Attorney Grievance v. Parsons

• Decision Date: 15 April 2008
• Docket Number: Misc. Docket AG No. 58, Sept. Term, 2006.
• Citation: 946 A.2d 437,404 Md. 175
• Parties: ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. David Wayne PARSONS.
• Court: Court of Special Appeals of Maryland

946 A.2d 437

404 Md. 175

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. David Wayne PARSONS.

Misc. Docket AG No. 58, Sept. Term, 2006.

Court of Appeals of Maryland.

April 15, 2008.

Fletcher P. Thompson, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel, Atty. Grievance Com'n), for petitioner.

No argument on behalf of Respondent.

Argued before BELL, C.J., RAKER, HARRELL, BATTAGLIA, GREENE, ALAN M. WILNER (Retired, specially assigned) and DALE R. CATHELL (Retired, specially assigned), JJ.

BELL, C.J.

The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting pursuant to Maryland Rule 16-751,¹ filed a Petition For Disciplinary or Remedial Action against David Wayne Parsons, the respondent. The petition charged that the respondent violated Rules 5.5, Unauthorized Practice of Law,² and 8.4, Misconduct,³ of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-812.⁴

We referred the case, pursuant to Rule 16-752(a),⁵ to the Honorable Pamela L North, of the Circuit Court for Anne Arundel County, for hearing pursuant to Rule 16-757(c).⁶ Although he properly was served with the petition by the petitioner, the respondent neither responded to the petition nor moved to vacate the Order of Default that the hearing court entered as a result of that failure. Following a hearing, at which testimony and documentary evidence were received and arguments offered, Judge North made findings of fact and drew conclusions of law, as follows (footnotes and citations to the record omitted):

"False Affidavit

"Respondent was admitted to the Maryland bar on November 1, 1979. . . . On April 4, 1997, the Maryland Court of Appeals issued a Decertification Order prohibiting Respondent from the further practice of law in Maryland. . . . The Court of Appeals notified Respondent of the decertification in a letter dated April 8, 1997. . . . Respondent was admitted to the practice of law in the District of Columbia on November 14, 1980. . . . He was suspended from the practice of law in the District of Columbia on December 2, 1991. . . .

"On December 23, 1999 (date of docketing), Respondent filed an Application for Leave to Appear Pro H[a]c Vice in the United States District Court in the Northern District of Illinois in the matter captioned Securities & Exchange Commission v. Barzilay, et al., Case No. 99C5023. . . . He requested permission to represent Oleg Feldman, Stanislus Kaminsky, and Garri Zhigun in that case. On the application, Respondent stated he was a member in good standing in Maryland, the District of Columbia, and the United States District Court [for the District of] Maryland. Respondent signed the application and declared `under the penalty of perjury that the foregoing is true and correct.' He signed the application on December 7, 1999.

"In evidence is a letter from Willard Knox (Knox) on the letterhead of Paduano & Weintraub, LLP to Philip J. Berkowitz, Esquire, counsel for the National Association of Security Dealers, Inc. (NASD). . . . Although nothing in the letter or on the letterhead specifically states so, it appears Knox was an attorney representing Respondent in his defense against a `Post Complaint Rule 8210 Request for Information' in an investigation of Respondent by the NASD. In the letter, Knox stated Respondent's apparent position that Respondent was unaware until early 2004 that he had been decertified in Maryland. However, Knox further stated that Respondent merely chose not to renew his membership in the District of Columbia bar because `it proved not to be worthwhile.' Ex. 1 (BC Ex.8). Respondent admitted the truth of BC Ex. 8.

"The Court finds Respondent, at a minimum, knew he was suspended from the practice of law in the District of Columbia when he filed his application for leave to appear pro h[a]c vice in December 1999. It is very likely Respondent also knew in December 1999 he was decertified in Maryland because the Court of Appeals sent Respondent a letter at his Maryland law office address advising him of the decertification. He knew the information contained in his application was false at the time of filing. Consequently, Respondent violated Maryland Rules of Professional Conduct 8.4(b), 8.4(c) and 8.4(d).

"In pertinent part Rule 8.4 states:

"It is professional misconduct for a lawyer to:

* * *

"(b) commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;

"(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;

"(d) engage in conduct that is prejudicial to the administration of justice[. . . .]

"Respondent violated the provisions of 28 U.S.C. § 1621 which in pertinent part [provides]:

"Whoever—

* * *

"(2) in any declaration, certificate, verification, or statement under penalty of perjury as permitted under section 1746 of title 28, United States Code, willfully subscribes as true any material matter which he does not believe to be true[,] is guilty of perjury.

. . .

"Respondent committed the crime of perjury and therefore `committ[ed a] criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects.' Rule 8.4(b)[.]

"Respondent misrepresented his status as a lawyer to the United States District Court, and made a false statement under the penalty of perjury, a violation of Rule 8.4(c). When Respondent falsely stated he was a member in good standing in the District of Columbia bar[,] he caused a United States District Court Judge, relying on Respondent's affirmation, to order on December 20, 1999, that Respondent be permitted to appear as counsel in that particular case. . . . The administration of justice requires all officers of the Court to speak truthfully in their professional capacities. Respondent's false statement on the application prevented the United States District Court Judge from ruling appropriately because he was misled by Respondent. Respondent's actions were, therefore, prejudicial to the administration of justice. He violated Rule 8.4(d).

"Unauthorized Practice of Law

"Rule 5.5. Unauthorized Practice of Law; Multijurisdictional Practice of Law. "(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction, or assist another in doing so.

Rule 5.5(a).

"Respondent was never admitted to practice law in any jurisdiction other than Maryland and the District of Columbia . . . . After April 4, 1997, the date of his Maryland decertification, Respondent was not licensed to practice law in any jurisdiction. ... Yet, in 2001, Respondent acted as legal counsel for DuPont Direct Financial Holdings, Inc. in New York ..., for FAB Securities ..., for FAB Capital ..., for Edward McCrann (McCrann) during McCrann's testimony in Washington, DC in 1999 during a NASD investigation ... and in numerous other cases between 1999 and 2001. . . . Further, his own statements before the NASD indicate he was practicing law . . . . Respondent's conduct violates Rule 5.5(a), which prohibits a lawyer from practicing law in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction. This Rule was in effect at all pertinent times. Respondent's conduct violates N.Y. Jud. Law, Article 15, Section 478, which provides in pertinent part as follows:

"It shall be unlawful for any natural person to practice or appear as an attorney-at-law or as an attorney and counselor-at-law for a person other than himself in a court of record in this state, or to furnish attorneys or counsel or an attorney and counsel to render legal services, or to hold himself out to the public as being entitled to practice law as aforesaid, or in any other manner, or to assume to be an attorney or counselor-at-law, or to assume, use, or advertise the title of lawyer, or attorney and counselor-at-law, or attorney-at-law or counselor-at-law, or attorney, or counselor, or attorney and counselor, or equivalent terms in any language, in such manner as to convey the impression that he is a legal practitioner of law or in any manner to advertise that he either alone or together with any other persons or person has, owns, conducts or maintains a law office or law and collection office, or office of any kind for the practice of law, without having first been duly and regularly licensed and admitted to practice law in the courts of record of his state, and without having taken the constitutional oath."

"The facts show that even though Respondent was not admitted in the State of New York, and did not have an active license to practice in any jurisdiction in the United States, he nonetheless held himself out as a general counsel to DuPont Direct Financial Holdings, Inc. and DuPont Securities Group, Inc. on numerous occasions and represented individuals and companies in arbitration proceedings on several occasions in New York and in other states. On one occasion, he represented parties in a court proceeding in the Northern District of Illinois. Respondent was clearly practicing law in New York and elsewhere without being licensed to do so. Because he did not have a current license in any jurisdiction, he cannot claim reliance, whether such reliance would be misplaced or not, on licensure in any jurisdiction outside of the State of New York. Therefore, Respondent violated Rule 5.5(a).

"Fraudulent Press Release

"On March 14, 2002, at 4:35 p.m. and on March 2002 at 12:27 a.m., DuPont Direct Financial Holdings, Inc., of which Respondent was president and general counsel, announced in a press release that monies under management by `Wavecount Asset Management, LLC (a wholly-owned subsidiary of DIRX [an abbreviation for DuPont Direct Financial Holdings, Inc.]) in conjunction with DIRX's investment affiliate, Native American Securities Company (a broker-dealer member of the NASD and SIPC) have exceeded $100 million.' . . . The statement in this press...