(a). Respondent filed timely an Answer.

The case was assigned to a hearing judge of the Circuit Court for Baltimore City to conduct an evidentiary hearing and render findings of fact and recommended conclusions of law with regard to the charges. The hearing was conducted on 16 May 2014. Respondent was the sole witness called by Petitioner, and testified on his own behalf as well. At the conclusion of the hearing, the parties submitted proposed written findings of fact and conclusions of law. In addition, Petitioner responded to Respondent's proposed findings of fact and conclusions of law. In the hearing judge's opinion, the following factual findings were made:

The Respondent was admitted to the Maryland Bar on 14 December 1973. He currently maintains a personal injury practice in Baltimore, Maryland, which consists of one other practicing attorney and an administrative assistant.

In the summer of 2004, the complainant, Diane Wisniewski, underwent knee surgery at St. Agnes Hospital, which allegedly resulted in an infection. On 16 September 2005, Wisniewski retained the Respondent as counsel in order to pursue a medical malpractice suit against the hospital. The Respondent agreed to represent Wisniewski in accordance with the following fee arrangement: the Respondent would receive 33.333% of any recovery by settlement without litigation and 40% of any recovery awarded following litigation.

Respondent acquired Wisniewski's medical records and sought an expert for the purpose of filing a Certificate of Merit. Respondent testified that he forwarded Wisniewski's medical records to several doctors; however, none “seemed to be interested in getting involved.” Respondent admits that he did not inform Wisniewski of the difficulty he encountered in obtaining an expert to file the Certificate of Merit.

On 13 July 2007, Respondent filed a Statement of Claim with the Health Claims Arbitration Office on behalf of Wisniewski in an effort to protect her claim from being barred by the applicable statute of limitations date. At this time, the Respondent still had not secured an expert to file the Certificate of Merit. Wisniewski's claim was subsequently dismissed by the Health Claims Arbitration Office, as no Certificate of Merit was ever submitted in support of the claim. By the time the Statement of Claim was dismissed, the statute of limitations concerning Wisniewski's claim had expired.

Respondent admits that he failed to inform Wisniewski that the Health Claims Arbitration Office had dismissed her claim and that the statute of limitations on the claim had expired. Respondent concealed this information for a period of five years following the dismissal of the claim and expiration of the statute of limitations, leading Wisniewski to believe that her claim was still active. Respondent admits that he continued his representation of Wisniewski during this time, failing to inform her of the conflict of interest that existed and her right to seek independent counsel.

By the fall of 2012, Respondent had still failed to inform Wisniewski of the actual status of her case and instead told her that a settlement had been reached. Respondent could not recall the amount of money for which he reported the case had settled. Respondent then met with Wisniewski regarding the fictional settlement, at which time he informed her that he did not have the money she was to receive from the settlement. As a result, Wisniewski filed a complaint with the Petitioner in late October 2012.

Respondent revealed the true status of the medical malpractice claim to Wisniewski at some point after Wisniewski filed her complaint with the Petitioner. Respondent then entered into a “settlement agreement” with Wisniewski in December of 2012. In a handwritten note, signed by the Respondent and witnessed by the Respondent's business partner and wife, Ruth M. Schaub, the Respondent agreed to pay Wisniewski a lump sum of $12,500.00, to be followed by monthly payments of $2,000. The monthly payments were set to begin on 10 January 2013 and to continue until the total of $66,000.00 was paid as “full and final settlement.”

Respondent testified that, at the time of the settlement agreement, he orally informed Wisniewski of her right to seek independent counsel and offered to provide information regarding his malpractice insurance. The written agreement, however, lacks any indicia that Wisniewski gave her informed consent concerning the essential terms of the settlement agreement, Respondent's role in the agreement, or the desirability of retaining independent counsel prior to the execution of the agreement. To the extent that any informed consent may have been obtained in this regard, it was not confirmed by Wisniewski in writing anywhere in this written agreement or in the record.

Respondent testified that the $66,000.00 settlement amount is what Wisniewski would have netted had the case against St. Agnes settled for $100,000.00 (accounting for the Respondent's 1/3 attorney's fee). According to the Respondent, $66,000.00 represents what Wisniewski would have accepted as a settlement had she been successful in litigating her claim.

Respondent testified that all payments to Wisniewski have been made timely and in accordance with the agreement.

(minor alterations added) (citations omitted). Based on his analysis, the hearing judge concluded that the Commission proved, by clear and convincing evidence, that Shapiro violated MLRPC 1.2(a), 1.3, 1.4(a) and (b), 1.8(a)(2), 1.16, and 8.4(a), (c), and (d). The hearing judge's conclusions of law with respect to each of the claimed violations will be discussed in turn below.

Petitioner filed with us a single written exception to the hearing judge's Findings of Fact and Conclusions of Law. In its exception, Petitioner argued that the hearing judge should have concluded that Petitioner proved by clear and convincing evidence that the terms of the settlement agreement were unfair or unreasonable, leading to a violation of MLRPC 1.8(a)(1). Respondent filed no exceptions, timely or otherwise.

II. Standard of Review

The Court of Appeals has original jurisdiction over attorney discipline matters. Attorney Grievance Commission v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 867 (2013). Accordingly, we “conduct an independent review of the record.” Attorney Grievance Commission v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 763 (2002). “We determine, ultimately, whether an attorney has committed the misconduct charged by the Attorney Grievance Commission.” Attorney Grievance Commission v. Maignan, 390 Md. 287, 292, 888 A.2d 344, 347 (2005). In accordance with Maryland Rule 16–752, we refer petitions for disciplinary action to a circuit court judge to act as our hearing officer, for that judge to receive evidence and thereafter present to the Court findings of fact and recommended conclusions of law. See Maignan, 390 Md. at 292–93, 888 A.2d at 347. Exceptions may be taken by the parties to the findings of fact, proposed conclusions of law, or both. If no exceptions are filed with respect to the hearing judge's findings of fact, we may “treat the findings of fact as established for the purpose of determining appropriate sanctions, if any.” Md. Rule 16–759(b)(2)(A). If exceptions are filed, we must determine whether the findings of fact are clearly erroneous. Md. Rule 16–759(b)(2)(B) ; see Attorney Grievance Commission v. Stolarz, 379 Md. 387, 397, 842 A.2d 42, 47 (2004) (“We ... accept[ ] the hearing judge's findings of fact unless clearly erroneous.”).

When assessing the hearing judge's findings of fact, we “give due regard to the opportunity of the hearing judge to assess the credibility of witnesses.” Md. Rule 16–759(b)(2)(B). We review the judge's recommended conclusions of law without deference, a standard referred to sometimes as de novo. Md. Rule 16–759(b)(1) ; see Attorney Grievance Commission v. Greenleaf, 438 Md. 151, 156, 91 A.3d 1066, 1069 (2014) (“In an attorney discipline proceeding, this Court reviews for clear error the hearing judge's findings of fact, and reviews without deference the hearing judge's conclusions of law.”); Attorney Grievance Commission v. Moeller, 427 Md. 66, 73, 46 A.3d 407, 411 (2012) (“With respect to a hearing judge's conclusions of law, no deference applies and we review those conclusions de novo. ”); Attorney Grievance Commission v. Patterson, 421 Md. 708, 724, 28 A.3d 1196, 1205 (2011).

Inasmuch as no party filed exceptions to the factual findings of the hearing judge, we accept them as established. We turn then to consideration of the recommended conclusions...