Attorney Grievance Comm. v. Brisbon
Decision Date | 17 March 2005 |
Docket Number | Misc. Docket AG No. 60 |
Parties | ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Brenda C. BRISBON. |
Court | Maryland Court of Appeals |
John C. Broderick, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel for Atty. Grievance Com'n), for petitioner.
Argued before BELL, C.J., RAKER, WILNER, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE (retired, specially assigned), JJ.
The Attorney Grievance Commission of Maryland (the "Commission"), through Bar Counsel and pursuant to Maryland Rule 16-751,1 filed against Brenda C. Brisbon, the respondent, a Petition for Disciplinary Action, in which it was alleged that she violated Rules 1.3 (Diligence);2 1.4 (Communication);3 8.1 (Bar Admission and Disciplinary Matters)4 and 8.4 (Misconduct),5 of the Rules of Professional Conduct, Appendix: Rules of Professional Conduct of the Maryland Rules, see Maryland Rule 16-812. We referred the matter, pursuant to Rule 16-752(a),6 to the honorable Bonita J. Dancy of the circuit court for baltimore City, for hearing pursuant to Rule 16-757(c).7 The respondent having failed to respond to the Petition, an order of default, pursuant to Maryland Rule 2-613(b),8 was entered against her. Although notified, as required by Rule 2-613(c),9 that the order of default had been entered and despite indicating that she likely would do so, the respondent failed to move to vacate the order, as required by Rule 2-613(d).10 After the passage of more than 30 days, the hearing judge conducted a hearing, after which she issued a Memorandum of Findings of Fact and Conclusions of Law, making findings of fact and drawing conclusions of law, as follows:
The Complaint of Oretha Tenezee Bailey
The petitioner filed Petitioner's Exceptions and Recommendation For Sanction, in which it takes exception to the hearing court's failure to find that the respondent violated Rule 8.1(b), as alleged. It argues that the findings of fact support such a violation, pointing out that the hearing court detailed the letters sent to the respondent, seeking a response to the complaint filed by the complainant, and reported that the respondent conceded both receiving the letters and failing to respond to them. From those findings, the petitioner submits, the conclusion that the respondent violated Rule 8.1(b) necessarily follows.
We review the findings of fact made by the hearing court to determine if they are based on clear and convincing evidence. Attorney Griev. Comm'n v. Zdravkovich, 381 Md. 680, 694, 852 A.2d 82, 90 (2004); Attorney Griev. Comm'n v. McCoy, 369 Md. 226, 234, 798 A.2d 1132, 1137 (2002); Attorney Griev. Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992); Attorney Griev. Comm'n v. Clements, 319 Md. 289, 298, 572 A.2d 174, 179 (1990). See Md. Rule 16-759(b).11 Thus, and in fact, the "hearing court's findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous." Attorney Griev. Comm'n v. Ashworth, 381 Md. 561, 575, 851 A.2d 527, 535 (2004); Attorney Griev. Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) . Exceptions will be overruled when the findings are not clearly erroneous. McCoy, 369 Md. at 234-235, 798 A.2d at 1137.
The petitioner's exception with respect to the 8.1(b) violation is sustained. The petitioner is correct in that regard, the respondent has conceded the violation. There is ample evidence to support the other findings of fact made by the hearing court and, just as important, those factual findings justify the conclusions drawn from them.
With regard to sanction, the petitioner recommends that the respondent be indefinitely suspended from the practice of law. Revisiting the Rule violations charged and found, it submits:
"The serious consequences of Respondent's misconduct visited upon her client, compounded and aggravated by her failure to cooperate with the Petitioner militate[ ] the recommendation of an indefinite suspension of the Respondent from the practice of law."
It is now so well settled as not to require citation of authority, that the purpose of attorney disciplinary proceedings is to protect the public and not to punish the erring attorney. We have also been clear, the public is protected when the Court imposes sanctions commensurate with the nature and gravity of the violations and the intent with which they were committed. Attorney Griev. Comm'n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). Thus, the facts and circumstances of a given case are critical in the decision whether to impose a sanction and, if so, what sanction. That decision, we have said, is informed and guided, however, by certain factors....
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