Disbarred After 59 Years; Reinstatement Denied

The Maryland Court of Appeals denied reinstatement to an attorney disbarred in 2007

Common sense also demonstrates the impropriety of Respondent’s action.   In the process of crafting a clever argument to prove that no conflict existed because the confidential information lost its confidential value, Respondent loses sight of a fundamental test by which these questions ought to be resolved.   The Comment to MRPC 1.9 reads, in relevant part:  “The underlying question is whether the lawyer was so involved in the matter that the subsequent representation can be justly regarded as a changing of sides in the matter in question.”   We are of the opinion that when Respondent filed a suit sounding in contract against a former client, an entity he created, over a business transaction he helped construct by creating the relevant documents now central to the contract suit, he effectively changed sides. 

The fact that Respondent joined the side of his former client’s former business partner (who he also represented in the disputed transaction) bodes worse, not better, for Respondent.   Were we to accept Respondent’s position on this question, we would be approving precisely the type of betrayal of confidence and fiduciary duty the Maryland Rules of Professional Conduct are designed to protect.   See Hughes v. McDaniel, 202 Md. 626, 633, 98 A.2d 1, 4 (1953) (“[T]he confidential and fiduciary relationship enables an attorney to exercise a very strong influence over his client and often affords him opportunities to obtain undue advantage by availing himself of the client’s necessities, credulity and liberality.”).   It does not take too vivid an imagination to perceive a situation where an attorney represents two parties who become embroiled in a controversy over a business transaction with one another.   Under Respondent’s view of what constitutes a conflict of interest, the attorney would be permitted to choose to represent the party he or she, in his or her professional judgment, stood the best chance of prevailing.   This type of fair-weather loyalty and former client poaching is forbidden;  an attorney may not abandon the duty not to harm a former client when circumstances make it expedient and/or self-serving to do so.   As the Comment to MRPC 1.9 says, in pertinent part:  “Information acquired by the lawyer in the course of representing a client may not subsequently be used by the lawyer to the disadvantage of the client.”

The court agreed that the conflict had not been waived and that the petitioner had acted dishonestly

The hearing judge found no mitigating circumstances.   With 59 years experience as a member of the Maryland Bar, Respondent should have appreciated the extent

(Mike Frisch)