From Maine To Maryland

The Maryland Court of Appeals has imposed a reprimand as reciprocal discipline for misconduct that had resulted in a warning and reprimand in Maine.

In Maryland, a hearing is held before a circuit judge in reciprocal matters. Here, the court majority rejected a finding by the circuit judge that the attorney engaged in dishonest conduct.

Without doubt, those violations are serious. Moreover, Respondent is an experienced attorney, practicing in the areas of tax law and the law relevant to the handling of estates. In addition, insofar as the record reflects, Respondent did not advance a reasonable explanation for the delay in filing the estate tax return on behalf of the Estate. Nevertheless, we accord significant credit to the facts that Respondent, evidently, has no prior record of discipline; for the reasons we have explained, there is no evidence that any of Respondent’s actions in connection with this matter were prompted by an improper motive; he selfreported his error to the Overseers of the Bar of Maine; he made a commitment to repay the Estate for any monetary loss incurred as a result of his error; and, once that sum was agreed upon, he made the Estate whole. These facts, considered in their totality, lead us to conclude that a reprimand is the appropriate sanction for Respondent’s misconduct.

A dissent would sustain the circuit judge and raise the sanction to an indefinite suspension

[A] final adjudication in a disciplinary or remedial proceeding by another court, agency, or tribunal that an attorney has been guilty of professional misconduct . . . is conclusive evidence of 773(g),

unless 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; [or] (2) there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that th[is] Court, consistent with its duty, cannot accept as final the determination of misconduct[.] Md. R. 16-773(e) (paragraph breaks omitted).

Instead of determining that there was such infirmity of proof establishing the misconduct as to give rise to a clear conviction that this Court, consistent with its duty, cannot accept as final Panel E’s determination of misconduct, the Majority simply sweeps Panel E’s determination of misconduct under the rug by positing that, “based on [the Majority’s] independent review of the record,” Adams did not violate MLRPC 8.4(c). Maj. Slip Op. at 18. As discussed above, even absent Panel E’s determination of misconduct and Maryland Rule 16-773(g)’s presumption that the same is conclusive evidence of that misconduct, clear and convincing evidence supports the hearing judge’s conclusion that Adams violated MLRPC 8.4(c).

I think that the dissenters are correct that the Maine rule violations should not be rejected in a reciprocal proceeding.

I am less certain that the result of that conclusion is a greatly increased sanction. (Mike Frisch)