Attorney Grievance Comm. v. Steinberg

• Decision Date: 18 March 2005
• Docket Number: Misc. Docket AG No. 6
• Citation: 870 A.2d 603,385 Md. 696
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Andrew M. STEINBERG.
• Court: Maryland Court of Appeals

870 A.2d 603

385 Md. 696

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Andrew M. STEINBERG.

Misc. Docket AG No. 6, September Term, 2004.

Court of Appeals of Maryland.

March 18, 2005.

Glenn M. Grossman, Deputy Bar Counsel (Melvin Hirshman, Bar Counsel for Atty. Grievance Com'n), for petitioner.

Andrew M. Steinberg, Washington, DC, for respondent.

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

BELL, C. J.

The Attorney Grievance Commission of Maryland (the "Commission"), through Bar Counsel and pursuant to Maryland Rule 16-751,¹ filed against Andrew M. Steinberg, the respondent, a Petition for Disciplinary or Remedial Action, in which it was alleged that he violated Rule 8.1 (Bar Admission and Disciplinary Matters)² and Rule 8.4 (Misconduct),³ 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),⁴ to the Honorable Eric M. Johnson of the Circuit Court for Montgomery County, for hearing pursuant to Rule 16-757(c).⁵ The respondent having failed to respond to the Petition, an order of default was entered against him. He subsequently appeared in court on August 25, 2004, the day set for the hearing and consented to the entry of a default judgment, which the hearing court construed as "essentially conceding to the allegations set forth in the petition." The respondent has not contested that construction. Thereafter, the court conducted a hearing.

Following the hearing, Judge Johnson, on October 7, 2004, having "tak[en] judicial notice of the pleading and the fact that the respondent essentially admitted the allegations as set forth," made findings of fact, by clear and convincing evidence, and drew conclusions of law. These proceedings are the result of disciplinary proceedings instituted against the respondent in the District of Columbia by the District of Columbia Bar's Board of Professional Responsibility. That Board determined that the respondent, by failing to respond to the District of Columbia Bar Counsel,⁶ had violated two of the District of Columbia's Rules of Professional Conduct, i.e., Rule 8.4(d) (conduct that seriously interfered with the administration of justice) and Rule 8.1(b) (failing to respond reasonably to a lawful demand for information from Bar Counsel, a disciplinary authority), and a rule of court, Rule XI, § 2(b)(3) (failing to comply with an order of the Board on Professional Responsibility issued in connection with disciplinary proceedings).

The predicate for the rule violations found was the respondent's failure to respond to a letter the District of Columbia Bar Counsel sent him. That letter, dated January 4, 2002, transmitted a disciplinary complaint that had been filed against the respondent and requested that he respond within ten days. Further, the letter warned that failure to respond was a violation of the Rules of Professional Conduct. The respondent did not respond to the letter, which was not returned. The letter was resent on January 28, 2002, this time, in addition to the complaint, transmitting a subpoena duces tecum. Again, it requested a response within ten days and indicated that the respondent had an obligation to respond to the complaint, a failure to do so being chargeable as a disciplinary violation. As before, the respondent did not respond.

Nor did the respondent timely respond after being personally served with the letter and the subpoena on February 13, 2002, with answer due February 23, 2002. Subsequently, on April 5, 2002, Bar Counsel obtained an order from the Board of Professional Responsibility, requiring the respondent to respond to the ethical complaint within ten days of the order, or by April 15, 2002, and, still, the respondent failed to respond, although, once again, he received the order that had been mailed to him. Bar Counsel's investigator served the respondent personally a second time, this time, on May 1, 2002, with the Board's April 5, 2002 order. The respondent did not file an answer to the Board's order until November 1, 2002, when he hand delivered a letter dated October 28, 2002 to the Board.

The hearing court concluded that the respondent, "by his actions and admissions ... unethically and unprofessionally violated Rule 8.1 [(b)] of the Bar Admission and Disciplinary Matters." It also concluded, albeit implicitly, that the respondent's conduct was prejudicial to the administration of justice, in violation of Rule 8.4(d).

No exceptions have been filed to the trial court's findings of fact and conclusions of law. Both the petitioner and the respondent have filed recommendations for sanction, however.

The petitioner recommends that the respondent be suspended indefinitely from the practice of law, a sanction the petitioner considers greater than that received by the respondent in the District of Columbia, where the misconduct occurred, and greater than ordinarily would be requested by the petitioner. In support of that recommendation, the petitioner directs our attention to the respondent's prior grievance history, which reflects that the respondent has engaged in prior misconduct, some, in particular, of a similar nature to that for which these proceedings were instituted. In 2000, the District of Columbia Court of Appeals, noting that he was "extremely dilatory in responding to Bar Counsel's requests for information on two separate but chronologically overlapping matters and failed to cooperate with the investigations," In Re Steinberg, 761 A.2d 279, 280 (D.C.2000), suspended the respondent for thirty days, and this Court reciprocated. Attorney Griev. Comm'n v. Steinberg, Misc. Docket (AG), No. 46, September Term, 2000 (Dec. 21, 2000). Subsequently, on April 17, 2001, the respondent was issued an informal admonition by the District of Columbia Bar Counsel for, in violation of Rule 1.4(a) of the Rules of Professional Conduct, failing to keep a client reasonably informed as to the status of the client's case and, earlier, in 1984, he had been issued an informal admonition for improperly distributing funds from a settlement, in violation of DR 9-103(B)(4) of the Code of Professional Responsibility.

The petitioner also relies on a Virginia reprimand, to which we reciprocated, Attorney Griev. Comm'n v. Steinberg, 348 Md. 1, 702 A.2d 690 (1997), that the respondent received for misconduct in violation of the Code of Professional Responsibility. That misconduct involved, the petitioner advises and our opinion reflects, neglect of a client's case, failure to deal honestly with the client, failing to return unearned fees and failing to turn the client's file over to new counsel. The District of Columbia Court of Appeals sanctioned the respondent for this same conduct by suspending him for thirty days. In Re Steinberg, 720 A.2d 900 (D.C.1998).

Finally, the petitioner calls our attention to what the District of Columbia Court of Appeals mostly recently said with respect to the respondent's dilatory conduct:

"Attorneys cannot be allowed to willfully ignore and frustrate the efforts of Bar Counsel ... to obtain responses to charges of serious ethical misconduct. Attorneys must know that if they choose this course of action, the consequences will be severe."

Steinberg, 761 A.2d at 280. The wisdom of that observation and the respondent's grievance history suffice to warrant the imposition of the sanction it recommends, the petitioner submits.

The respondent opposes an indefinite suspension, the sanction recommended by the petitioner and recommends the same sanction, a sixty (60) day suspension⁷, as that the District of Columbia Board of Professional Responsibility recommended to the District of Columbia Court of Appeals. Emphasizing his belief that the sanction he received from the District of Columbia is required to be imposed as the sanction of this Court, the respondent notes that, notwithstanding the District of Columbia court's observation with respect to the need for lawyers to be aware of the consequences of non-cooperation with Bar Counsel, the Court of Appeals did not impose an indefinite suspension, as the petitioner proposes.

The only issue to be resolved is, therefore, the appropriate sanction to be imposed in Maryland. The conduct that is the basis for the violations of the Rules of Professional Conduct found, occurred in the District of Columbia and is directly related to that court system's disciplinary structure and procedures. And the conduct resulted in a sanction being imposed by the District of Columbia Court of Appeals. Nevertheless, the petitioner did not initiate, or process, this case as a reciprocal discipline matter. Consequently, the rules applicable to reciprocal discipline cases do not apply. See Maryland Rule 16-773.⁸

The purpose of the sanction imposed on an attorney following disciplinary proceedings is to protect the public rather than to punish the attorney who engages in misconduct, and the decision as to sanction in a particular case does, and must, depend on the facts and circumstances of that case. E.g., Attorney Griev. Comm'n v. Macdougall, 384 Md. 271, 283, 863 A.2d 312, 320 (2004)

; Attorney Griev. Comm'n v. Santos, 370 Md. 77, 88-89, 803 A.2d 505, 511-12 (2002).⁹ Notwithstanding that the

petitioner has not sought reciprocal discipline, the facts and circumstances in this case, very important ones, at that, include that the conduct warranting sanction occurred in the District of Columbia and that, after considering the matter, the District of Columbia Court of Appeals has imposed a sanction.

Attorney Griev. Comm'n v. Ayres-Fountain, 379 Md. 44, 838 A.2d 1238 (2004) is instructive. In that case, the respondent was essentially a Delaware lawyer and the misrepresentations upon which the petitioner in this Court principally relied were made in certifications contained in annual filings required to be made to the Supreme Court of Delaware...