Attorney Grievance Comm'n of Md. v. Stillwell

• Citation: 73 A.3d 243,434 Md. 69
• Decision Date: 22 August 2013
• Docket Number: Sept. Term, 2009.,Misc. Docket AG No. 43
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Garland Howe STILLWELL.
• Court: Court of Appeals of Maryland

434 Md. 69

73 A.3d 243

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND

v.Garland Howe STILLWELL.

Misc. Docket AG No. 43, Sept. Term, 2009.

Court of Appeals of Maryland.

Aug. 22, 2013.

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

William C. Brennan, Jr. (of Brennan Sullivan & McKenna LLP, Greenbelt, MD), for respondent.

Argued before BARBERA, C.J., BATTAGLIA, GREENE, ADKINS, BELL ^*, MURPHY ^** and JOHN C. ELDRIDGE (retired, specially assigned), JJ.

BELL, C. J.

Garland Howe Stillwell, the respondent, by order of the District of Columbia Court of Appeals, dated August 27, 2009, was suspended from the practice of law in the District of Columbia. The Attorney Grievance Commission, the petitioner, pursuant to Maryland Rule 16–773(b),¹ and acting through Bar Counsel, filed, in this Court, a petition for disciplinary or remedial action, based on the misconduct for which the respondent was suspended in the District of Columbia, against the respondent. Citing the opinion of the District of Columbia Court of Appeals, noting particularly its recitation of the Rules the respondent admitted violating, and alleging that the professional misconduct that those violations constituted and for which the respondent was disciplined was also professional misconduct in Maryland, it requested this Court, inter alia, to issue a Show Cause Order and to take appropriate disciplinary action. This Court issued the requested Show Cause Order pursuant to Maryland Rule 16–773(c)² and, after both parties filed their responses to the Show Cause Order, heard oral argument.

The underlying basis of these proceedings is the respondent's admission that he violated Rules 8.4(c)³ and 1.7(b)(1)⁴of the District of Columbia Rules of Professional Conduct (DCRPC). The misconduct underlying those Rules violations consisted of “... inaccurately represent[ing] his status at the law firm where he was employed, ma[king] a false representation on behalf of a friend, improperly charg[ing] personal expenses to others, work [ing] outside the law firm against the law firm's written policies, and assert [ing] a position on behalf of clients that was adverse to a position taken by a client of the firm without first obtaining informed consent of all parties.” The respondent's voluntary admissions were made upon advice of counsel and in connection with a petition for negotiated discipline and were reflected in that portion of the petition setting forth the parties' stipulation of facts and charges and supported by the respondent's affidavit. The petition for negotiated discipline stated the “agreed upon sanction,” a 60 day suspension with no fitness requirement, and justification for that sanction in the form of a review of the relevant precedents with respect to the range of sanctions the District of Columbia Court of Appeals has imposed for similar professional misconduct. Also pertinent to the appropriateness of the sanction, the petition set forth the parties' agreement as to aggravating as well as factors mitigating:

“An aggravating factor is the prejudice to Respondent's law firm, which absorbed some of Respondent's personal expenses under false pretenses, and did not seek to recover the full amount in reimbursement from Respondent. The dishonest nature of Respondent's conduct is also an aggravating factor.

“In mitigation, Respondent has acknowledged that he engaged in the misconduct described above, has taken full responsibility for his actions, reimbursed the law firm for the amount it sought, has undergone professional counseling to prevent such ethical lapses from recurring, and has no history of discipline.”

The petition for negotiated discipline was referred to a hearing committee of the Board of Professional Conduct, which, after considering the petition, including the statement of relevant precedent in support of the agreed upon sanction submitted by Bar Counsel, the supporting affidavit filed by the respondent, and “the representations made during the limited hearing by Respondent and Bar Counsel,” made findings and issued its report recommending approval of the petition for negotiated discipline. In deciding to recommend approval of the negotiated discipline, the hearing committee considered, as it was required to do, whether the admissions of the respondent were knowing and voluntary, whether the facts, as related in the petition or shown during a limited hearing support the admissions and the agreed upon sanction and whether the agreed upon sanction is appropriate, justified by the facts and circumstances. As to the latter factor, characterized by the hearing committee as the most complicated of the three, it wrote:

“Upon consideration of the entire record in this matter, including the circumstances in aggravation and mitigation and the relevant precedent, we conclude that the agreed upon negotiated discipline is justified. As described in the relevant precedent section of the Petition, the range of sanctions for Respondent's multiple violations is a nonsuspensory sanction to disbarment.... In this instance, Respondent has stated convincing factors in mitigation of his offense and has no history of discipline. He is charged with only two offenses during a relatively short period of time. The Hearing Committee is satisfied the Respondent is sincere in his regret and has taken steps to remedy his violations and prevent recurrences.”

The District of Columbia Court of Appeals accepted the recommendation. In doing so, it commented: “The respondent has accepted responsibility for his actions, repaid all monies owed and undertaken action to prevent future lapses.”

As indicated, this Court issued a Show Cause Order, to which both the petitioner and the respondent filed a response. Not unexpectedly, the respondent answers that he “has no grounds, as set forth in Maryland Rule 16–773(e), why corresponding discipline should not be imposed by this Court.” Proffering that the imposition of reciprocal discipline in this case “ would be consistent with this Court's cases that hold, and emphasize, that “ [t]he primary purpose of attorney discipline is the protection of the public, not the punishment of the attorney,” he therefore urges the Court to impose corresponding discipline. Moreover, citing Attorney Griev. Comm'n v. Whitehead, 390 Md. 663, 683, 890 A.2d 751, 763 (2006) and Attorney Griev. Comm'n v. Weiss, 389 Md. 531, 544, 886 A.2d 606, 613 (2005), the respondent submits, “Maryland deviates from sanctions imposed by sister jurisdictions when the Maryland cases clearly demonstrate that the misconduct warrants a substantially different disposition.” He argues that this is not a case in which a substantially different sanction is warranted, as clearly demonstrated by our cases; therefore, we should adhere to well-settled and well reasoned principles of comity and follow the lead of the District of Columbia Court of Appeals.

As predictably, the petitioner, in its answer, urges, and makes the case for, a substantially different sanction than the one imposed by the District of Columbia. Citing the rule in this State, that, when considering reciprocal discipline cases, the Court “is inclined, but not required, to impose the same sanction as that imposed by the state in which the misconduct occurred, the petitioner notes that this Court is required to assess for itself the propriety of the sanction imposed by the other jurisdiction and that recommended by the Commission”, see Weiss, 389 Md. at 546, 886 A.2d at 615;Attorney Griev. Comm'n v. Scroggs, 387 Md. 238, 254, 874 A.2d 985, 995 (2005), see also Whitehead, 390 Md. at 672, 890 A.2d at 756 (applying the same test when the sanction imposed by this Court is less than that imposed by the sister jurisdiction), and that, while the Court “usually [does] not deviate from the original jurisdiction's sanction, [it] will do so when the conduct involved is of such nature that it would not be tolerated from any member of the Bar in this State if the conduct occurred here,” Weiss, 389 Md. at 552, 886 A.2d at 618. Consistent with this observation,the petitioner argues that the misconduct of the respondent in this case warrants more than a 60 day suspension.

To make its case, in this regard, the petitioner emphasizes the stipulations of fact relevant to the Rule 8.4(c) violation:

“1. For some period of time while he was an associate attorney at the law firm of Pillsbury Winthrop Shaw Pittman LLP (hereafter ‘the Firm’), Respondent's biography with the African American Real Estate Professionals Association (AAREP) identified him as ‘senior counsel’ at the Firm. Respondent did not immediately correct that inaccurate representation of his status after the Firm informed him in January 2008 that he needed to do so....

“2. In August 2006, ‘Respondent used Firm equipment to prepare and send a false employment verification’ on behalf of a personal friend to a car dealer. In that verification, Respondent, knowing that the individual (identified as ‘TB’) had only worked for the Firm as a receptionist for approximately two weeks in June 2006, falsely asserted ‘that she was still employed at the Firm and had been since August 2005.’...

“3. In 2007, ‘Respondent used the Form's word processing staff to prepare a resume for TB falsely indicating that TB had been employed with the Firm from August 2005 until July 2007.’ On the resume prepared for TB, Respondent falsely listed himself as ‘Senior counsel’ to the Firm....

“4. ‘While working a the Firm, Respondent charged a number of personal expenses to the law firm, to pro bono accounts, and to a client for whom Respondent did no legal work.’ This conduct included reassigning ‘as much as $ 5,000 worth of cell phone and text message charges to clients, professional activities, and business development, even though some of the charges were personal in nature,....’

“5. Contrary to the Firm's written...