Sanction For False Statements In Maryland

A decision issued last week by the Maryland Court of Appeals suspended an attorney admitted in the District of Columbia but not Maryland and raised a question regarding sanctions for dishonest conduct.

These violations stemmed from Respondent’s representation of a former client in a family law matter and from Respondent’s failure to adequately safeguard client funds. Despite Respondent’s multiple rule violations, the Court found a number of mitigating factors that warranted sixty-day suspension as the appropriate sanction for Respondent’s misconduct

The court rejected a number of alleged aggravating factors

We do not find that Petitioner established the following aggravating factors by clear and convincing evidence: a dishonest or selfish motive; submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; bad faith obstruction of the attorney discipline proceeding; refusal to acknowledge the misconduct’s wrongful nature; indifference to rectifying the misconduct’s consequences; and likelihood of repetition of the misconduct. We find the existence of only one aggravating factor: multiple violations of the MARPC.

We find that Respondent established the following mitigating factors by a preponderance of the evidence: absence of a prior disciplinary record; absence of a  dishonest or selfish motive; and inexperience in the practice of law. Respondent, before this Court, admitted to mishandling client funds in violation of Rule 19-301.15 due to her inexperience. Respondent also admitted to opening and maintaining her attorney trust account and her post office box in Maryland rather than the District of Columbia due to errors attributable to her lack of experience as an attorney.

Judge Watts concurred in the judgment only.

He concluded that the attorney’s default established that she had made a false statement to Bar Counsel’s investigator regarding bankruptcy practice.

Nonetheless

That said, neither the hearing judge’s findings of fact, nor Bar Counsel’s allegations in the Petition for Disciplinary or Remedial Action, demonstrates that Thompson’s statement warrants disbarment. Obviously, when speaking with the investigator, Thompson knew that Bar Counsel could easily verify the fields in which she practiced— and Bar Counsel did exactly that. Thompson had nothing to gain by intentionally misrepresenting that she practiced bankruptcy law, rather than truthfully stating that she practiced immigration law. Both bankruptcy law and immigration law are governed by federal law; accordingly, regardless of whether Thompson practiced bankruptcy law or immigration law, she did not practice in a field that was governed by Maryland law. And, Bar Counsel did not allege that Thompson engaged in the unauthorized practice of Maryland law before Maryland courts; instead, Bar Counsel alleged that Thompson engaged in the unauthorized practice of law by having an office for the practice of law in Maryland.

Although the hearing judge reasoned that Thompson’s misrepresentation that she practiced bankruptcy law was an attempt to cover up her unauthorized practice of law, Bar Counsel verified that Thompson actually handled immigration cases; and, the handling of such cases would not have constituted the unauthorized practice of law in Maryland. The record is unclear as to why Thompson told the investigator that she handled bankruptcy cases and not immigration cases. But, in my view, it is clear that this is not the type of misrepresentation that would warrant disbarment. Thompson essentially told Bar Counsel’s investigator that she handled bankruptcy cases that would not constitute the unauthorized practice of law in Maryland, and, she in fact handled immigration cases that would not constitute the unauthorized practice of law. From my perspective, this is simply not the type of intentional dishonesty that would require “compelling extenuating circumstances” to excuse or that would warrant disbarment. See Attorney Grievance Comm’n v. Vanderlinde, 364 Md. 376, 418, 414,773 A.2d 463, 488, 485 (2001)(“Disbarment ordinarily should be the sanction for intentional dishonest conduct. . . . Only if the circumstances are [] compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of . . . dishonesty[.]”).

From my perspective, the Majority fails to make the point that Thompson’s conduct does not constitute the type of intentional dishonesty for which disbarment is warranted. Rather, the Majority Opinion suggests that there are mitigating factors that cause the sixty day suspension to be the appropriate sanction…

I fear that, in future attorney discipline proceedings, practitioners who have committed acts of intentional dishonesty will rely on the Majority Opinion for the proposition that their misconduct does not warrant disbarment by virtue of general mitigating factors, rather than compelling extenuating circumstances.

Video of the oral argument linked here. (Mike Frisch)