Attorney Grievance v. Guberman

• Decision Date: 13 April 2006
• Docket Number: Misc. Docket (Subtitle AG) No. 73, September Term, 2004.
• Citation: 392 Md. 131,896 A.2d 337
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mark S. GUBERMAN.
• Court: Court of Special Appeals of Maryland

Page 337

896 A.2d 337

392 Md. 131

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Mark S. GUBERMAN.

Misc. Docket (Subtitle AG) No. 73, September Term, 2004.

Court of Appeals of Maryland.

April 13, 2006.

James B. Botluk, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n), for petitioner.

Argued before BELL, C.J., WILNER, CATHELL, HARRELL, BATTAGLIA, GREENE and JOHN C. ELDRIDGE (Retired, Specially Assigned), JJ.

BELL, C.J.

Bar Counsel, acting with the approval and at the direction of the Attorney Grievance Commission of Maryland, the petitioner, see Maryland Rule 16-751,¹ filed a Petition For Disciplinary or Remedial Action against Mark S. Guberman, the respondent, charging him with violating Rule 8.4(c) and (d) (Misconduct)² of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812. We referred the case for hearing, pursuant to Rule 16-752,³ to the Honorable DeLawrence Beard of the Circuit Court for Montgomery County. The respondent answered the Petition, after which the matter was set for hearing. Following the hearing, the hearing court, pursuant to Rule 16-757(c),⁴ found the following facts to have been proven by clear and convincing evidence:

"The Respondent ... graduated from George Washington University Law School in 1995. He was admitted to the Bars of the District of Columbia and Pennsylvania. In 2001, Mr. Guberman was admitted to the Bar of the Court of Appeals of Maryland.

"Respondent was an employee of the Law Firm of Shulman, Rogers, Gandal, Pordy and Ecker, P.A. from September 12, 2000 to July 30, 2004. He worked in the firm's office in Rockville, Maryland, handling civil litigation. Ross D. Cooper, Esquire, supervised Mr. Guberman's work.

"The Shulman, Rogers firm represented Steven Reighard in two related matters. The first matter was filed in federal court in Virginia and resulted in a substantial recovery for Mr. Reighard. The second case was filed in the Circuit Court for Fairfax County, Virginia. That case alleged that the defendants had prepared a false and defamatory report, justifying Mr. Reighard's former employer to discharge him `for cause.' As a result, Mr. Reighard was deprived of a life insurance policy. Mr. Guberman was responsible for handling Mr. Reighard's case. An associate of the firm, Matthew Moore, Esquire, who was admitted to the Virginia Bar, was co-counsel and reviewed papers and pleadings prepared by Mr. Guberman regarding Mr. Reighard's case.

"The Circuit Court for Fairfax County granted summary judgment in favor of the defendants in June 2003, dismissing Mr. Reighard's complaint. Mr. Reighard advised Mr. Guberman that he did not want to appeal the case because he did not want to incur additional fees and expenses. Mr. Guberman discussed the matter with Mr. Cooper and Mr. Moore. Mr. Cooper instructed Mr. Guberman to tell Mr. Reighard that the firm would modify the fee arrangement if he pursued an appeal. Mr. Guberman did not convey that offer to Mr. Reighard.

"When Mr. Cooper later asked him about the status of the case, Mr. Guberman said he had filed a Notice of Appeal in the Circuit Court. In September 2003, Mr. Guberman told Mr. Cooper that he had filed a Petition For Appeal in the Supreme Court of Virginia. Mr. Guberman placed copies of these pleadings in the firm's file. Both copies bore what appeared to be file stamps indicating that the Clerk had received and filed the pleadings.

"Mr. Guberman submitted monthly status reports to the firms. The status report dated December 22, 2003 reported that he was `awaiting court's ruling on petition for appeal ...'. Mr. Cooper made further inquiries about the status of the appeal in early 2004. Around the end of May 2004, at the request of Mr. Cooper, Mr. Cooper's assistant, Jessica Stitely, watched Mr. Guberman call the court to check on the status of the case. Ms. Stitely was informed that the case was still pending.

"In July 2004, Mr. Cooper made inquiries with the Virginia courts and learned that the appeal had never been filed and that the filing receipt stamps were not genuine. When confronted by Mr. Cooper, Mr. Guberman acknowledged that he never filed the appeal. The firm terminated Mr. Guberman's employment on July 30, 2004.

"Mr. Reighard never authorized Mr. Guberman to file an appeal. He never was told by Mr. Guberman that an appeal had been filed."

From the foregoing facts, which it found, as indicated, by clear and convincing evidence, Attorney Griev. Comm'n v. Culver, 381 Md. 241, 265-266, 849 A.2d 423, 438 (2004), Rule 16-757(b),⁵ the hearing court drew conclusions of law, as follows:

"Mr. Guberman engaged in conduct involving dishonesty and misrepresentation in violation of Rule 8.4(c) of the Maryland Rules of Professional Responsibility by falsely representing to Mr. Cooper and other representatives of the Shulman, Rogers firm that he had filed an appeal in Mr. Reighard's case. He engaged in conduct prejudicial to the administration of justice by creating falsified filing stamps on papers, falsely certifying that the papers had been filed in court."

Neither the petitioner nor the respondent, who neither appeared nor participated in the proceedings in this Court, took exceptions to the hearing court's findings of fact or conclusions of law. The petitioner did file Petitioner's Recommendation For Sanction, in which it urged the respondent's disbarment. Emphasizing the hearing court's conclusion, based on its findings that the respondent prepared fictitious appellate pleadings, which he supported and certified as true by oral and written status reports, that the respondent, in violation of Rules 8.4(c) and (d), engaged in dishonest conduct and conduct prejudicial to the administration of justice, it relies on Attorney Griev. Comm'n v. Pennington, 387 Md. 565, 876 A.2d 642 (2005); Attorney Griev. Comm'n v. Lane, 367 Md. 633, 790 A.2d 621 (2002) and Attorney Griev. Comm'n v. Vanderlinde, 364 Md. 376, 773 A.2d 463 (2001).

It is well settled that it is the responsibility, indeed, the duty, of this Court "to uphold the highest standards of professional conduct and to protect the public from imposition by the unfit or unscrupulous practitioner." Rheb v. Bar Ass'n of Baltimore, 186 Md. 200, 205, 46 A.2d 289, 291 (1946). See Vanderlinde, 364 Md. at 387, 773 A.2d at 469; Attorney Griev. Comm'n of Maryland v. Post, 350 Md. 85, 96, 710 A.2d 935, 940 (1998); Attorney Griev. Comm'n of Maryland v. Protokowicz, 326 Md. 714, 716, 607 A.2d 33, 34 (1992); Maryland State Bar Ass'n, Inc. v. Agnew, 271 Md. 543, 549, 318 A.2d 811, 814 (1974); Fellner v. Bar Ass'n, 213 Md. 243, 247, 131 A.2d 729, 731 (1957); Braverman v. Bar Ass'n of Balto., 209 Md. 328, 343-345, 121 A.2d 473, 480-481 (1956); Klupt v. Bar Ass'n of Balto. City, 197 Md. 659, 664, 80 A.2d 912, 914 (1951) In re Meyerson, 190 Md. 671, 676, 59 A.2d 489, 490 (1948). In discharging that duty, "`[t]he question is whether, after the conduct of this man [or woman], it is proper that he [or she] should continue a member of a profession which should stand free from all suspicion.... It is not by way of punishment; but the courts, on such cases, exercise their discretion whether a man [or woman] whom they have formerly admitted is a proper person to be continued on the roll or not.'" Rheb, 186 Md. at 205, 46 A.2d at 291, quoting Ex parte Brounshall, 2 Cowp. 829 (1778). Moreover, it likewise is well settled that the courts have "the power and duty to consider the particular conduct of one who is an officer of the court, in relation to the privileges and duties of a public calling that specially invites complete trust and confidence." Attorney Griev. Comm'n v. DeMaio, 379 Md. 571, 581-82, 842 A.2d 802, 808 (2004); Rheb, 186 Md. at 204, 46 A.2d at 291.

Consequently, in protection of the public, the purpose of attorney discipline, see Attorney Griev. Comm'n v. Steinberg, 385 Md. 696, 703, 870 A.2d 603, 607 (2005); Attorney Griev. Comm'n v. Sperling, 380 Md. 180, 191, 844 A.2d 397, 404 (2004); Attorney Griev. Comm'n v. Ayres-Fountain, 379 Md. 44, 58, 838 A.2d 1238, 1246 (2003); Attorney Griev. Comm'n v. Myers, 333 Md. 440, 446, 635 A.2d 1315, 1318 (1994), we have held that disbarment follows as a matter of course "when a member of the bar is shown to be willfully dishonest for personal gain by means of fraud, deceit, cheating or like conduct, absent the most compelling extenuating circumstances..." Agnew, 271 Md. at 553-54, 318 A.2d at 817. To do otherwise, we concluded, "would constitute a travesty of our responsibility." Id. And, because "[c]andor and truthfulness are two of the most important moral character traits of a lawyer," see Attorney Griev. Comm'n v. Myers, 333 Md. at 449, 635 A.2d at 1319 (1994); Attorney Griev. Comm'n v. Levitt, 286 Md. 231, 238, 406 A.2d 1296, 1299 (1979); Fellner, 213 Md. at 247, 131 A.2d at 732; In re Meyerson, 190 Md. at 687, 59 A.2d at 496, deliberate and systematic conduct amounting at least to "fraud or deceit" has resulted in the imposition of the ultimate sanction of disbarment. Fellner, 213 Md. at 247, 131 A.2d at 731-732.⁶ So, too, have the failure to keep records, where that failure justified a finding of an intent to cheat, coupled with participation in a fraudulent stock scheme and to a breach of a confidential relationship. Rheb, 186 Md. at 209, 46 A.2d at 293. We have also ordered disbarment where an attorney, previously suspended for making misrepresentations, misrepresented his driving record during a traffic court trial at which he was charged with speeding. Myers, 333 Md. at 449, 635 A.2d at 1319.

The more recent cases, upon which the petitioner relies, are consistent and support the petitioner's position. In Pennington, having missed the filing deadline imposed by the statute of limitations, the respondent in that case, in lieu of informing the client of her dereliction, made "misrepresentation[s]" and engaged in "deceitful conduct" to conceal that, and how, she had...