Attorney Grievance v. Whitehead

Citation890 A.2d 751,390 Md. 663
Decision Date20 January 2006
Docket NumberMisc. Docket AG No. 17, September Term, 2005.
PartiesATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. H. Allen WHITEHEAD.
CourtCourt of Special Appeals of Maryland

Delores Dorsainvil, Asst. Bar Counsel (Melvin Hirshman, Bar Counsel for the Atty. Grievance Com'n of MD), for Petitioner.

Peter F. Axelrad of Council, Baradel, Kosmerl & Nolan, P.A., Annapolis, for Respondent.

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

CATHELL, Judge.

H. Allen Whitehead, respondent, was disbarred by the District of Columbia Court of Appeals, based upon respondent's consent. Bar Counsel, on behalf of the Attorney Grievance Commission, petitioner, pursuant to Maryland Rule 16-773(b),1 and based on the misconduct for which respondent was disbarred in the District of Columbia filed a Petition for Disciplinary or Remedial Action against respondent for violation of the Maryland Rules of Professional Conduct (MRPC).2 The petition alleged that the respondent unethically and unprofessionally violated MRPC 8.4 and 1.15.3 Petitioner also alleged that respondent violated Maryland Rules 16-609 and Maryland Code (1989, 2004 Repl. Vol.), §§ 10-306 and 10-307 of the Business Occupations and Professions Article. On June 16, 2005, this Court issued a Show Cause Order pursuant to Maryland Rule 16-773(c).4 Both parties filed their responses to the Show Cause Order and oral arguments were heard on December 5, 2005. Petitioner asked this Court to impose a "reciprocal"5 sanction and disbar respondent. Respondent argued that, under Maryland law, suspension was the appropriate sanction for his conduct.

I. Facts

Respondent was admitted as a member of the Bar of this Court on December 1, 1973. He practiced in Maryland and the District of Columbia until 1999, when he moved to New York. Throughout his legal career, respondent has concentrated in estate and trusts law. In December of 1998, he became involved in the District of Columbia in the administration of the proceeds from a medical malpractice settlement. Then, in September of 1999, he was appointed as the Conservator of those funds.6

Upon allegations that respondent had paid legal fees to himself in the amount of $40,200.00 for his services in that case without prior court approval, he was removed from his post.7 As a result of his conduct, the District of Columbia Bar Counsel initiated proceedings against respondent. Respondent represented himself during the disciplinary proceedings and, according to him, was led to believe that the infraction subjected him to automatic disbarment in the District of Columbia. Accordingly, respondent filed an affidavit consenting to disbarment from the Bar of the District of Columbia. In that affidavit, respondent admitted to taking the fees prior to court approval and stated that the fees were reimbursed. The District of Columbia Court of Appeals, on consideration of the affidavit, a report and recommendation from the Board on Professional Responsibility, and a letter from Bar Counsel, disbarred respondent by consent.

II. Discussion

"Reciprocal" discipline cases are adjudicated according to Maryland Rule 16-773. Under subsection (b), "[u]pon receiving and verifying information from any source that in another jurisdiction an attorney has been disciplined . . ., Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals pursuant to Rule 16-751(a)(2)."8 The Court, then, issues a show cause order as required by subsection (c). After the parties respond to the show cause order, the Court "may immediately impose corresponding discipline," assign the matter to a judge for a hearing, or enter "any other appropriate order." Rule 16-773(f) (emphasis added). This subsection, entitled "Action by Court of Appeals," makes it clear that it is within the Court's discretion as to which sanction should be imposed upon the attorney. The rule states that the Court may impose "corresponding discipline," not that it shall impose "identical discipline."

In making a determination in "reciprocal" disciplinary cases, this Court generally gives deference to the factual findings of the original jurisdiction:

"(g) Conclusive effect of adjudication. Except as provided in subsections (e)(1) and (e)(2) of this Rule, a final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional misconduct or is incapacitated is conclusive evidence of that misconduct or incapacity in any proceeding under this Chapter. The introduction of such evidence does not preclude the Commission or Bar Counsel from introducing additional evidence or preclude the attorney from introducing evidence or otherwise showing cause why no discipline or lesser discipline should be imposed."

Rule 16-773(g); see also Attorney Grievance Comm'n v. Weiss, 389 Md. 531, 886 A.2d 606 (2005); Attorney Grievance Comm'n v. Scroggs, 387 Md. 238, 249, 874 A.2d 985, 992 (2005); Attorney Grievance Comm'n v. Ayres-Fountain, 379 Md. 44, 56, 838 A.2d 1238, 1245 (2003); Attorney Grievance Comm'n v. Cafferty, 376 Md. 700, 703, 831 A.2d 1042, 1045-46 (2003).

In the case sub judice, the only factual finding by the District of Columbia Court of Appeals is contained in the order of disbarment by consent. The order states that the sanction is based upon respondent's affidavit in which he stated: "I was appointed as Conservator, I took fees (which later were reimbursed) prior to Court approval." In keeping with the general spirit of Rule 16-773(g) we accept the District of Columbia Court of Appeals' finding that respondent violated the rules of professional conduct by taking fees without prior court approval. We must, however, determine whether the sanction imposed by the District of Columbia Court of Appeals is appropriate under the circumstances of this case, especially since in this Court, the attorney has not consented to disbarment.

A. Reciprocal Discipline Sanctions

Maryland Rule 16-773(e) is titled "exceptional circumstances," it provides that "[r]eciprocal discipline shall not be ordered if Bar Counsel or the attorney demonstrates by clear and convincing evidence" any of five different conditions. Rule 16-773(e) (emphasis added).9 It does not define the term "reciprocal discipline" as to whether it refers to process, findings, sanctions, or all three. The use of the language "shall not be ordered" does not imply that, in the absence of any of the five exceptions, the Court shall find that the same sanction must be imposed even if the findings of the foreign court as to misconduct are accepted. To the contrary, this language reads so as to limit the ability of this Court to rely solely on the original jurisdiction's findings as to misconduct when any of the enumerated exceptions are met. If Bar Counsel — or the sanctioned attorney — provides sufficient evidence showing that one or more of the exceptions exist, the Court cannot use its discretion as to whether to accept the findings as to misconduct and to impose a corresponding (but not necessarily the same) sanction, or a different sanction all together. If these exceptions exist, the court cannot rely exclusively on the findings of the foreign jurisdiction and cannot summarily impose the same discipline. If, however, none of the exceptions exist the court may do so.

In further interpreting the meaning of subsection (e), we must evaluate it in the context of the entire Rule 16-773. Subsection (b) provides that Bar Counsel "may" file a petition upon learning that an attorney has been disciplined in another state. Under subsection (d) the Court "may" suspend the attorney from practice while the proceedings in Maryland are taking place. Then, under subsection (f), the Court "may immediately impose corresponding discipline," or it "may" assign the case for a hearing, or it "may enter any other appropriate order." None of these provisions provide any indication that the findings and the sanction of the foreign court are required to be accepted. Only subsections (a), (c), and (h) use the mandatory language "shall." Subsection (a) requires that the attorney "shall" inform Bar Counsel if he or she has been disciplined in another state; subsection (c) states that the Court "shall" issue a show cause order; subsection (h) orders that when the case is stayed in the original jurisdiction, any proceedings under the rule "shall" be stayed. Subsection (g), which establishes that an adjudication in another state is conclusive evidence of misconduct, does not relate to sanctions.

In light of the fact that the sections dealing with sanctioning the attorney, (b), (d), and (f), use the permissive language "may," it is reasonable to interpret the use of the language "shall not be ordered . . . if" to be read as permissive language also. Were that section to be read as requiring the Court to impose the same or equivalent sanction (if one exists) unless any of the circumstances in subsection (e) were present, it would render — at the very least — part of subsection (f) meaningless.

The rule specifically provides that the Court shall not impose the same sanction if "the conduct established . . . warrants substantially different discipline in this State." Rule 16-773(e)(4) (emphasis added). The most reasonable way to determine whether the attorney's conduct in another jurisdiction warrants substantially different discipline in this state is to review our own cases and determine which sanction would have been adequate had the case originated in this State. Weiss, 389 Md. at 548, 886 A.2d at 616.

This reading of the rule is consistent with practically every prior holding of this Court in "reciprocal" discipline cases. We have repeatedly stated that in these cases, we are prone, but not required, to impose the same sanction the original jurisdiction imposed. Weiss, 389 Md. at 546, 886 A.2d at 615.10 Furthermore, in "reciprocal" disci...

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