Attorney Grievance Commission v. Shapiro , 441 Md. 367 ( 2015 )

Attorney Grievance Commission of Maryland v. Eugene Alan Shapiro, No. 83,
September Term, 2013
ATTORNEY MISCONDUCT—DISCIPLINE—INDEFINITE SUSPENSION
Court of Appeals suspended indefinitely attorney who did not protect adequately a
client’s claim from expiration as the result of the running of the statute of limitations,
failed to keep a client informed as to the status of her case, misrepresented the true status
of the claim to the client for five years, entered into a business transaction with a client
without advising the client in writing of the desirability of seeking independent counsel
first, and failed to withdraw immediately after learning of the potential cause of action
that his client may have had against him. Such conduct violated Maryland Lawyers’
Rules of Professional Conduct 1.2, 1.3, 1.4, 1.8, 1.16, and 8.4(a), (c) and (d).
Circuit Court for Baltimore County
Case No. 03-C-13-13179
Argued: 5 December 2014
IN THE COURT OF APPEALS OF
MARYLAND
Misc. Docket AG No. 83
September Term, 2013
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
EUGENE ALAN SHAPIRO
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Opinion by Harrell, J.
Battaglia and Watts, JJ., dissent.
Filed: January 30, 2015
I. STATEMENT OF THE CASE & PROCEDURAL HISTORY
In this attorney disciplinary action, the Attorney Grievance Commission of
Maryland (“Petitioner” or “the Commission”), acting through Bar Counsel, filed a
Petition for Disciplinary or Remedial Action (“PDRA”) against Eugene Alan Shapiro,
Esquire (“Respondent” or “Shapiro”), charging him with violations of the Maryland
Lawyers’ Rules of Professional Conduct (“MLRPC”) arising from his representation of
Diana Wisniewski (“Wisniewski”). Respondent was charged with violating MLRPC
1.2(a) (Scope of Representation and Allocation of Authority Between Client and
Lawyer),1 1.3 (Diligence),2 1.4 (Communication),3 1.8 (Conflict of Interest: Current
1
Rule 1.2(a) provides:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide
by a client’s decisions concerning the objectives of the
representation and, when appropriate, shall consult with the
client as to the means by which they are to be pursued. A
lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A
lawyer shall abide by a client’s decision whether to settle a
matter. . . .
Unless otherwise indicated, all Rule references in this opinion are to the Maryland
Lawyer’s Rules of Professional Conduct (“MLRPC”).
2
Rule 1.3 provides:
A lawyer shall act with reasonable diligence and promptness
in representing a client.
3
Rule 1.4 provides:
(a) A lawyer shall:
(Continued. . .)
Clients),4 1.16 (Declining or Terminating Representation),5 8.4(a), (c), and (d)
(Misconduct).6 The Commission served Respondent on 24 January 2014 with a copy of
(. . . continued)
(1) promptly inform the client of any decision or
circumstance with respect to which the client’s
informed consent, as defined in Rule 1.0(f), is
required by these Rules;
(2) keep the client reasonably informed about the
status of the matter;
(3) promptly comply with reasonable requests for
information; and
(4) consult with the client about any relevant limitation
on the lawyer’s conduct when the lawyer knows
that the client expects assistance not permitted by
the Maryland Lawyers’ Rules of Professional
Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
4
Rule 1.8(a)–(b) provides:
(a) A lawyer shall not enter into a business transaction with a
client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in
writing in a manner that can be reasonably
understood by the client;
(2) the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to
seek the advice of independent legal counsel on the
transaction; and
(3) the client gives informed consent, in a writing
signed by the client, to the essential terms of the
transaction and the lawyer’s role in the transaction,
(Continued. . .)
2
(. . . continued)
including whether the lawyer is representing the
client in the transaction.
(b) A lawyer shall not use information relating to the
representation of a client to the disadvantage of the client
unless the client gives informed consent, except as permitted
or required by these Rules.
MLRPC 1.8(b), although charged in the Petition for Disciplinary or Remedial
Action, was abandoned apparently by the Petitioner and not considered by the hearing
judge. Although Petitioner did not withdraw formally this charged violation, no
exceptions were filed with regard to the hearing judge’s failure to reach a conclusion as
to MLRPC 1.8(b). Accordingly, we will not consider MLRPC 1.8(b) further in this
opinion. See Attorney Grievance Commission v. McLaughlin, 372 Md. 467, 474 n.8, 813
A.2d 1145, 1149 n.8 (2002).
5
Rule 1.16(a) and (d) provide:
(a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced,
shall withdraw from the representation of a client if:
(1) the representation will result in violation of the
Maryland Lawyers’ Rules of Professional Conduct
or other law;
(2) the lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent
the client; or
(3) the lawyer is discharged.
* * *
(d) Upon termination of representation, a lawyer shall take
steps to the extent reasonably practicable to protect a client’s
interests, such as giving reasonable notice to the client,
allowing time for employment of other counsel, surrendering
papers and property to which the client is entitled and
refunding any advance payment of fee or expense that has not
been earned or incurred. The lawyer may retain papers
relating to the client to the extent permitted by other law.
(Continued. . .)
3
the PDRA, Writ of Summons, and Order for Hearing under Maryland Rule 16-752(a).
Respondent filed timely an Answer.
The case was assigned to a hearing judge of the Circuit Court for Baltimore City
to conduct an evidentiary hearing and render findings of fact and recommended
conclusions of law with regard to the charges. The hearing was conducted on 16 May
2014. Respondent was the sole witness called by Petitioner, and testified on his own
behalf as well. At the conclusion of the hearing, the parties submitted proposed written
findings of fact and conclusions of law. In addition, Petitioner responded to
Respondent’s proposed findings of fact and conclusions of law. In the hearing judge’s
opinion, the following factual findings were made:
The Respondent was admitted to the Maryland Bar
on 14 December 1973. He currently maintains a personal
injury practice in Baltimore, Maryland, which consists of
(. . . continued)
MLRPC 1.16(d) was abandoned apparently by the Petitioner as well. See supra
note 4.
6
Rules 8.4(a), (c), and (d) provide:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’
Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of
another;
* * *
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the
administration of justice[.]
4
one other practicing attorney and an administrative
assistant.
In the summer of 2004, the complainant, Diane
Wisniewski, underwent knee surgery at St. Agnes
Hospital, which allegedly resulted in an infection. On 16
September 2005, Wisniewski retained the Respondent as
counsel in order to pursue a medical malpractice suit
against the hospital. The Respondent agreed to represent
Wisniewski in accordance with the following fee
arrangement: the Respondent would receive 33.333% of
any recovery by settlement without litigation and 40% of
any recovery awarded following litigation.
Respondent acquired Wisniewski’s medical records
and sought an expert for the purpose of filing a Certificate
of Merit. Respondent testified that he forwarded
Wisniewski’s medical records to several doctors; however,
none “seemed to be interested in getting involved.”
Respondent admits that he did not inform Wisniewski of
the difficulty he encountered in obtaining an expert to file
the Certificate of Merit.
On 13 July 2007, Respondent filed a Statement of
Claim with the Health Claims Arbitration Office on behalf
of Wisniewski in an effort to protect her claim from being
barred by the applicable statute of limitations date. At this
time, the Respondent still had not secured an expert to file
the Certificate of Merit. Wisniewski’s claim was
subsequently dismissed by the Health Claims Arbitration
Office, as no Certificate of Merit was ever submitted in
support of the claim. By the time the Statement of Claim
was dismissed, the statute of limitations concerning
Wisniewski’s claim had expired.
Respondent admits that he failed to inform
Wisniewski that the Health Claims Arbitration Office had
dismissed her claim and that the statute of limitations on
the claim had expired. Respondent concealed this
information for a period of five years following the
dismissal of the claim and expiration of the statute of
limitations, leading Wisniewski to believe that her claim
was still active. Respondent admits that he continued his
representation of Wisniewski during this time, failing to
inform her of the conflict of interest that existed and her
right to seek independent counsel.
5
By the fall of 2012, Respondent had still failed to
inform Wisniewski of the actual status of her case and
instead told her that a settlement had been reached.
Respondent could not recall the amount of money for
which he reported the case had settled. Respondent then
met with Wisniewski regarding the fictional settlement, at
which time he informed her that he did not have the money
she was to receive from the settlement. As a result,
Wisniewski filed a complaint with the Petitioner in late
October 2012.
Respondent revealed the true status of the medical
malpractice claim to Wisniewski at some point after
Wisniewski filed her complaint with the Petitioner.
Respondent then entered into a “settlement agreement”
with Wisniewski in December of 2012. In a handwritten
note, signed by the Respondent and witnessed by the
Respondent’s business partner and wife, Ruth M. Schaub,
the Respondent agreed to pay Wisniewski a lump sum of
$12,500.00, to be followed by monthly payments of
$2,000. The monthly payments were set to begin on
10 January 2013 and to continue until the total of
$66,000.00 was paid as “full and final settlement.”
Respondent testified that, at the time of the
settlement agreement, he orally informed Wisniewski of
her right to seek independent counsel and offered to
provide information regarding his malpractice insurance.
The written agreement, however, lacks any indicia that
Wisniewski gave her informed consent concerning the
essential terms of the settlement agreement, Respondent’s
role in the agreement, or the desirability of retaining
independent counsel prior to the execution of the
agreement. To the extent that any informed consent may
have been obtained in this regard, it was not confirmed by
Wisniewski in writing anywhere in this written agreement
or in the record.
Respondent testified that the $66,000.00 settlement
amount is what Wisniewski would have netted had the
case against St. Agnes settled for $100,000.00 (accounting
for the Respondent’s 1/3 attorney’s fee). According to the
Respondent, $66,000.00 represents what Wisniewski
would have accepted as a settlement had she been
successful in litigating her claim.
6
Respondent testified that all payments to
Wisniewski have been made timely and in accordance with
the agreement.
(minor alterations added) (citations omitted). Based on his analysis, the hearing judge
concluded that the Commission proved, by clear and convincing evidence, that Shapiro
violated MLRPC 1.2(a), 1.3, 1.4(a) and (b), 1.8(a)(2), 1.16, and 8.4(a), (c), and (d). The
hearing judge’s conclusions of law with respect to each of the claimed violations will be
discussed in turn below.
Petitioner filed with us a single written exception to the hearing judge’s Findings
of Fact and Conclusions of Law. In its exception, Petitioner argued that the hearing
judge should have concluded that Petitioner proved by clear and convincing evidence that
the terms of the settlement agreement were unfair or unreasonable, leading to a violation
of MLRPC 1.8(a)(1). Respondent filed no exceptions, timely or otherwise.
II. STANDARD OF REVIEW
The Court of Appeals has original jurisdiction over attorney discipline matters.
Attorney Grievance Commission v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 867 (2013).
Accordingly, we “conduct an independent review of the record.” Attorney Grievance
Commission v. Garfield, 369 Md. 85, 97, 797 A.2d 757, 763 (2002). “We determine,
ultimately, whether an attorney has committed the misconduct charged by the Attorney
Grievance Commission.” Attorney Grievance Commission v. Maignan, 390 Md. 287,
292, 888 A.2d 344, 347 (2005). In accordance with Maryland Rule 16-752, we refer
petitions for disciplinary action to a circuit court judge to act as our hearing officer, for
that judge to receive evidence and thereafter present to the Court findings of fact and
7
recommended conclusions of law. See Maignan, 390 Md. at 292–93, 888 A.2d at 347.
Exceptions may be taken by the parties to the findings of fact, proposed conclusions of
law, or both. If no exceptions are filed with respect to the hearing judge’s findings of
fact, we may “treat the findings of fact as established for the purpose of determining
appropriate sanctions, if any.” Md. Rule 16-759(b)(2)(A). If exceptions are filed, we
must determine whether the findings of fact are clearly erroneous. Md. Rule 16-
759(b)(2)(B); see Attorney Grievance Commission v. Stolarz, 379 Md. 387, 397, 842
A.2d 42, 47 (2004) (“We . . . accept[] the hearing judge’s findings of fact unless clearly
erroneous.”).
When assessing the hearing judge’s findings of fact, we “give due regard to the
opportunity of the hearing judge to assess the credibility of witnesses.” Md. Rule 16-
759(b)(2)(B). We review the judge’s recommended conclusions of law without
deference, a standard referred to sometimes as de novo. Md. Rule 16-759(b)(1); see
Attorney Grievance Commission v. Greenleaf, 438 Md. 151, 156, 91 A.3d 1066, 1069
(2014) (“In an attorney discipline proceeding, this Court reviews for clear error the
hearing judge’s findings of fact, and reviews without deference the hearing judge’s
conclusions of law.”); Attorney Grievance Commission v. Moeller, 427 Md. 66, 73, 46
A.3d 407, 411 (2012) (“With respect to a hearing judge’s conclusions of law, no
deference applies and we review those conclusions de novo.”); Attorney Grievance
Commission v. Patterson, 421 Md. 708, 724, 28 A.3d 1196, 1205 (2011).
8
Inasmuch as no party filed exceptions to the factual findings of the hearing judge,
we accept them as established. We turn then to consideration of the recommended
conclusions of law and sanction, if necessary.
III. DISCUSSION
A. MLRPC 1.2 (Scope of Representation and Allocation of Authority
Between Client and Lawyer)
MLRPC 1.2(a) provides:
(a) Subject to paragraphs (c) and (d), a lawyer shall abide
by a client’s decisions concerning the objectives of the
representation and, when appropriate, shall consult with the
client as to the means by which they are to be pursued. A
lawyer may take such action on behalf of the client as is
impliedly authorized to carry out the representation. A
lawyer shall abide by a client’s decision whether to settle a
matter. . . .
The hearing judge concluded, by clear and convincing evidence, that Respondent
violated Rule 1.2 “because Respondent’s failure to inform [Wisniewski] that her claim
before the Health Claims Arbitration Office had been dismissed and that the statute of
limitations had expired deprived [Wisniewski] of her ability to make an informed
decision as to the objectives of the representation.”
In order for a lawyer to abide by a client’s decisions concerning the objectives of
the representation, the client must be able to make informed decisions as to the objectives
of the representation. In order for a client to make informed decisions as to the objectives
of the representation, an attorney must give the client honest updates regarding the status
of his or her case. In Attorney Grievance Commission v. Sperling, an attorney violated
MLRPC 1.2 when he failed to inform (for several years) a client that her case had been
9
dismissed. 432 Md. 471, 493, 69 A.3d 478, 491 (2013). In that matter, an associate
attorney in a law firm was assigned responsibility for a client’s case and tasked with
attending pre-trial conferences, drafting discovery, and engaging and interacting with a
process server. Sperling, 432 Md. at 475, 69 A.3d at 480. The defendant in the matter
was never served with the initial complaint, resulting in dismissal of the suit. Id. Two
years later, Sperling’s father, a partner in the law firm, filed a Motion for Reconsideration
of Dismissal, which was granted. Id. The defendant, yet to be served, failed to appear at
three pre-trial conferences. Id. The case was dismissed again. Sperling, 432 Md. at
475–76, 69 A.3d at 480. The attorney did not inform his client of either dismissal. Id.
Eight years after the second dismissal—and almost ten years after the firm took the case
originally—the client emailed Sperling to inquire about the status of her case. Sperling,
432 Md. at 476, 69 A.3d at 480. He responded by assuring his client that the case was
“still making its rounds with the [court] clerk and she assures me she is working on it,”
but did not tell her that her case had been dismissed. Id.
The attorney argued that this conduct did not violate MLRPC because any
alternative or choice that the client would have had after the case had been dismissed
would not have led to a successful outcome for her. Sperling, 432 Md. at 493, 69 A.3d at
491. We held that MLRPC 1.2(a) “does not require that a client’s decision regarding the
objectives of the representation necessarily result in a successful outcome. It was [the
client’s] choice that was offended by [Sperling’s] failure to inform her of the dismissal.”
Id. Accordingly, we found that MLRPC 1.2(a) was violated. Id.
10
In at least three other modern cases, attorneys violated MLRPC 1.2(a) by failing to
inform clients of the status of their cases. Attorney Grievance v. Davy, 435 Md. 674, 80
A.3d 322 (2013); Attorney Grievance Commission v. Brown, 426 Md. 298, 44 A.3d 344
(2012); Attorney Grievance Commission v. Reinhardt, 391 Md. 209, 892 A.2d 533
(2006). In Reinhardt, the attorney took a case, and filed a complaint on behalf of his
client, but failed to serve the defendant with the summons. Reinhardt, 391 Md. at 215,
892 A.2d at 536. Approximately six months later, the client inquired as to the status of
her case. Id. The attorney did not respond, but instead put the file in a briefcase, and
later put the briefcase in a closet, not realizing that he had left the file in the briefcase. Id.
He did not respond to the client’s repeated inquiries, nor did he take any actions to
prevent the dismissal of the lawsuit. Reinhardt, 391 Md. at 215–16, 892 A.2d at 536–37.
The attorney did not conduct an “aggressive” search for the lost file for approximately
four years. Reinhardt, 391 Md. at 216, 892 A.2d at 537. When he located the file, he did
not tell his client that he had misplaced it and took no action on her case in four years, but
rather indicated in a letter to the client that there was an “issue” securing service on the
Defendants. Reinhardt, 391 Md. at 216–17, 892 A.2d at 537. We concluded that this
behavior constituted a violation of Rule 1.2(a) as the attorney “fail[ed] to follow the
client’s instruction to pursue [her] case and inform her of the status of the case.”
Reinhardt, 391 Md. at 220, 222, 892 A.2d at 539–40.
The misconduct in Brown “mirror[ed] closely” the misconduct in Reinhardt.
Brown, 426 Md. at 320, 44 A.3d at 357. In Brown, two cases were dismissed for lack of
11
prosecution. Id. The attorney failed to inform his clients of those dismissals and ignored
their repeated requests for information. Id.
In Davy, an attorney filed a complaint on behalf of a client in the after-hours filing
box at the U.S. District Court for the District of Columbia. Davy, 435 Md. at 685, 80
A.3d at 328. The federal court mailed a rejection of the complaint to the attorney,
explaining that the complaint was rejected because the attorney failed to renew her
membership in the federal court’s bar, and also failed to include a cover sheet, summons,
and disc with the complaint. Davy, 435 Md. at 686, 80 A.3d at 328. The attorney called
the federal court about the rejection of the complaint and spoke with three people
regarding the rejection, but nonetheless emailed her client telling her that the complaint
had been filed on time and suggested further that the summons was about to be issued
and would be served subsequently. Davy, 435 Md. at 686–87, 80 A.3d at 329. A few
weeks later, the client visited the federal court personally, and was told that there was no
case pending in her name. Davy, 435 Md. at 687, 80 A.3d at 329. The attorney
continued to work on the matter even though the client accused the attorney of breaking
their agreement and requested her money back. Davy, 435 Md. at 688–89, 80 A.3d at
329–30. Such behavior violated MLRPC 1.2(a). Davy, 435 Md. at 699, 80 A.3d at 336.
We agree with the hearing judge that Shapiro’s conduct violated MLRPC 1.2(a) as
he failed to keep Wisniewski informed as to the status of her case and, accordingly,
deprived her of the opportunity to make informed decisions as to the objective of the
representation. In our view, his sustained deceit surpasses the grievous MLRPC 1.2
12
violations of the attorneys in Reinhardt, Brown, and Davy and rivals that of the attorney
in Sperling.
B. MLRPC 1.3 (Diligence)
MLRPC 1.3 provides:
A lawyer shall act with reasonable diligence and promptness
in representing a client.
The hearing judge concluded, by clear and convincing evidence, that Respondent
violated Rule 1.3
as a result of his failure to promptly act after learning that the
Health Claims Arbitration Office dismissed Wisniewski’s
claim and that the statute of limitations had run. While the
Respondent could have attempted to reopen the case,
researched whether there were means of legally
circumventing the running of the statute of limitations,
investigated whether there was a basis for asserting that the
statute of limitations had not tolled, or at the least, informed
Wisniewski of the situation, he instead chose to do nothing
but hide the true status of the case from Wisniewski, a clear
violation of Rule 1.3.
(minor alterations added) (citations omitted).
The “decision to do nothing promptly when [an attorney] learn[s] the case was
dismissed” violates MLRPC 1.3. Sperling, 432 Md. at 491, 69 A.3d at 489. In Sperling,
when an attorney learned that his client’s case had been dismissed, he failed to file
immediately a motion to reopen; neither did he research whether there were means to
circumvent legally the running of the statute of limitations, nor investigate whether there
was another basis for arguing that the statute of limitations had not tolled. Id. His failure
to take those steps constituted a violation of MLRPC 1.3. Id. Moreover, a failure to
13
protect against the expiration of the statute of limitations regarding a client’s claim may
violate MLRPC 1.3. Brown, 426 Md. at 321, 44 A.3d at 358. In Brown, two clients’ law
suits were dismissed due to the attorney’s “laggard representation.” Id. Prior to the
dismissal of their suits, the applicable statute of limitations expired on the claims. Id.
The failure to take active steps to protect against such an outcome constituted a violation
of MLRPC 1.3. Id. Also, in Kremer, where clients were unable to learn of the status of
their case after repeated attempts to reach their attorney, we held that the failure to keep
one’s client informed of his or her case violates MLRPC 1.3 and 1.4. 432 Md. at 335–36,
68 A.3d at 868–69; see Attorney Grievance Commission v. Walker-Turner, 428 Md. 214,
229, 51 A.3d 553, 562 (2012) (“Walker-Turner violated MLRPC 1.3 also by failing to
ascertain the status of his clients’ case after he missed the trial.”); Attorney Grievance
Commission v. Park, 427 Md. 180, 192–93, 46 A.3d 1153, 1160 (2012) (holding that a
lawyer’s failure to keep clients informed as to the status of the applications and his failure
to respond to the clients’ inquiries violated MLRPC 1.3).
In the present case, Respondent violated MLRPC 1.3 by failing to act more
promptly to prevent the dismissal of Wisniewski’s claim or to reinvigorate the case by
some other means. Respondent did not protect adequately Wisniewski’s claim from
expiring due to the running of the applicable statute of limitations. Finally, Respondent
failed to advise Wisniewski of his apparent inability to find a willing doctor, such that
Wisniewski could make decisions or assist with regard to locating a willing doctor before
her claim lapsed. These shortcomings violate MLRPC 1.3.
14
C. MLRPC 1.4 (Communication)
MLRPC 1.4 provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or
circumstance with respect to which the client’s
informed consent, as defined in Rule 1.0(f), is
required by these Rules;
(2) keep the client reasonably informed about the
status of the matter;
(3) promptly comply with reasonable requests for
information; and
(4) consult with the client about any relevant limitation
on the lawyer’s conduct when the lawyer knows
that the client expects assistance not permitted by
the Maryland Lawyers’ Rules of Professional
Conduct or other law.
(b) A lawyer shall explain a matter to the extent reasonably
necessary to permit the client to make informed decisions
regarding the representation.
The hearing judge concluded, by clear and convincing evidence, that Respondent
violated Rule 1.4 based on his
failure to inform Wisniewski that her claim had been
dismissed, along with the continued misrepresentation over a
five year period that the case was open and being pursued,
constitutes a violation of Rule 1.4(a) and (b). Furthermore,
Respondent failed to inform Wisniewski that he was having
difficulty in retaining an expert for the purpose of filing a
Certificate of Merit. His failure to keep her informed
deprived her of the opportunity to seek other counsel who
may have had success in procuring a Certificate of Merit.
(minor alterations added) (citations omitted).
Attorneys violate MLRPC 1.4 when they fail to communicate with their clients
and keep them informed of the status of their legal matters. Attorney Grievance
15
Commission v. Kwarteng, 411 Md. 652, 658, 660, 984 A.2d 865, 868–69 (2009). The
misrepresentation of the status of a case to a client constitutes a violation of MLRPC
1.4(a). Sperling, 432 Md. at 494, 69 A.3d at 491; Attorney Grievance Commission v.
London, 427 Md. 328, 352, 47 A.3d 986, 1000 (2012); Attorney Grievance v. Steinberg,
395 Md. 337, 368–69, 910 A.2d 429, 447–48 (2006). The attorney in Sperling concealed
from his client the fact that her case had been dismissed, instead misrepresenting to the
client that her case was being pursued. Sperling, 432 Md. at 494, 69 A.3d at 491. Such
behavior violated MLRPC 1.4(a). Id.; see Brown, 426 Md. at 321–22, 44 A.3d at 358
(violating MLRPC 1.4(a) by failing to notify various clients of discovery sanctions and
the dismissal of a claim, as well as by failing to respond to case-status requests). MLRPC
1.4(b) is violated similarly by a lack of communication, as clients are unable to make
informed decisions regarding their cases if their attorney has not communicated fully
with them. A failure to inform a client about a pending or granted motion to dismiss
violates MLRPC 1.4(b), as clients are denied the opportunity to make informed decisions
regarding the best course of conduct for their claims. Sperling, 432 Md. at 494, 69 A.3d
at 491; see Attorney Grievance Commission v. De La Paz, 418 Md. 534, 554, 16 A.3d
181, 193 (2011) (violating MLRPC 1.4 by failing to inform a client that the case had been
dismissed), Attorney Grievance Commission v. Fox, 417 Md. 504, 517, 532, 11 A.3d 762,
769, 778 (2010) (violating MLRPC 1.4 by not knowing that a client’s case was dismissed
and accordingly not communicating that fact to the client).
Respondent violated MLRPC 1.4 by failing to communicate with Wisniewski and
by misrepresenting actively to her for years that her claim was active and still being
16
pursued. She was unable to make an informed decision regarding her representation
because Respondent did not present her with relevant and critical information.
D. MLRPC 1.8 (Conflict of Interest: Current Clients: Specific Rules)
MLRPC 1.8(a) provides:
(a) A lawyer shall not enter into a business transaction with a
client unless:
(1) the transaction and terms on which the lawyer
acquires the interest are fair and reasonable to the
client and are fully disclosed and transmitted in
writing in a manner that can be reasonably
understood by the client;
(2) the client is advised in writing of the desirability of
seeking and is given a reasonable opportunity to
seek the advice of independent legal counsel on the
transaction; and
(3) the client gives informed consent, in a writing
signed by the client, to the essential terms of the
transaction and the lawyer’s role in the transaction,
including whether the lawyer is representing the
client in the transaction.
With regard to MLRPC 1.8, the hearing judge concluded, by clear and convincing
evidence, that Respondent
violated Rule 1.8 as a result of his settlement arrangement
with Wisniewski. While the Respondent was not prohibited
outright from entering into this kind of arrangement with
Wisniewski, Respondent was required to inform Wisniewski
in writing of the desirability of seeking independent counsel
prior to entering into a settlement agreement with
Respondent. While Respondent testified that he orally
advised Wisniewski, there is no indication in the record, nor
does Respondent anywhere assert, that Wisniewski was ever
given written notice. The record is similarly lacking indicia
that Wisniewski gave her informed consent in writing, as
17
required by paragraph (a)(3) and in accordance with Rule
1.0(f).[7] . . . [N]o writing exists in which Wisniewski gives
her informed consent to the agreement. The only writing
offered to this Court pertaining to the settlement arrangement
was Respondent’s Exhibit 5, an agreement handwritten by the
Respondent and signed only by the Respondent and his
business partner.
(minor alterations added) (citations omitted).
1. MLRPC 1.8(a)(2)’s Written Disclosure Requirement
The parties disagreed in their proposed findings of fact and conclusions of law as
to the scope and level of detail that would have been necessary in a theoretical disclosure
for Respondent to have acted in accordance with MLRPC 1.8. The hearing judge felt
(appropriately) that it was not necessary to address that issue, as there was, in fact, no
disclosure in writing of any kind. Thus, we are not compelled to define here the lowest
threshold for what may constitute an appropriate disclosure. What is appropriate for us to
iterate (or reiterate, put more correctly) as guidance is that the transaction and terms of
such a business transaction must be “fair and reasonable . . . [and] fully disclosed and
transmitted in writing in a manner that can be reasonably understood by the client.”
MLRPC 1.8(a)(1); see Attorney Grievance Commission v. Ober, 350 Md. 616, 627–28,
714 A.2d 856, 862 (1998) (“We need not address the fairness of the transactions to [the
7
Rule 1.0(f) provides:
“Informed consent” denotes the agreement by a person to a
proposed course of conduct after the lawyer has
communicated adequate information and explanation about
the material risks of and reasonably available alternatives to
the proposed course of conduct.
18
client] as [r]espondent did not advise [the client] to seek the advice of independent
counsel with regard to the loan as required by [an older iteration of MLRPC 1.8].”).
MLRPC 1.8 “is intended to prevent ‘overreaching’ when a lawyer engages in a
financial transaction with a client, given a lawyer’s skill and training and the relationship
of trust with a client.” Attorney Grievance Commission v. Lawson, 428 Md. 102, 115, 50
A.3d 1196, 1203 (2012). In Lawson, an attorney and his client entered into a settlement
agreement concerning a disputed attorney’s fee, which gave the attorney a lien on the
proceeds of the client’s marital property settlement. Id. The client had poor eyesight and
was unable to understand the relevant law or “legalese” of the agreement itself. Id. The
client was not advised of the desirability of seeking independent counsel, nor was he
given an opportunity to do so and, accordingly, the client did not give informed consent,
written or otherwise, to the essential terms. Id. Lawson violated MLRPC 1.8 as a result.
Id. In Steinberg, an attorney violated MLRPC 1.8 when he sought to have his client,
without the assistance of independent counsel, execute a release of any legal malpractice
claims against the attorney. 395 Md. at 365, 910 A.2d at 445. He neither advised her of
the desirability of obtaining counsel, nor did he allow her to do so: when she entered the
room for a meeting with counsel a “Release in Full” was sitting on the table, ready to be
signed. Id.
We agree with the hearing judge that Respondent violated MLRPC 1.8 by not
advising Wisniewski in writing of the desirability of seeking independent counsel prior to
entering into the agreement with Respondent. Any advice that may have been given
19
orally by Respondent falls well short of satisfying the clear requirements of MLRPC
1.8(a)(2).
2. MLRPC 1.8(a)(1)’s “Fair and Reasonable” Requirement
Petitioner argued implicitly in its proposed findings of fact and conclusions of law
that the facial terms of the settlement agreement were a violation of MLRPC 1.8(a)(1).
The hearing judge declined to conclude that the terms of the settlement agreement
constituted an additional, independent violation of MLRPC 1.8(a)(1). He refrained from
reaching such a conclusion of law because:
[T]here is insufficient information on the record from which
to evaluate whether the terms of the settlement agreement
were unfair or unreasonable to Wisniewski. Petitioner
offered no evidence as to the specific nature or potential value
of Wisniewski’s medical malpractice claim against St. Agnes
Hospital, and therefore, the Court has no objective basis on
which to make its determination on this theory.
(minor alterations added).
Petitioner took exception to the judge’s conclusion that Bar Counsel failed to meet
its burden of proving, by clear and convincing evidence, that the terms of the settlement
agreement were unfair or unreasonable to Wisniewski, in violation of MLRPC 1.8(a)(1).
Petitioner based its exception on “the inherent unfairness concerning the benefit
Respondent received from the settlement of a claim that arose from his mishandling of
that client’s case.” Bar Counsel argues that there was sufficient evidence to compel the
hearing judge to conclude that the terms of the settlement agreement were unfair patently
in a way that violated MLRPC 1.8(a)(1). Bar Counsel rests its argument on three facts:
(1) Respondent took a 1/3 attorney’s fee from the settlement for services that, according
20
to Petitioner, he did not perform; (2) the agreement capped Respondent’s liability to
Wisniewksi as a “full and final settlement,” without including provisions as to the pay-
out period for interest or other consideration for interest-free repayments; and (3) the lack
of written evidence of Wisniewski’s informed consent, confirmed in writing.
Petitioner argues in its exception that it satisfied the initial burden of making a
prima facie showing that the Respondent entered into an unfair business transaction with
his client and, thus, it became Respondent’s burden to demonstrate in his case-in-chief at
trial that, notwithstanding the facts and provisions mentioned above, the settlement was
fair and reasonable. As Petitioner sees it, because no such evidence was produced at trial
by Respondent, the hearing judge was wrong not to have concluded that Respondent
violated MLRPC 1.8(a)(1) based on the terms of the settlement agreement alone.
Pursuant to Maryland Rule 16-757(b), Petitioner “has the burden of proving the
averments of the petition by clear and convincing evidence.” We have not had much
occasion previously to discuss in any depth, with regard to MLRPC 1.8(a)(1), the burdens
of production and proof regarding whether agreements between attorneys and clients are
fair and reasonable. We have noted that, when attorneys and clients enter into contracts,
“‘the law makes a presumption against the attorney and in favor of the client. In such
cases the onus is on the attorney to prove the entire bona fides and fairness of the
transaction.’” Attorney Grievance Commission v. Korotki, 318 Md. 646, 666, 569 A.2d
1224, 1234 (1990) (quoting Merryman v. Euler, 59 Md. 588–90 (1883)). In questions
regarding whether the transaction and terms of a business transaction with a client are fair
and reasonable to the client:
21
[T]he attorney has the burden of showing, not only that he
used no undue influence, but that he gave his client all the
information and advice which it would have been his duty to
give if he himself had not been interested, and that the
transaction was as beneficial to the client as it would have
been had the client dealt with a stranger.
Attorney Grievance Commission v. McLaughlin, 372 Md. 467, 506, 813 A.2d 1145, 1168
(2002) (quoting Attorney Grievance Commission v. Snyder, 368 Md. 242, 265–66, 793
A.2d 515, 529 (2002)).8 The attorney bears also “a significant burden to prove the
fairness of an agreement concerning fees made with his client after services have been
rendered in the course of the confidential relationship of attorney and client.” Attorney
Grievance v. Eisenstein, 333 Md. 464, 478, 635 A.2d 1327, 1334 (1994). In situations
where the client has not been “advised in writing of the desirability of seeking and [was
not] given a reasonable opportunity to seek the advice of independent legal counsel on
the transaction,” MLRPC 1.8(a)(2), we presume that the agreement between the attorney
and client is not a fair and reasonable one. Respondents may overcome this presumption
8
In McLaughlin, the respondent violated an earlier iteration of MLRPC 1.8 based on the
standard terms of his fee agreement, which created loan agreements, when his clients
were not advised that they should seek the advice of separate counsel. 372 Md. 467, 813
A.2d 1145. The earlier iteration of MLRPC 1.8 provided:
A lawyer shall not enter into a business, financial or property
transaction with a client unless: (1) the transaction is fair and
equitable to the client; and (2) the client is advised to seek the
advice of independent counsel in the transaction and is given
a reasonable opportunity to do so.
McLaughlin, 372 Md. at 505, 813 A.2d at 1167–68.
22
by adducing a prima facie case that the agreement is fair and reasonable, despite the lack
of a written disclosure.
In this matter, the hearing judge was disinclined to find a separate violation of
1.8(a)(1) based on the state of the record before him. Based on the record and in light of
the guidance provided above, we need not determine here whether the terms and
conditions of the agreement between Respondent and Wisniewski were fair and
reasonable. Petitioner’s exception is moot, as the hearing judge concluded previously—
and we agree—that Respondent violated clearly MLRPC 1.8(a)(2) by not providing
Wisniewski with an appropriate written disclosure. This became a violation of MLRPC
1.8(a), in and of itself, as the sub-parts of MLRPC 1.8(a) are expressed in the
conjunctive. Thus, as charged in the PDRA, Shapiro was found to have violated MLRPC
1.8(a). The unit of prosecution under MLRPC 1.8(a) is but a single unit as regards a
single transaction, regardless of whether all or any one of sub-parts (1), (2), and/or (3) are
proven.
E. MLRPC 1.16 (Declining or Terminating Representation)
MLRPC 1.16(a) provides:
(a) Except as stated in paragraph (c), a lawyer shall not
represent a client or, where representation has commenced,
shall withdraw from the representation of a client if:
(1) the representation will result in violation of the
Maryland Lawyers’ Rules of Professional Conduct
or other law;
(2) the lawyer’s physical or mental condition
materially impairs the lawyer’s ability to represent
the client; or
(3) the lawyer is discharged.
23
The hearing judge concluded, by clear and convincing evidence, that Respondent
violated MLRPC 1.16 by “failing to withdraw as counsel once he became aware that the
statute of limitations had run on Wisniewski’s medical malpractice claim.”
Attorneys must withdraw from representation of a client once their interests
become “untenably at odds with [their] client[s’].” Attorney Grievance v. Bleecker, 414
Md. 147, 173, 994 A.2d 928, 943 (2010). In Bleecker, the attorney filed accidentally a
complaint averring that the date an accident occurred was one year later than the actual
date. Bleecker, 414 Md. at 159, 994 A.2d at 935. After he discovered the mistake, and
realized that the applicable statute of limitations expired actually, he failed to inform her
of his mistake. Id. Nonetheless, he continued to represent the client on other matters.
Bleecker, 414 Md. at 173, 994 A.2d at 943. We concluded that the attorney “was
obligated to withdraw from the representation, when he became aware that the statute of
limitations had expired,” and he was also “obligated to advise [his client] to seek
independent counsel concerning a potential malpractice claim.” Id.; see Attorney
Grievance Commission v. Pennington, 387 Md. 565, 581, 595, 876 A.2d 642, 651, 660
(2005) (violating MLRPC 1.16(a)(1) by “fail[ing] to withdraw from representation of
[her clients] after her representation gave rise to their cause of action against her”). Like
the attorneys in Bleecker and Pennington, Respondent failed to withdraw immediately
after learning of the potential cause of action that Wisniewski may have had against him.
This ethical lapse violated MLRPC 1.16.
24
F. MLRPC 8.4 (Misconduct)
MLRPC 8.4(a), (c), and (d) provide:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’
Rules of Professional Conduct, knowingly assist or
induce another to do so, or do so through the acts of
another;
* * *
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation; [or]
(d) engage in conduct that is prejudicial to the
administration of justice[.]
In light of his conclusions that Respondent violated MLRPC 1.2, 1.3, 1.4(a) and
(b), 1.8(a), and 1.16, the hearing judge concluded, by clear and convincing evidence, that
Respondent violated MLRPC 8.4(a). The hearing judge concluded further that
Respondent violated MLRPC 8.4(c) and (d):
By his own admission, Respondent concealed from
Wisniewski the true status of her medical malpractice case
from late 2007 until late 2012. In these five years,
Respondent led Wisniewski to believe that her case was
active and being pursued by the Respondent. Respondent
went even further in misleading Wisniewski in the fall of
2012, when he informed her that the case had been settled
when no such settlement had occurred. Such action
constitutes a clear violation of paragraph (c) of the Rule.
Finally, . . . Respondent violated Rule 8.4(d) by neglecting to
keep Wisniewski informed about the status of her case and to
perform his duty as counsel with promptness and diligence.
Such conduct is prejudicial to the administration of justice, as
it “tends to bring the legal profession in disrepute.”
25
(minor alterations added) (citations omitted) (quoting Brown, 426 Md. at 324–25, 44
A.3d at 360 (quoting Attorney Grievance Commission v. Rose, 391 Md. 101, 111, 892
A.2d 469, 475 (2006))).
The hearing judge noted appropriately that MLRPC 8.4(a) is violated when other
Rules of Professional conduct are breached. See Attorney Grievance Commission v. Van
Nelson, 425 Md. 344, 363, 40 A.3d 1039, 1050 (2012). As Respondent violated MLRPC
1.2, 1.3, 1.4, 1.8, and 1.16, he violated MLRPC 8.4(a) as well.
MLRPC 8.4(c) “prohibits an attorney from, among other things, making
misrepresentations to his or her client.” Brown, 426 Md. at 323, 44 A.3d at 359. In
Brown, the respondent told his client that her case was still pending in arbitration when in
fact it had been dismissed for two years. Brown, 426 Md. at 324, 44 A.3d at 359–60; see
Bleecker, 414 Md. at 169, 994 A.2d at 941 (finding a violation of MLRPC 8.4(c) where
an attorney led his client to believe that her case had not been dismissed). Direct
misrepresentations, such as the one that Respondent in this matter made to Wisniewski
when he led her to believe that her case was still active, violate MLRPC 8.4(c). The
attorney in Brown misrepresented the status of a client’s case several times to the client,
Brown, 426 Md. at 324, 44 A.3d at 360, much as Respondent in this matter continued to
misrepresent the status of Wisniewski’s case to her for approximately five years.
Attorneys violate MLRPC 8.4(d) when they fail to keep their clients advised of the
status of the representation and represent diligently their clients’ interests. See Bleecker,
414 Md. at 175, 994 Md. at 944–45. The hearing judge noted rightly that such conduct is
26
prejudicial to the administration of justice in that it tends to bring the legal profession into
disrepute. See Reinhardt, 391 Md. at 222, 892 A.2d at 540–41.
IV. SANCTION
We now turn to the difficult and serious task of determining the appropriate
sanction. Where, as here, MLRPC 8.4(c) is the flagship of a flotilla of violations, our
cases of arguably similar ilk are strewn over the sanctions landscape. Petitioner
recommends that Respondent be disbarred. Respondent argues that a less severe sanction
is more appropriate.
We commence by noting some general principles, and shall work from them to
specific cases. The chief purpose of any sanction is to protect the public. Attorney
Grievance v. Chapman, 430 Md. 238, 277, 60 A.3d 25, 49 (2013); Park, 427 Md. at 195,
46 A.3d at 1161; Attorney Grievance Commission v. Paul, 423 Md. 268, 283, 31 A.3d
512, 521 (2011); Attorney Grievance Commission v. Culver, 371 Md. 265, 277, 808 A.2d
1251, 1258 (2002). Sanctions protect the public in two ways: “through deterrence of the
type of conduct which will not be tolerated, and by removing those unfit to continue in
the practice of law from the rolls of those authorized to practice in this State.” Attorney
Grievance Commission v. Usiak, 418 Md. 667, 689, 18 A.3d 1, 14 (2011) (quoting
Attorney Grievance Commission v. Mahone, 398 Md. 257, 268–69, 920 A.2d 458, 465
(2007)). Disciplinary proceedings are
a catharsis for the profession, intended to ensure the integrity
of the bar and to prevent the transgressions of an individual
lawyer from bringing its image into disrepute. Therefore, the
public interest is served when sanctions designed to effect
general and specific deterrence are imposed on an attorney who
27
violates the disciplinary rules, and those sanctions demonstrate
to members of the legal profession the type of conduct that will
not be tolerated.
Brown, 426 Md. at 325, at 360–61 (quoting Paul, 423 Md. at 283–85, 31 A.3d at 521–
22). Sanctions are also designed to effect general and specific deterrence. Attorney
Grievance Commission v. Litman, 440 Md. 205, 216, 101 A.3d 1050, 1057 (2014); see
Attorney Grievance Commission v. McDonald, 437 Md. 1, 45, 85 A.3d 117, 143 (2014)
(“Our guiding principle in determining sanctions for ethical violations is our interest in
protecting the public and the public’s confidence in the legal profession.” (internal
quotations omitted)). We look not merely to the number of rules broken, but to the
lawyer’s conduct. See Attorney Grievance Commission v. Briscoe, 357 Md. 554, 568,
745 A.2d 1037, 1044 (2000). “Our selection of an appropriate sanction is guided by the
nature and gravity of the violation, the intent with which the violation was committed,
and the particular circumstances surrounding each case, including aggravating and
mitigating factors.” Park, 427 Md. at 195, 46 A.3d at 1161.
We recognize that, while “[m]ost lawyers prize their integrity . . . . [h]uman frailty
being what it is, not all lawyers tell the truth all the time. It falls to this Court in its
capacity as the principal regulator of the legal profession in Maryland to distinguish those
untruths that violate the MLRPC from those that do not.” Attorney Grievance
Commission v. Coppock, 432 Md. 629, 631–32, 69 A.3d 1092, 1093 (2013). In cases
where an attorney’s repeated material misrepresentations constitute a pattern of deceitful
conduct, as opposed to but an isolated instance, the appropriate sanction is often
disbarment. See Steinberg, 395 Md. at 373, 910 A.2d at 450 (“We long have held that
28
repeated acts of dishonest, fraudulent, or misleading behavior may warrant a sanction of
disbarment.”). “We have not, however, always found disbarment to be the appropriate
sanction where there is misrepresentation involved, especially where misappropriation of
money was not involved.” Attorney Grievance Commission v. Lane, 367 Md. 633, 646–
47, 790 A.2d 621, 628 (2002); see Sperling, 432 Md. at 491, 493, 497–98, 69 A.3d at
489, 491, 493–94; Reinhardt, 391 Md. at 225, 892 A.2d at 542 (“Every
misrepresentation, however, does not call for disbarment.”).
Attorney Grievance Commission v. Sperling resembles most closely the facts and
circumstances of the present case. 432 Md. 471, 69 A.3d 478. In Sperling, after a
client’s case was dismissed, Sperling failed to research whether there was any way to
avoid the running of the statute of limitations or whether there was a tolling argument,
but instead, two years later, he and his supervising partner filed two motions to reopen
(neither of which was successful). Sperling, 432 Md. at 475–76, 491, 69 A.3d at 480,
489. The respondent did not tell his client that her case had been dismissed initially, or
that the motions to reopen had been filed. Id. Eight years after the case was dismissed a
second time, when the client inquired as to the status of her case, the respondent told her
that the case was still active and that the court clerk was working on it. Id.
Sperling’s misrepresentations were not limited to the client. Sperling made
material misrepresentations to the court when he told a judge that he had contacted the
court clerk several times to discover the status of the case when he in fact had not.
Sperling, 432 Md. at 491–92, 69 A.3d at 490. He submitted motions and affidavits to the
court repeating these misrepresentations. Id. We determined that the respondent made
29
those misstatements to the court in an attempt to mislead the court into granting the
motions to reopen. Id. We noted several aggravating factors in Sperling: the attorney
lied to the court in order to “place blame on others [the court clerk],” he lied multiple
times to multiple parties, he testified falsely during an evidentiary hearing before the
circuit court, and he downplayed consistently the significance of his misrepresentations to
his client and the court. Sperling, 432 Md. at 496–97, 69 A.3d at 492–93. We concluded
that an indefinite suspension was the appropriate sanction. Sperling, 432 Md. at 498, 69
A.3d at 494. (“[The respondent’s] misconduct involved one case and one client, but was
marred by his lack of competence, diligence, and lack of candor with his client and the
court, certainly grievous actions.”); see Attorney Grievance Commission v. Brown, 415
Md. 269, 278–79, 281–82, 999 A.2d 1040, 1046–48 (2010) (suspending an attorney for
90 days who was dishonest deliberately on three separate occasions to his client and Bar
Counsel, misrepresented actions that he had taken on a client’s case, and mishandled
client funds, but had no previous instances of misconduct, did not use the client funds for
personal gain, and took responsibility for his actions ultimately, helping a third party with
remediation efforts free-of-charge). But see Bleecker, 414 Md. at 169–76, 994 A.2d at
941–45 (disbarring an attorney where the case was dismissed and he missed the statute of
limitations deadline on a client’s claim, but did not tell the client, did not withdraw from
representation once a conflict of interest arose between himself and his client, failed to
cooperate with Bar Counsel, and failed to correct a material mistake on pleadings filed
with the court). In the present case, Shapiro misrepresented to Wisniewski the true status
of her case for five years before telling her that her case had “settled.” Although Shapiro
30
violated also MLRPC 1.8, his misrepresentations to Wisniewski were for a shorter period
of time than those in Sperling; he made no misrepresentations to a court; and has not
attempted to downplay the significance of his violations.
We deemed indefinite suspension appropriate also where an attorney acted
dishonestly and made misrepresentations to his client out of “absolute embarrassment.”
Reinhardt, 391 Md. at 223–24, 892 A.2d at 541. Reinhardt told his client that he was
working on the client’s case when actually he had lost the file and had taken no action on
the matter. Reinhardt, 391 Md. at 222, 892 A.2d at 540. Four years passed before the
attorney found the file and concealed the delay by indicating to the client that there had
been an “issue” securing service on the defendants. Reinhardt, 391 Md. at 216–17, 892
A.2d at 537. We characterized his actions as “dishonest,” in the sense that the
“respondent exhibited a lack of probity, integrity and straightforwardness.” Reinhardt,
391 Md. at 222, 892 A.2d at 540. We noted at the outset that “lying to a client reflects
most negatively on the legal profession. It goes without saying that a lawyer should not
lie to the client about the status of the client’s case.” Reinhardt, 391 Md. at 225, 892
A.2d at 542. Reinhardt’s sanction was an indefinite suspension, however, because he
cooperated fully with Bar Counsel, negotiated a restitution plan, and worked with the
client to settle the underlying matter. Reinhardt, 391 Md. at 224, 892 A.2d at 541. Even
though there was an aggravating consideration, i.e., Reinhardt had been suspended
indefinitely previously, we concluded that disbarment was not warranted as there was “no
evidence that he acted out of fraudulent or selfish motive.” Reinhardt, 391 Md. at 223–
24, 230 n.4, 892 A.2d at 541, 545 n.4. Because no misappropriation of funds nor
31
criminal conduct were implicated, and the misconduct related to but one client in a single
case context, we determined that an indefinite suspension was appropriate. Id. In the
present matter, Shapiro’s misrepresentations similarly related to one client and one case,
although spread over several years. Respondent’s settlement with Wisniewski, although
handled improperly, indicated a willingness to attain some sort of restitution.
Even when an attorney’s misconduct is committed with respect to more than one
client, an indefinite suspension is sometimes appropriate. In Attorney Grievance
Commission v. Harrington, an attorney failed to pursue two matters that he undertook,
failed to comply with reasonable requests for information from one client, and failed to
keep the other informed reasonably regarding the status of the case. 367 Md. 36, 47–48,
785 A.2d 1260, 1266–67 (2001). He terminated also a client relationship without taking
steps to protect the client’s interests, and was very uncooperative with Bar Counsel. Id.
And even though he led one of his clients to believe that he filed a suit on her behalf
when in fact he had not, we concluded that an indefinite suspension was appropriate.
Harrington, 367 Md. at 51, 785 A.2d at 1269. In comparison, Respondent in the present
case failed to file a Certificate of Merit, failed to keep Wisniewski informed as to the true
status of her case, and violated MLRPC 1.8, but cooperated with Bar Counsel.
Because we “evaluate every attorney grievance matter on its own merits, taking
into account the facts and circumstances involved,” Bleecker, 414 Md. at 176, 994 A.2d
at 945, we have not aspired to set out or suggest a formula or rubric to determine what an
attorney’s sanction will be based on various combinations of violations of the MLRPC.
Such an aspiration would be unrealistic, given the need to tailor a sanction to the
32
particular facts and circumstances of each case. We observe generally, however, that we
tend to favor disbarment when attorneys’ misrepresentations and deceitful actions are
committed against multiple clients, are paired with violations of the rules pertaining to
the proper handling of client or third party money or property, or are joined with a large
number of other violations (whether of the MLRPC or the Maryland Code).
The respondent in Lane, whose misconduct was committed against two clients,
committed himself to a snowballing lie of “the most egregious nature.” Lane, 367 Md. at
647, 790 A.2d at 629. Lane took no action on a client’s case and filed no pleadings of
any kind, yet told his client that a summons had been issued for the opposing party.
Lane, 367 Md. at 638–39, 790 A.2d at 623–24. He met his client at the courthouse and
told his client that the opposing party failed to appear. Id. Lane then took his leave by
pretending to have a meeting with the judge, and returned to inform falsely his client that
the judge would rule in his favor. Id. He claimed later that the opposing party had filed a
“stay.” Id. With respect to another client, the respondent did not communicate properly
the terms of their fee arrangement, paid some of the client’s bills from his own funds, and
did not file appropriate pleadings in order to secure an injunction against a utility
threatening to turn off the client’s water service. Lane, 367 Md. at 639–40, 790 A.2d at
624. Instead, he claimed to have filed a motion for sanctions against the water company
for turning off the client’s water ultimately, and then paid his client a sum of money that
he said came from the company as a result of the sanctions action, but in reality came
from his own pocket. Id. Finally, he told the same client that he filed a motion for
summary judgment, which was granted, resulting in an award to her of over 11 million
33
dollars. Lane, 367 Md. at 640, 790 A.2d at 625. She was told to come to the courthouse
with a suitcase and personal security to carry the cash home. Id. When she arrived at the
courthouse, he confessed that he had misled her completely regarding the status of her
lawsuit and that no money was forthcoming. Id. It is of little surprise that Lane was
disbarred. Lane, 367 Md. at 647–48, 790 A.2d at 629. Although the lies of the
Respondent in the present case are serious, they are not as extreme as those uttered by the
attorney in Lane.
In Brown, the attorney committed various acts of misconduct with respect to four
clients. 426 Md. at 305–06, 44 A.3d at 349. He failed to pursue a client’s claims in a
timely manner, which resulted in the statute of limitations expiring before the case was
dismissed for a failure to prosecute. Brown, 426 Md. at 320–21, 44 A.3d at 358. The
attorney failed also to answer discovery requests and incurred sanctions in another client
matter. Id. Brown did not inform his clients about the dismissal or the sanctions and
further ignored repeated requests for information from another client. Brown, 426 Md. at
320–22, 44 A.3d at 357–59. Brown did not return documents in his case file to a client in
a timely manner, and also did not respond to two information request letters from Bar
Counsel. Brown, 426 Md. at 322–23, 44 A.3d at 359. Such conduct violated MLRPC
1.1, 1.2, 1.3, 1.4, 1.16, 3.2, and 8.1(b). Brown, 426 Md. at 326, 44 A.3d at 361. We held
also that the manner in which Brown misled his client violated MLRPC 8.4(c), as Brown
told one of his clients that the case was pending in arbitration, when in reality it had been
dismissed two years previously. Brown, 426 Md. at 324, 44 A.3d at 359–60. Given the
“gravity and pervasiveness” of Brown’s misconduct, we concluded that the appropriate
34
sanction was disbarment. Brown, 426 Md. at 328, 44 A.3d at 362; see also Kremer, 432
Md. at 335–36, 340–41, 68 A.3d at 866–69, 871 (disbarring an attorney where he
committed misconduct with respect to four clients, failed to cooperate with Bar Counsel,
failed to file bankruptcy petitions for multiple clients, missed hearings, caused a case to
be dismissed, failed to respond to clients, abandoned cases before completion, and failed
to return to clients documents and unearned fees). In comparison, Shapiro’s
misrepresentations were limited to one case with one client.
When an attorney’s misrepresentations are paired with violations of the MLRPC
provisions regarding financial or other property matters, the sanction is most often
disbarment. In Lawson, an attorney was disbarred for violations of MLRPC 1.5, 1.8,
1.15, and 8.4(c) and (d). 428 Md. at 117, 50 A.3d at 1204. Lawson was dishonest with a
client about whether an attorney grievance matter was pending against him. Id. The
attorney also charged his client an unreasonable fee and mishandled a subsequent fee
dispute by inducing a client to enter into a settlement agreement that gave the attorney a
lien on the client’s settlement proceeds regarding a marital property dispute. Lawson,
428 Md. at 115, 50 A.3d at 1203. The terms of the settlement agreement were not
communicated in a way that the client could understand, and the client did not give
informed consent, written or otherwise, as to the essential terms of the transaction. Id.
Because Lawson created and then mismanaged client fee disputes, and was motivated by
a desire to obtain fees to which he wasn’t entitled from an elderly man in poor health
with limited means, we disbarred him. Lawson, 428 Md. at 117–19, 50 A.3d at 1204–05;
see also McLaughlin, 372 Md. at 500–02, 505–06, 813 A.2d at 1164–66, 1168
35
(disbarring an attorney who received over $70,000 from various clients, but did almost no
work for them, and created an improper plan for returning unearned fees to clients
(creating a loan relationship), but did not advise them to seek independent counsel).
Although Shapiro also entered into an agreement in violation of MLRPC 1.8, nothing in
the record in this matter indicates that he was motivated by a desire to obtain fees to
which he was not entitled. Moreover, MLRPC 1.15 is not implicated here.
Attorney Grievance Commission v. Pennington, 387 Md. 565, 876 A.2d 642, is
also instructive. In that matter, a client’s case was dismissed, but rather than
communicating the dismissal to the client, Pennington presented a “settlement” of their
claims (which included false documents) to her clients with the intent that they not learn
of the suit’s dismissal. Pennington, 387 Md. at 589–90, 876 A.2d at 656. Instead of
disclosing the dismissal of the claim, the respondent attempted to make her clients whole
by paying them out of her personal funds what she thought they would find agreeable and
what she perceived to be a fair sum. Pennington, 387 Md. 572–73, 876 A.2d at 646.
Also, Pennington denied repeatedly any dishonesty on her part and misrepresented
intentionally matters in negotiations with a third party health care provider. Pennington,
387 Md. at 595, 596, 876 A.2d at 660. That respondent’s “attempt to purchase a plenary
indulgence with her own money is more indicative of a selfish plan to conceal than of a
praiseworthy desire to ‘make the client whole.’” Pennington, 387 Md. at 597–98, 876
A.2d at 661. We determined that, regardless of whether she intended to prevent her
clients from finding out that they had a potential legal malpractice claim against her or
whether she acted out of a desire to spare her clients further anguish, “the profession is
36
harmed when an attorney intentionally misrepresents matters to a client and behaves in
the manner as did respondent,” and that such behavior warrants disbarment. Pennington,
387 Md. at 598, 876 A.2d at 661–62. By contrast, Shapiro lied to his client about the
status of her claim, and told her that the case had settled when it had not; yet, his
misrepresentations were limited to one case and one client and he since took
responsibility for his actions.
The attorney in Davy was disbarred for multiple violations of MLRPC (1.1, 1.2,
1.3, 1.4, 1.5, 1.15, 1.16, and 8.4) where her misconduct involved dishonesty, multiple
clients, unreasonable fees, and mishandling of client funds. 435 Md. at 683, 711, 80 A.3d
at 326, 343. In that matter, the respondent attempted to file a complaint in federal court,
but it was rejected for being incomplete. Davy, 435 Md. at 685–86, 80 A.3d at 328–29.
The suit was dismissed ultimately. Davy, 435 Md. at 689, 80 A.3d at 330. When the
client learned through other channels that the complaint had been dismissed, she asked
the respondent for return of her retainer. Davy, 435 Md. at 687–88, 80 A.3d at 329.
Without the client’s permission, at a time months later when the attorney should have
known that the representation was over, she filed a corrective motion in federal court and
asked the client for more money. Davy, 435 Md. at 688, 80 A.3d at 330. The respondent
led falsely her client to believe that the case had been filed, although the attorney knew
the complaint had been rejected, yet still asked for more retainer payments. Davy, 435
Md. at 706, 80 A.3d at 340. She told another client that a summons had been issued by
the court when in fact it was not. Davy, 435 Md. at 687, 80 A.3d at 329. Even after her
client learned of the truth of matters and confronted the attorney, Davy attempted to
37
deflect blame by telling the client that she discovered a technical error with the filing.
Davy, 435 Md. at 688, 80 A.3d at 329. She lied further to the client about what
corrective services for which she would charge. Davy, 435 Md. at 687–88, 80 A.3d at
329. In another client matter, it took the respondent four months to file a petition for
bankruptcy after being retained, and thereafter failed to correct deficiencies in that
petition until the bankruptcy court issued a third deficiency notice. Davy, 435 Md. at
691, 80 A.3d at 331. Finally, the respondent mishandled client funds. Davy, 435 Md. at
702–03, 704–05, 80 A.3d at 338–339.
When considering the appropriate sanction for that attorney, we noted that she
committed misconduct with respect to two clients, was intentionally dishonest on at least
six occasions, refused to acknowledge the wrongful nature of her conduct, and had been
suspended indefinitely previously. Davy, 435 Md. at 708–10, 80 A.3d at 341–43. We
noted further that the respondent showed a dishonest or selfish motive involving the
receiving and keeping of money, mislead her clients as to the quality of her
representation, and continued to act on the client’s behalf after the representation had
ended so as to justify continuing to demand payments from the client. Davy, 435 Md. at
711, 80 A.3d at 343. Davy was disbarred. Attorney Grievance Commission v. Davy, 434
Md. 246, 74 A.3d 727 (2013). Although Shapiro misrepresented to Wisniewski the status
of her claim, he confessed ultimately his lie to his client and cooperated with Bar
Counsel. As noted earlier, Shapiro’s misconduct does not implicate MLRPC 1.15.
In Steinberg, 395 Md. 337, 910 A.2d 429, the respondent’s misconduct was
committed with respect to three different parties (two clients and an attorney colleague).
38
Steinberg failed to file a petition for bankruptcy on behalf of a client and then failed to
forestall a foreclosure sale that was the reason for seeking the protection of the
bankruptcy court. Steinberg, 395 Md. at 367–68, 910 A.2d at 447. When asked by the
client for a status update, he responded dishonestly by saying that he had filed the petition
(he filed later one without her consent or signature). Steinberg, 395 Md. at 368–69, 910
A.2d at 447–48. In another client matter, Steinberg entered into an agreement that
limited his liability for professional negligence when his client was not represented
independently and did not have an opportunity to consider the document or obtain advice
of counsel. Steinberg, 395 Md. at 365, 910 A.2d at 445. Steinberg failed to appear at
client meetings, and was unprepared during a mediation session. Steinberg, 395 Md. at
362, 910 A.2d at 444. He did not return a file to a client when asked and refused to
withdraw after a client terminated representation, brought a frivolous suit, and engaged in
a pattern of delay by not cooperating or complying with discovery agreements with
opposing counsel. Steinberg, 395 Md. at 365–66, 910 A.2d at 445–46. Because
Steinberg violated MLRPC 1.1, 1.2, 1.3, 1.4, 1.5(c), 1.8, 1.16, 3.1, 3.2, 3.3, 3.4, 4.1, and,
accordingly, 8.1, we disbarred him. Steinberg, 395 Md. at 371, 376, 910 A.2d at 449,
452.
The misrepresentations of Shapiro, on the other hand, were limited to one client,
although his misrepresentations and the improper agreement were similar to those in
Steinberg. The Respondent did not violate MLRPC 1.5, 3.1, 3.2, 3.3, 3.4, and 4.1 as did
the respondent in Steinberg. See also Park, 427 Md. at 196, 46 A.3d at 1162
(“[D]isbarment is the appropriate sanction when an attorney abandons a client by failing
39
to pursue the client’s interests, failing to communicate with the client, ignoring a client’s
repeated requests for status updates, terminating the representation without notice by
failing wholly to provide effective services, and failing to return unearned fees.
Respondent did all of this and failed to cooperate with Bar Counsel’s lawful demands for
information, in violation of MLRPC 8.1.”); De La Paz, 418 Md. at 558, 16 A.3d at 195
(disbarring an attorney who neglected the affairs of multiple clients, failed to appear at a
hearing, ignored repeated case status inquiries from clients, moved his office without
informing his clients, and failed to respond to the lawful inquiries of Bar Counsel for
information); Fox, 417 Md. at 544–45, 11 A.3d at 785 (“The combination of
[r]espondent’s violations—in particular, abandonment of his clients, misrepresentation,
and failure to cooperate with Bar Counsel’s investigation—convinces us that
[r]espondent is unfit to practice law in Maryland and disbarment is the appropriate
sanction to protect the public.”).
In determining an appropriate sanction, we consider also any aggravating or
mitigating factors. Kremer, 432 Md. at 339, 68 A.3d at 870. A respondent bears the
burden of proving matters of mitigation or extenuation by a preponderance of the
evidence. Md. Rule 16-757(b).
On the subject of mitigating and extenuating circumstances, the hearing judge
noted in the present case:
Respondent offers very little in the way of mitigation, other
than his own testimony that he has faithfully complied with
the terms of his settlement agreement with Wisniewski.
Respondent maintains that his agreement with Wisniewski
was more than adequate in making Wisniewski whole.
40
However, this Court once again notes that no evidence has
been offered in this case regarding the specific nature or
potential value of Wisniewski’s medical malpractice claim
against St. Agnes Hospital. Therefore, the Court is unable to
determine the adequacy of such redress.
(minor alterations added).
In weighing possible aggravating factors, we turn, as we often do, to the suggested
factors of the American Bar Association:
(a) Prior disciplinary offenses;
(b) Dishonest or selfish motive;
(c) A pattern of misconduct;
(d) Multiple offenses;
(e) Bad faith obstruction of the disciplinary proceeding by
intentionally failing to comply with rules or orders of the
disciplinary agency;
(f) Submission of false evidence, false statements, or other
deceptive practices during the disciplinary process;
(g) Refusal to acknowledge the wrongful nature of conduct;
(h) Vulnerability of victim;
(i) Substantial experience in the practice of law;
(j) Indifference to making restitution;
(k) Illegal conduct, including that involving the use of
controlled substances.
American Bar Association, Standards for Imposing Lawyer Sanctions, § 9.22,
Compendium of Professional Responsibility Rules and Standards (2012); see Coppock,
432 Md. at 648, 69 A.3d at 1103. Petitioner suggests that factors (a), (b), (c), (d), (h), and
(i) are implicated here. First, Respondent was the subject of a previous disciplinary
action. The Attorney Grievance Commission reprimanded Respondent on 24 February
2012 for negligently failing to maintain and remit timely withholding taxes to the IRS
and the Maryland Comptroller for five quarters beginning 31 December 2007 and ending
31 December 2008. But see Reinhardt, 391 Md. at 223–24, 230 n.4, 892 A.2d at 541,
41
545 n.4 (determining that an indefinite suspension was appropriate even though the
respondent had been suspended indefinitely previously). Second, Petitioner argues that
Respondent’s lies to Wisniewski stem from a dishonest and selfish motive. The hearing
judge did not make a specific finding as to Respondent’s motives here, but we note for
comparison that in Reinhardt we concluded that there was “no evidence that he acted out
of fraudulent or selfish motive” when an attorney made misrepresentations to his client
out of “absolute embarrassment.” Reinhardt, 391 Md. at 223–24, 230 n.4, 892 A.2d at
541, 545 n.4. Not wishing to admit his mistakes to her, Shapiro created a lie that
snowballed over time. Third, Respondent’s continued misrepresentations to Wisniewski
over a period of several years constitute undoubtedly a pattern of misconduct. Fourth,
Respondent’s conduct involved several distinct violations of the MLRPC. He failed to
communicate with Wisniewski regarding his difficulty in obtaining an expert, the
dismissal of her case, and the expired statute of limitations. He failed to withdraw from
the case when he realized that she may have had a cause of action against him. He lied to
her about the existence of a fictitious settlement. Ultimately, his execution of a
settlement agreement with Wisniewski violated the MLRPC yet again. Fifth, Petitioner
suggests that Wisniewski is a vulnerable victim, as the two knew each other, according to
Respondent’s testimony, “beyond this representation” and had “more than just a lawyer-
client relationship.” This relationship influenced likely Wisniewski’s trust in him—both
in his misrepresentations and further in the purported fairness of the settlement
agreement. Finally, Respondent has substantial experience in the practice of law, having
practiced law in Maryland for over thirty years.
42
Bearing all of the foregoing analysis in mind, we conclude ultimately that
Respondent’s misconduct warrants the sanction of an indefinite suspension.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THE COURT,
INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO
MARYLAND RULE 16-761(b), FOR
WHICH SUM JUDGMENT IS ENTERED
IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
EUGENE ALAN SHAPIRO.
43
IN THE COURT OF APPEALS OF
MARYLAND
Misc. Docket AG No. 83
September Term, 2013
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
EUGENE ALAN SHAPIRO
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Dissenting Opinion by Battaglia, J.
which Watts, J., joins.
Filed: January 30, 2015
I respectfully dissent as to the sanction only because disbarment is the appropriate
sanction in this case, not indefinite suspension.
Shapiro’s conduct amounted to violations of the Maryland Lawyers’ Rules of
Professional Conduct (“MLRPC”) 1.2, 1.3, 1.4, 1.8, 1.16 and 8.4(a), (c) and (d). It is his
actions, in actively misrepresenting the status of a case to his client for five years,
constituting a violation of Rule 8.4(c), which propel his sanction into the realm of
disbarment.
Intentional violations of MLRPC 8.4(c) constitute “most egregious misconduct.”
Attorney Grievance v. Davy, 435 Md. 674, 708, 80 A.3d 322, 342 (2013). “[W]hen a
[lawyer] engages in dishonest or fraudulent conduct as proscribed in M[L]RPC 8.4(c), we
do not discuss ‘degrees’ of dishonesty, but generally order disbarment, absent compelling
extenuating circumstances.” Id. at 709, 80 A.3d at 342 (internal quotations omitted). In
cases where an attorney’s repeated material misrepresentations constitute a pattern of
deceitful conduct, as opposed to an isolated instance, the appropriate sanction, as a general
rule, is disbarment. See Attorney Grievance v. Steinberg, 395 Md. 337, 373, 910 A.2d 429,
450 (2006) (“We long have held that repeated acts of dishonest, fraudulent, or misleading
behavior may warrant a sanction of disbarment.”). If nothing else, lawyers must be honest:
Unlike matters relating to competency, diligence and the like,
intentional dishonest conduct is closely entwined with the most
important matters of basic character to such a degree as to make
intentional dishonest conduct by a lawyer almost beyond excuse.
Honesty and dishonesty are, or are not, present in any attorney’s
character. Disbarment ordinarily should be the sanction for
intentional dishonest conduct.
Id., quoting Attorney Grievance v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488
(2001). “When attorneys engage in dishonest and deceitful conduct for personal gain, this
Court does not hesitate to sanction such conduct with disbarment[.]” Attorney Grievance
v. Levin, 438 Md. 211, 231, 91 A.3d 1101, 1113 (2014).
Attorney Grievance v. Pennington, 387 Md. 565, 876 A.2d 642 (2005), is
instructive. In that matter, the clients’ case was dismissed, but rather than communicating
the dismissal to the clients, Pennington presented a “settlement” of their claims (which
included false supporting documents) to her clients with the intent that they not learn of
the suit’s dismissal. Instead of disclosing the dismissal of the claim, the respondent
attempted to make her clients whole by paying them out of her personal funds what she
thought they would find agreeable and what she perceived to be a fair sum. Also,
Pennington denied repeatedly any dishonesty on her part and misrepresented intentionally
matters in negotiations with a third party health care provider. We described the
circumstances as the respondent’s “attempt to purchase a plenary indulgence with her own
money [which was] more indicative of a selfish plan to conceal than of a praiseworthy
desire to ‘make the client whole.’” Id. at 598, 876 A.2d at 661. The Court concluded that,
regardless of whether she intended to prevent her clients from finding out that they had a
potential legal malpractice claim against her or whether she acted out of a desire to spare
her clients further anguish, “the profession is harmed when an attorney intentionally
misrepresents matters to a client and behaves in the manner as did respondent” and that
such behavior warrants disbarment. The facts of the present case are similar to those in
Pennington. Here, Shapiro did not communicate to Wisniewski the true status of her
2
medical malpractice claim, but instead, to hide the facts, told her that he had secured a
settlement on her behalf. When Wisniewski met with Respondent to learn more about the
terms of her settlement, he told her that he did not have the money. Although the hearing
judge did not determine if Respondent intended to “come clean” at the latter meeting with
Wisniewski, or if he would have paid her from his own funds had he the cash on hand,
Respondent’s deceit is in the same church (if not exactly the same pew) as that of the
attorney in Pennington.
In Steinberg, 395 Md. 337, 910 A.2d 429, the respondent’s misconduct was
committed with respect to three different parties (two clients and an attorney colleague),
yet elements of this case are reminiscent of Shapiro’s case. Steinberg failed to file a
petition for bankruptcy on behalf of a client and then failed to forestall a foreclosure sale
that was the reason for seeking the protection of the bankruptcy court. When asked by the
client for a status update, Steinberg responded dishonestly by saying that he had filed the
petition (he filed later one without her consent or signature). In another client matter,
Steinberg entered into an agreement that limited liability for his professional negligence
where his client was not represented independently and did not have an opportunity to
consider the document or obtain advice of counsel, in violation of MLRPC 1.8. These
actions, in addition to other misconduct (including violations of MLRPC 1.1, 1.4, 1.5(c),
1.16, 3.1, 3.2, 3.3, 3.4 and 4.1), warranted disbarment. As in Steinberg, Shapiro failed to
file a necessary document, in this case, a Certificate of Merit, and then misled his client as
to whether he had done so. Further, Shapiro entered into a settlement agreement with
Wisniewski, in violation of MLRPC 1.8.
3
The attorney in Davy, 435 Md. 674, 80 A.3d 322, was disbarred for violations of
MLRPC 1.1, 1.2, 1.3, 1.4, 1.5, 1.15, 1.16 and 8.4, where her misconduct involved
dishonesty, multiple clients, unreasonable fees and the mishandling of client funds. In that
matter, the respondent attempted to file a complaint in federal court, but it was rejected for
being incomplete. The suit was ultimately dismissed. When the client learned through other
channels that the complaint had been dismissed, she asked the respondent for return of her
retainer. Without the client’s permission, at a time months later when the attorney should
have known that the representation was over, she filed a corrective motion in federal court
and asked the client for more money. The respondent led her client to falsely believe that
the case had been filed, although the attorney knew the complaint had been rejected, yet
still asked for more retainer payments. She told another client that a summons had been
issued by the court when in fact it was not. Even after her client learned of the truth of
matters and confronted the attorney, Davy attempted to deflect blame by telling the client
that she discovered a technical error with the filing. She lied further to the client about what
corrective services for which she would charge. In another client matter, it took the
respondent four months to file a petition for bankruptcy after being retained, and thereafter
failed to correct deficiencies in that petition until the bankruptcy court issued a third
deficiency notice. Finally, the respondent mishandled client funds.
When considering the appropriate sanction, we noted that the respondent showed a
dishonest or selfish motive involving the receiving and keeping of money, mislead her
clients as to the quality of her representation and continued to act on the client’s behalf
after the representation had ended to justify continuing to demand payments from the
4
client. Davy was disbarred. Unlike Davy, Shapiro was not charged with fiscal misconduct.
Nonetheless, Respondent, like Davy, failed to file appropriate pleadings and did not take
responsibility immediately for his failures, but instead misled Wisniewski into thinking
that her claim was alive and, further, that a settlement had been reached.
The misconduct in Attorney Grievance v. Bleecker, 414 Md. 147, 994 A.2d 928
(2010), resembles the misconduct in Shapiro’s matter. In Bleecker, the respondent did not
file timely in court his client’s claim and ultimately missed the statute of limitations
deadline. Once he became aware of the “blown” statute of limitations deadline, a conflict
of interest existed between himself and his client, such that he should have withdrawn from
representation and told his client to seek independent counsel, which he did not. Moreover,
he failed to inform his client that her case was dismissed and that the statute of limitations
expired. Bleecker failed also to correct a material mistake on filed pleadings, and later, to
respond to three letters from Bar Counsel seeking information regarding the client
complaint. Violations of MLRPC 1.1, 1.3, 1.4, 1.16, 3.3, 8.1 and 8.4 were found. We
concluded that the “gravamen of the misconduct” was the respondent’s concealment from
his client of the statute of limitations bar, which precluded her from any possible recovery.
Bleecker’s failure to correct the misrepresentation to the court and his failure to respond to
Bar Counsel were also significant to the Court in its sanction analysis. The appropriate
sanction was disbarment. The “gravamen” of Shapiro’s misconduct is also his concealment
of the true status of Wisniewski’s claim from her and his direct misrepresentations to that
effect, and the improperly obtained settlement agreement.
5
The respondent in Attorney Grievance v. Lane, 367 Md. 633, 647, 790 A.2d 621,
629 (2002) found himself caught in a snowballing series of lies, similar to that of the
Respondent in this matter, although the cumulative lies of the attorney in Lane were of “the
most egregious nature” and the misconduct was committed against two clients. Lane took
no action on a client’s case and filed no pleadings of any kind, yet told his client that a
subpoena had been issued for the opposing party. He met his client at the courthouse and
told his client that the opposing party had failed to appear. Lane then took his leave by
pretending to have a meeting with the judge, and returned to inform falsely his client that
the judge would rule in his favor. He claimed later that the opposing party had filed a
“stay.” With respect to another client, Lane did not communicate properly the terms of
their fee arrangement, paid some of the client’s bills from his own funds, and did not file
the appropriate pleadings in order to secure an injunction against a utility threatening to
turn off his client’s water service. He then said that he filed a motion for sanctions against
the water company for turning off his client’s water, and paid his client a sum of money
that he said came from the company as a result of the sanctions action, but, in reality, came
from his own funds. Finally, he told the same client that he filed a motion for summary
judgment, which was granted, resulting in an award to her of over 11 million dollars. She
was told to come to the courthouse with a suitcase and security to carry the cash home.
When she arrived at the courthouse, he confessed that he had misled her completely
regarding the status of her lawsuit and that no money was forthcoming. It was little surprise
that Lane was disbarred. Like the attorney in Lane, Shapiro misrepresented to Wisniewski
6
the status of her claim, and then concocted a fictional “settlement” of her claim against the
hospital.
In Attorney Grievance v. Brown, 426 Md. 298, 44 A.3d 344 (2012), the respondent
committed various acts of misconduct with respect to four clients. He failed to pursue a
client’s claims in a timely manner, which caused the statute of limitations to expire before
the case was dismissed for a failure to prosecute. The attorney failed also to answer
discovery requests and incurred sanctions in another client matter. Brown did not inform
his clients about the dismissal or the sanctions and ignored repeated requests for
information from another client. Further, Brown did not return documents in his case file
to a client in a timely manner, and also did not respond to two letters from Bar Counsel
requesting information regarding the client’s complaint. Such conduct violated MLRPC
1.1, 1.2, 1.3, 1.4, 1.16, 3.2 and 8.1(b). We held also that the manner in which Brown misled
his client violated MLRPC 8.4(c), as he told one of his clients that the case was pending in
arbitration, when, in actuality, it was dismissed two years previously. Given the “gravity
and pervasiveness” of Brown’s misconduct, we concluded that disbarment was the
appropriate sanction. Id. at 328, 44 A.3d at 362; see also Attorney Grievance v. Kremer,
432 Md. 325, 335-36, 340-41, 68 A.3d 862, 866-69, 871 (2013) (disbarring an attorney
who committed misconduct with respect to four clients, failed to cooperate with Bar
Counsel, failed to file bankruptcy petitions for multiple clients, missed hearings, caused a
case to be dismissed, failed to respond to clients, abandoned cases before completion, and
failed to return documents and unearned fees); Attorney Grievance v. Park, 427 Md. 180,
196, 46 A.3d 1153, 1162 (2012) (“[D]isbarment is the appropriate sanction when an
7
attorney abandons a client by failing to pursue the client’s interests, failing to communicate
with the client, ignoring a client’s repeated requests for status updates, terminating the
representation without notice by failing wholly to provide effective services, and failing to
return unearned fees. Respondent did all of this and failed to cooperate with Bar Counsel’s
lawful demands for information, in violation of MLRPC 8.1.”).
When an attorney’s misrepresentations are paired with violations of the MLRPC
provisions regarding unreasonable fees or client or third party property (and especially
money), the appropriate sanction is most often disbarment. In Attorney Grievance v.
Lawson, 428 Md. 102, 117, 50 A.3d 1196, 1205 (2012), an attorney was disbarred for
violations of MLRPC 1.5, 1.8, 1.15 and 8.4(c) and (d). Lawson was dishonest with a client
about whether an attorney grievance matter was pending against him. The attorney also
charged his client an unreasonable fee and mishandled a subsequent fee dispute by inducing
the client to enter into a settlement agreement that gave the attorney a lien on the client’s
settlement proceeds of a marital property dispute. The terms of the settlement agreement
were not communicated in a way that the client could understand, and the client did not
give informed consent, written or otherwise, as to the essential terms of the transaction.
Because Lawson created and then mismanaged client fee disputes, and was motivated by
a desire to obtain fees to which he was not entitled from an elderly man in poor health with
limited means, we disbarred him. The Respondent in the present case executed an
agreement with Wisniewski that violated the MLRPC in the same critical way as the
agreement in Lawson: Respondent did not give Wisniewski a written disclosure of the
8
desirability of seeking independent counsel prior to entering into the agreement with
Respondent. By the same token, there is no MLRPC 1.15 violation in Shapiro’s case.
Although Shapiro’s violations do not involve multiple clients and cases, his
misconduct spans a multiple-year period. He actively misrepresented the status of the case
to Wisniewski for five years and failed to inform her of the difficulties he had in finding a
doctor to execute a Certificate of Merit. Not only did Respondent lie to Wisniewski about
the status of her case, his lies spiraled: he told her that the case had settled when no such
settlement had occurred, but ultimately he did not have the money available to fund the
“settlement.” 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. Respondent violated
additional MLRPC by settling a potential legal malpractice claim with Wisniewski without
advising her in writing of the desirability of seeking the advice of independent counsel or
obtaining her informed consent, confirmed in writing, to the essential terms of the
transaction.
Accordingly, I would order Respondent’s disbarment.
Judge Watts authorizes me to state that she joins the views expressed in this
dissenting opinion.
9