Attorney Grievance Comm. v. Scroggs

• Decision Date: 16 May 2005
• Docket Number: Misc. Docket AG No. 16
• Citation: 874 A.2d 985,387 Md. 238
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. R. Scott SCROGGS.
• Court: Maryland Court of Appeals

874 A.2d 985

387 Md. 238

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. R. Scott SCROGGS.

Misc. Docket AG No. 16, September Term, 2004.

Court of Appeals of Maryland.

May 16, 2005.

Melvin Hirshman, Bar Counsel for Atty. Grievance Com'n, for petitioner.

Robert Scott Scroggs, Rockville, for respondent.

Argued before BELL, C.J., RAKER, WILNER, CATHELL, HARRELL, BATTAGLIA and GREENE, JJ.

GREENE, J.

This is a reciprocal disciplinary action arising out of disciplinary proceedings initiated in Oklahoma, where respondent, R. Scott Scroggs¹, a member of that bar, practiced law. We are asked to decide the impact on Mr. Scroggs's privilege to practice law in Maryland as a result of the Supreme Court of Oklahoma's approval of respondent's resignation from the Oklahoma bar pending disciplinary proceedings.

Background

The Supreme Court of Oklahoma, in a previous disciplinary proceeding, suspended respondent from the practice of law for one year for violations of the Rules of Professional Conduct. State ex rel. Oklahoma Bar Ass'n v. R. Scott Scroggs, 70 P.3d 821 (2003) (petition for rehearing pending). While additional disciplinary proceedings were pending in Oklahoma, the complainant in those proceedings, the Oklahoma Bar Association, applied for an order approving the resignation of the respondent, R. Scott Scroggs, pending disciplinary proceedings. In conjunction with the action taken by the Bar Association, respondent filed in the same proceedings an Affidavit of Resignation from membership in the Oklahoma bar pending disciplinary proceedings. The Supreme Court of Oklahoma approved the application of the Bar Association and the resignation of R. Scott Scroggs. State ex rel. Oklahoma Bar Ass'n v. R. Scott Scroggs, 71 P.3d 15 (2003). Pursuant to Oklahoma law, Mr. Scroggs's resignation while disciplinary proceedings were pending is the equivalent of a disbarment. Scroggs, 71 P.3d at 17 (citing State ex rel. Oklahoma Bar Ass'n v. Bourland, 19 P.3d 289, 291 (2001)). In Oklahoma, "a lawyer resigning pending disciplinary proceedings may not make application for reinstatement prior to the expiration of five years from the date of the order approving the resignation." Id. citing State ex rel. Oklahoma Bar Ass'n v. Grunewald, 27 P.3d 482, 483 (2001); State ex rel. Oklahoma Bar Ass'n v. Redell, 38 P.3d 227, 228 (2001). In the order dated May 20, 2003, the Supreme Court of Oklahoma approved respondent's resignation, struck his name from the Roll of Attorneys, ordered that Mr. Scroggs could make no application for reinstatement to membership in the Oklahoma Bar Association before five years from the effective date of the court's order, and ordered him to repay with interest, to the Oklahoma Bar Association Clients' Security Trust Fund, any funds expended on his behalf.

Respondent's Affidavit of Resignation filed with the Supreme Court of Oklahoma asserted that "it was freely and voluntarily rendered; he was not subject to coercion or duress; and he was fully aware of the consequences of submitting the resignation." He also noted that he was suspended from the practice of law for one year in a previous case and that a petition for rehearing was pending. Respondent acknowledged that he was aware that the burden of proof rests upon the Bar Association in disciplinary proceedings, and that he waived any and all right to contest the allegations. In addition, Mr. Scroggs's resignation stated that a 25-page complaint was filed in the Supreme Court against him alleging misconduct for violation of Rules 1.1, 1.3, 1.4, 1.5(a) and (c), 1.15(a), (b) and (c), 1.16(d), 3.2, 8.1, and 8.4(c) of the Rules of Professional Conduct and Rule 5.2 of the Rules Governing Disciplinary Proceedings. He also acknowledged seven separate grievances filed with the Office of General Counsel against him for misconduct. Id. at 16. In addition to his acknowledgment of pending complaints, Mr. Scroggs stated in the affidavit that, "respondent is aware that allegations concerning his conduct, if proven, would constitute violations of the ... [Rules of Professional Conduct and the Rules Governing Disciplinary Proceedings]...."

On May 26, 2004, The Attorney Grievance Commission of Maryland (hereinafter "Bar Counsel"), acting pursuant to Rules 16-751² and 16-773³ of the Md. Rules, filed a Petition for Disciplinary or Remedial Action against Mr. Scroggs to which a certified copy of the Oklahoma Supreme Court's Order Approving Resignation Pending Disciplinary Proceedings and Order Suspending Respondent from the Practice of Law for One Year were attached. In the Petition, Bar Counsel alleged that respondent is subject to the disciplinary authority of this State pursuant to Maryland Rule 16-701 and charged that respondent engaged in misconduct as defined therein, specifically, failing to report his discipline in Oklahoma to Bar Counsel in violation of Maryland Rule 16-773(a), and MRPC 1.1 (Competence)⁴, 1.2 (Scope of Representation)⁵, 1.3 (Diligence)⁶, 1.4 (Communication)⁷, 1.5 (Fees)⁸, 1.15 (Safekeeping Property)⁹, 1.16 (Declining or Terminating Representation)¹⁰, 3.2 (Expediting Litigation)¹¹, 8.1 (Bar Admission and Disciplinary Matters)¹², and 8.4 (Misconduct)¹³.

This Court issued three Show Cause Orders directing personal service on the respondent on or before a date certain and directing respondent to show cause in writing based upon any of the grounds set forth in Maryland Rule 16-773(e) why disbarment should not be imposed by this Court. Bar Counsel contends that it was unable to serve Mr. Scroggs personally. Thus it was necessary to serve notice on respondent's agent, the Client Protection Fund of the Bar of Maryland pursuant to Rule 16-753¹⁴.

On November 8, 2004, respondent filed a written response to the order to show cause served upon the Client Protection Fund. In his response, respondent asserts that the Petition for Disciplinary or Remedial Action and Show Cause Order were never personally served on him and that Rule 16-754¹⁵ is not applicable because Rule 16-753 requires reasonable efforts to serve process and one attempt at personal service was not reasonable in this case. We will address the issue of service of the orders to show cause later in this opinion.

Discussion

In our review of the Petition for Disciplinary or Remedial Action and Respondent's Response To A Show Cause Order, we are guided by Maryland Rule 16-773. Pursuant to Rule 16-773(a) an attorney who in another jurisdiction is disbarred, suspended, or resigns from the bar while disciplinary or remedial action is threatened or pending in that jurisdiction shall inform Bar Counsel promptly of the discipline, resignation, or inactive status. Section (c) of Rule 16-773 requires that, after a petition and certified copy of a disciplinary or remedial order have been filed, the Court must order that Bar Counsel and the attorney "show cause in writing based upon any grounds set forth in section (e) of this Rule why corresponding discipline" should not be imposed. Specifically, 16-773(e) provides:

Reciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence that: (1) the procedure was so lacking in notice or opportunity to be heard as to constitute a deprivation of due process; (2) there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that the Court, consistent with its duty, cannot accept as final the determination of misconduct; (3) the imposition of corresponding discipline would result in grave injustice; (4) the conduct established does not constitute misconduct in this State or it warrants substantially different discipline in this State; or (5) the reason for inactive status no longer exists.

Rule 16-773(g), provides in relevant part that: "A final adjudication in a disciplinary or remedial proceeding by another court... is conclusive evidence of that misconduct...." Atty. Griev. Comm'n v. Roberson, 373 Md. 328, 818 A.2d 1059 (2003) (a challenge to the original adjudication in reciprocal discipline actions is limited to notice and opportunity to be heard or infirmity of proof). We have recognized in reciprocal disciplinary cases that a respondent is not allowed, other than as provided by our rules, to collaterally attack either the findings of fact or the judgment rendered by the original jurisdiction. Atty. Griev. Comn'n v. Sabghir, 350 Md. 67, 81, 710 A.2d 926, 932-33(1998).

Although respondent fails to raise any of the exceptional circumstances outlined in Rule 16-773(e), his assault on the Oklahoma disciplinary proceedings is launched on several fronts. First, he contends that although the Supreme Court of Oklahoma issued an order suspending him from the practice of law for one year, the filing of his petition for reconsideration automatically suspended that order. Second, he posits that the orders issued by the Supreme Court of Oklahoma on March 4, 2003 (suspension) and May 20, 2003 (order approving resignation) were not remedial or disciplinary orders. Respondent reasons that an order approving an attorney's resignation from the practice of law is not "a disciplinary or remedial order." In addition, although acknowledging that resignation pending disciplinary proceedings is tantamount to a disbarment in Oklahoma, his view is that that statement of the law refers only to the procedural similarities in applying for readmission to the bar. Third, respondent asserts that in the order of resignation, the Supreme Court of Oklahoma made no findings of fact as to the allegations against him. Thus, the allegations stated in the order approving his resignation were never subjected to court review. Moreover, he argues that Rule 16-773 was not intended to cover resignations pending disciplinary proceedings because that type of proceeding does not result in an order to disbar, thus, the show cause order we issued was improper. Finally, respondent contends he was never properly...