Attorney Grievance Comm'n of Md. v. Keiner, Misc. Docket AG No. 24

• Decision Date: 19 August 2011
• Docket Number: Misc. Docket AG No. 24,2010.,Sept. Term
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLANDv.Gregory Raymond KEINER.
• Court: Maryland Court of Appeals

421 Md. 492

27 A.3d 153

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Gregory Raymond KEINER.

Misc. Docket AG No. 24

Sept. Term

2010.

Court of Appeals of Maryland.

Aug. 19, 2011.

Glenn M. Grossman, Bar Counsel for Attorney Grievance Commission of Maryland, for petitioner.Daniel M. Clements, Esquire of Salsbury, Clements & Bekman, Marder & Adkins, LLC, Baltimore, MD (Katharine O. Porwick, Esquire on pleadings), for respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, BARBERA, JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.BARBERA, J.

On July 28, 2010, the Attorney Grievance Commission, acting through Bar Counsel, filed a Petition for Disciplinary Action or Remedial Action (“Petition”) against Gregory Raymond Keiner (“Respondent”). See Md. Rule 16–751. Bar Counsel charged Respondent with violating Maryland Lawyers' Rules of Professional Conduct (“MRPC”) 1.4 (Communication) ¹ and 8.4 (Misconduct).² Pursuant to Maryland Rules 16–773 and 16–752(a), we referred the Petition to the Honorable Timothy J. McCrone of the Circuit Court for Howard County, to conduct an evidentiary hearing and make findings of fact and conclusions of law in accordance with Maryland Rule 16–757.

Before that hearing, Judge McCrone was asked by the parties to resolve several discovery and evidentiary matters. Respondent had filed Interrogatories and Requests for Admission, seeking, inter alia, information in connection with Bar Counsel's decision not to enter into a conditional diversion agreement with Respondent. See Md. Rule 16–736. Bar Counsel responded to those discovery requests by filing a Motion for Protective Order.

Judge McCrone held a hearing to (1) address the motion for protective order, and (2) determine whether Respondent would be permitted to enter into evidence at the hearing on the Petition both a Report of the Peer Review Panel concerning Respondent and letter communications between Bar Counsel and Respondent regarding the possibility of a conditional diversion agreement. Judge McCrone issued the protective order requested by Bar Counsel on the ground that the information Respondent sought in connection with such an agreement is not relevant to any claim or defense at issue at the hearing on the Petition. Judge McCrone further ruled that, because the “Peer Review process is a confidential mediation that is irrelevant to the issues before the court” at the hearing on the Petition, Respondent would not be permitted to have the Report of the Peer Review Panel entered into evidence.

On December 17, 2010, Judge McCrone conducted the evidentiary hearing on the Petition. Respondent appeared with counsel at the hearing and testified. On January 18, 2011, Judge McCrone issued written findings of fact and conclusions of law. He found by clear and convincing evidence that Respondent had violated MRPC 1.4(a) and (b), and 8.4(a), (b), (c), and (d).

I.

Judge McCrone made the following findings of fact and conclusions of law: ³

FINDINGS OF FACT & ANALYSIS

Respondent was admitted as a member of the Maryland Bar on December 18, 2002 and maintained his law practice at 100 E. 23rd Street, Baltimore, Maryland 21218. From February 2003 until March 2009 Respondent worked as an Associate Attorney at The Law Offices of Evan K. Thalenberg, P.A. (hereinafter “law firm”), practicing primarily lead paint litigation. As of 2008, Respondent's income with the firm was $268,700.00.

In 2008, Respondent decided that he wanted to leave the law firm and establish his own practice. From approximately June 2008 until March 2009, in order to facilitate opening his own practice, Respondent began altering and deleting documents in the firm's client files to give the appearance to the firm that client files had been closed, when in fact the files were still active. Respondent deleted and altered documents in the firm's client files to show lower-than-actual or, in some cases, the absence of, blood-lead levels to support his drafting of a termination letter to the clients of the firm. The subject false termination letters were not sent to the client, but were placed in the firm's file to give the false impression to other members of the firm that the file had been closed. Respondent conceded that he engaged in deception to facilitate taking these clients with him once he left the firm. Respondent further conceded that he did not inform the clients of his actions in misleading the firm to believe these cases lacked merit.

The evidence adduced by [Bar Counsel] further made clear that Respondent solicited approximately two hundred (200) potential clients and sought medical and/or laboratory results for potential clients using his own letterhead while working for the firm. Respondent conceded in his testimony that he utilized the firm's resources such as postage, paper, various office supplies, and the firm's Accurint subscription to locate potential clients. Respondent's deception was discovered when a client contacted the firm and produced a letter from Respondent on Respondent's own letterhead. When Respondent was confronted with the solicitation letter, he wrote a letter to Mr. Thalenberg admitting that he had altered computer records at the firm in four cases.

Mr. John Kazmierczak, another attorney with the firm, was assigned the task of investigating cases Respondent may have altered while working at the firm. Mr. Kazmierczak located four additional client files that were inappropriately altered by Respondent. Mr. Kazmierczak's investigation revealed that Respondent deleted the blood-lead levels in the case summary in the Raven Banks and Derrick Young file, to give the false impression that no blood-lead levels had been found. Respondent then generated a termination letter to the file based upon Respondent's misrepresentation concerning blood-lead levels. Mr. Kazmierczak was able to review an electronic back-up file at the firm which revealed the correct blood-lead levels for Raven Banks of 18 on July 29, 1992, 16 on September 22, 1993, and 17 on November 4, 1993. These numbers were consistent with the actual medical records of Raven Banks and Derrick Young located in the firm's file. Mr. Kazmierczak, who also practiced primarily in the area of lead-paint litigation, testified that these blood-lead levels were sufficient to support a claim.

In the Tyana Baker and Tyrone Baker file, Mr. Kazmierczak located a termination letter in the file drafted by Respondent. When Mr. Kazmierczak reviewed the electronic back-up file he found a case summary reflecting blood-lead levels for Tyrone Baker of 8 on February 28, 1995, 15 on May 24, 1996, and of 9 on January 30, 1997; numbers inconsistent with the termination letter placed in the file by Respondent.

In the Shade Brice, et al. file[,] Mr. Kazmierczak observed similar changes to the firm computer file by Respondent. A termination letter generated by Respondent was placed in the file to mislead others at the firm concerning blood-lead levels and the potential for a claim. Upon review of the electronic back-up file at the firm, Mr. Kazmierczak was able to confirm blood-lead levels for Shade Brice, Zhane McDougle, and Kareen McDougle ranging from 17 to 6 for Shade Brice, 17 to 9 for Zhane McDougle, and 3 for Kareen McDougle. According to Mr. Kazmierczak, these blood-lead levels would again support filing a lawsuit, and would not be consistent with the termination letter placed in the file by Respondent.

In the Da' Shira Coley, et al. file, Mr. Kazmierczak found a similar effort to mislead by Respondent. No case summary was found for the case. However, a review of the electronic back-up file revealed blood-lead levels for Shanece Coley of 13 on March 16, 1995 and 12 on May 12, 1995 and Da' Shira Coley of 4 on March 15, 1999.

In each of these four client files, Respondent admitted to making the misleading entries in the firm's computer files. Respondent testified that he engaged in these misrepresentations in order to avoid filing claims while working at the firm, and to facilitate filing these claims once he was practicing law on his own. Respondent testified that he returned sixty (60) to seventy (70) files to the firm after his actions were discovered.

In addition to the four client files that Respondent admitted to altering, Mr. Kazmierczak was able to locate four additional client files that had similar alterations. In the Ronald Dalton, Jr. file, Mr. Kazmierczak found no case summary in the file. Respondent had generated a termination letter to the file. Upon review of the electronic back-up file at the firm, a case summary was found that indicated blood-lead levels for Ronald Dalton, Jr. of 6 on August 26, 1997 and 5 on September 3, 1998. In fact, a draft complaint was found approved by the child's mother. According to Mr. Kazmierczak, the blood-lead levels were sufficient to support a viable suit.

In the Devontae Davis file, Respondent had drafted a termination letter despite blood-lead levels for Davontae Davis ranging from 17 to 10. Again, these blood-lead levels were sufficient to be viable for suit.

In the case of Lavontre Ford, et al., Mr. Kazmierczak again found no case summary in the file, and Respondent had drafted a termination letter to the file. Again, a review of the electronic back-up revealed blood-lead levels ranging from 9 to 12 for Lavontre Ford and 8 to 3 for Michaela Harris. Respondent had prepared a draft complaint inconsistent with the termination letter he placed in the file. In addition, the electronic back-up revealed a letter Respondent had sent to the owner of the subject property requesting permission for an environmental testing of the property—a letter that, according to Mr. Kazmierczak, would not have been drafted unless the case was considered to be viable for suit.

In the Shaquille Davis file, the case summary generated by Respondent indicated no blood-lead levels for the children and Respondent had placed a termination letter in the file....