Maryland Clarifies Dishonesty Sanctions
The Maryland Court of Appeals has issued a significant decision on sanctions for dishonest conduct in an extensive opinion that seeks to harmonize past decisions
Given this long line of cases in which we have not imposed the sanction of disbarment, it is time to expressly recognize that our holding in Vanderlinde no longer exclusively sets the standard for imposition of the sanction in cases involving intentional dishonesty. As these cases readily demonstrate, in numerous attorney disciplinary cases involving intentional dishonesty under MARPC 8.4(c) and knowingly making false statements under MARPC 3.3(a)(1) and 8.1(a), we have not imposed a sanction of disbarment and have not found the existence of compelling extenuating circumstances to be the “root cause” of the misconduct at issue to warrant a lesser sanction or even considered the matter. In other words, these cases demonstrate that we have not in cases involving intentional dishonest conduct consistently applied our holding in Vanderlinde and required compelling extenuating circumstances to justify a sanction less than disbarment.
What can be gleaned from the sanctions imposed in cases involving intentional dishonesty post-Vanderlinde in recent years, is that, increasingly, we have not imposed the sanction of disbarment where the dishonest conduct at issue does not involve theft, fraud, harm to a client or third party, or the intentional misappropriation of funds. We have on multiple occasions imposed a sanction less than disbarment in cases involving intentional dishonest conduct where there was no theft or intentional misappropriation of funds by the attorney, the attorney had not benefitted or profited from the misconduct, and no client had been harmed. Going forward, it is clear that cases involving dishonesty and knowingly made false statements will be assessed on an individual basis to determine whether the misconduct at issue gives rise to deployment of the standard set forth in Vanderlinde, namely, whether compelling extenuating circumstances that are the “root cause” of the misconduct are required to warrant a sanction less than disbarment.
Indefinite suspension rather than disbarment in light of the lack of harm
In this case, we conclude that, although Collins was found to have engaged in intentional dishonest conduct by making obvious and inexplicably false statements in a petition for reinstatement and by failing to acknowledge correspondence from Bar Counsel concerning a complaint that was ultimately dismissed, given the nature of the violations of the MARPC, the lack of harm to any client, and the circumstance that the case does not involve theft, misappropriation of client funds, or other pecuniary benefit to Collins, the appropriate sanction for Collins’s misconduct is an indefinite suspension. Considering the nature and circumstances of the false statements, as well as recent case law in which we have not consistently imposed the sanction of disbarment for misconduct involving intentional dishonesty, and that we now expressly recognize that the Vanderlinde standard is not implicated in all instances of intentional dishonesty, Collins’s misconduct does not warrant disbarment. Collins’s misconduct did not involve circumstances for which we have generally applied the Vanderlinde standard, for instance, theft, fraud, intentional misappropriation, or harm to a client. Indeed, Collins’s misconduct has resulted in harm only to herself.
The court’s 2001 decision in Attorney Grievance Commission v. Vanderlinde imposed disbarment
There is no dispute about the facts of the misconduct. The respondent, over a period of time, while working outside of the profession of law, took (embezzled, stole, misappropriated) $3,880.67 from her employer, King’s Contrivance Community Association (Association). She used the money for her own purposes. The thefts continued even after she had given her employer notice that she would be resigning to accept a legal position with a law firm. She had replaced the monies by the time of the cessation of her employment, and her thefts initially remained undetected by her employer. At the hearing in the Circuit Court, she admitted that she had violated the provisions of Articles 8.4(a), 8.4(b), and 8.4(c) of the MRPC.
Given that respondent has freely acknowledged that on many occasions over a period of time she misappropriated money of the Association for her own use, the details or methods used by her to effect the thefts is not directly at issue, and it is not necessary that we describe those details. The case she presents to this Court in her defense goes exclusively to mitigating factors. Essentially, she asserts that the pressures of her life and the impairment of her mental faculties, including her periods of depression, mitigate against severe sanctions for the offenses she admits committing. Accordingly, we shall address those concerns, then discuss the history of the cases of this Court where similar problems have been proffered as mitigation in disciplinary matters. We shall then declare and reiterate once again the current position of the Court in respect to the appropriateness of using such matters to mitigate findings or sanctions in cases involving theft, misappropriation or other forms of dishonest conduct. Finally, we shall consider the sanctions to be imposed in this case in light of the positions declared and reiterated by the Court.
(Mike Frisch)