Two Strikes And Out

The Maryland Court of Appeals has accepted the consent disbarment of an attorney who admitted multiple ethics violations.

Law360 reported on this January 2015 opinion of the court imposing indefinite suspension

A Maryland attorney who lied to his client for years and eventually fabricated a phony settlement after botching her medical malpractice case escaped disbarment on Friday after a divided appellate court ordered that he be indefinitely suspended. 

Despite finding he had committed a laundry list of professional conduct violations, the Court of Appeals of Maryland stopped short of granting the state attorney grievance commission’s recommendation that attorney Eugene Alan Shapiro be disbarred.

Shapiro stood accused of failing to preserve client Diana Wisniewski’s medical malpractice claim from statutory expiration, then continuously lying to her over the next five years about the status of her case. He subsequently concocted a bogus settlement that he unsuccessfully tried to pay out of his own pocket, all while failing to direct Wisniewski to obtain independent counsel once he realized she would have a malpractice claim against him, according to the order.

The decision came over the dissent of two members of the seven-judge panel, who argued that Shapiro’s lies constituted a pattern of deceitful conduct rather than an isolated incident, and should therefore result in his disbarment.

“Although Shapiro’s violations do not involve multiple clients and cases, his misconduct spans a multiple-year period,” the dissent said. “Respondent only told Wisniewski the truth about her case — that it had been dismissed, that the statute of limitations had passed, and that no settlement occurred — after she filed a complaint with the Attorney Grievance Commission.”

The case began in 2004, when Wisniewski underwent knee surgery at St. Agnes Hospital that ostensibly resulted in an infection, leading her to retain Shapiro in pursuit of a medical malpractice claim, according to the opinion.

Shapiro claims he then forwarded her medical records to several outside medical experts, but had difficulty obtaining a certificate of merit. He subsequently filed Wisniewski’s claim with the Health Claims Arbitration Office, but the case was dismissed because it did not include a certificate to support the claim, the order said.

By this point, the statute of limitations on Wisniewski’s cause of action had expired. Although Shapiro admits that he failed to inform his client of either the dismissal or the expiration of her claim, he continued to represent her despite the conflict of interest his deception had created, the order said.

In the fall of 2012, Shapiro concocted a bogus story about a settlement in an apparent bid to cover his tracks, but when he failed to produce Wisniewski’s share of the supposed deal she filed a complaint with the Attorney Grievance Commission of Maryland, according to the order.

In response to that complaint, Shapiro put together a handwritten “settlement agreement” promising to pay her $12,500, followed by monthly payments that would total a combined $66,000 — the amount Shapiro alleges Wisniewski would have accepted in the event of an actual settlement in her medical malpractice claim, according to the order.

The court noted that despite his claims to the contrary, nowhere on Shapiro’s handwritten settlement agreement with Wisniewski was it indicated that he had advised her of her right to seek independent counsel.

In considering what punishment to dole out to Shapiro, the court noted that he had been the subject of a previous disciplinary reprimand regarding lapses in tax withholding, but also noted that Shapiro’s misdeeds did not necessarily appear to stem from dishonest or selfish motives.

“Not wishing to admit his mistakes to her, Shapiro created a lie that snowballed over time,” the order said.

(Mike Frisch)