Attorney Grievance Commission v. Trye , 444 Md. 201 ( 2015 )

Attorney Grievance Commission v. Shauntese Curry Trye
Misc. Docket AG No. 34, September 2014 Term
Attorney Discipline - Intentional Misrepresentation - Fraudulent Alteration of Draft
Settlement Agreement - Disbarment. Disbarment is the appropriate sanction when an
attorney makes intentional material misrepresentations on a loan modification application,
makes purposeful false representations to opposing counsel and the circuit court concerning
compliance with her discovery obligations, and fraudulently alters a negotiated draft
settlement agreement and consent order before providing them to the opposing party and
counsel for signature.
MLRPC 3.2, 3.3(a)(1) & (4), 3.4(c) & (d), 4.1(a)(1), 4.2(a), 8.4(c) & (d).
Circuit Court for Baltimore City
Case No. 24-C-14-004854
Argued: May 12, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 34
September Term, 2014
A TTORNEY G RIEVANCE C OMMISSION
OF MARYLAND
v.
S HAUNTESE C URRY T RYE
Barbera, C.J.
*Harrell,
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by McDonald, J.
Harrell and Battaglia, JJ., concur.
Filed: July 27, 2015
*Harrell, J., now retired, participated in the
hearing and conference of the case while an active
member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, he also participated in the decision and
adoption of this opinion.
There is a saying, sometimes attributed to Abraham Lincoln, that a lawyer who
represents himself has a fool for a client. A corollary, perhaps, is that such a client has a
lawyer who may be blinded by self-interest to the standards of professional conduct. This
case concerns an attorney who represented herself for a time in her own divorce litigation,
and who made some unfortunate choices that included misrepresentations to the court, a
mortgage lender, and others, and the deceptive alteration of draft settlement documents for
her own advantage. As a result, she loses her license to practice law in Maryland.
I
Background
A. Procedural Context
On August 1, 2014, the Attorney Grievance Commission of Maryland
(“Commission”) filed a Petition for Disciplinary or Remedial Action against Shauntese Curry
Trye alleging several violations of the Maryland Lawyers’ Rules of Professional Conduct
(“MLRPC”) arising out of an alleged fraudulent power of attorney, alleged fraudulent
transfer of real property, misrepresentations to a mortgage lender, misconduct in her divorce
litigation (including the fraudulent alteration of a draft settlement agreement and consent
order), misrepresentation in a military service affidavit, and the failure to file income tax
returns for several years. The Commission alleged that Ms. Trye violated MLRPC 3.2
(expediting litigation) 3.3(a)(1) & (4) (false statement to tribunal), 3.4(c) & (d) (fairness to
opposing party), 4.1(a) (false statement to third party), 4.2 (communication with person
represented by counsel), 8.4(c) (dishonest conduct) and 8.4(d) (conduct prejudicial to the
administration of justice).
This Court designated Judge Videtta Brown of the Circuit Court for Baltimore City
to conduct an evidentiary hearing, and to provide findings of facts and recommended
conclusions of law regarding the alleged violations.
Following the hearing, the hearing judge issued a memorandum detailing her findings
of fact and conclusions of law. The hearing judge found clear and convincing evidence that
Ms. Trye committed some, but not all, of the alleged violations of the MLRPC. Ms. Trye
filed exceptions to both the findings of fact and conclusions of law. The Commission
excepted to some of the conclusions of law, arguing that the facts found by the hearing judge
proved all of the charged violations. This Court held oral argument on May 12, 2015, to
consider the parties’ exceptions and recommendations as to sanction.
B. Facts
We accept the hearing judge’s findings of fact unless clearly erroneous. Maryland
Rule 16–759(b)(2)(B). The hearing judge’s findings of facts and the undisputed matters in
the record provide the basis for the facts which follow. Ms. Trye’s exceptions to the findings
of fact are discussed below with the findings to which they relate.
Bar Admission
Ms. Trye was admitted to the Maryland Bar on December 16, 2003. Since her
admission, she has practiced law in Baltimore as a solo practitioner and as a partner in
various law firms.
2
Marriage
In September 2003, Ms. Trye married Stephen Trye. To their union, one child was
born. In June 2012, Ms. Trye filed for divorce in the Circuit Court for Baltimore County.
According to court records, a judgment of absolute divorce was ultimately entered on April
23, 2015.1
Real Property Related to Allegations of Misconduct
Pertinent to this case, Ms. Trye and Mr. Trye maintained the following two properties
during their marriage: (1) 1304 Idylwood Road, Pikesville, Maryland (“Idylwood Road
property”) and (2) 11 Whispering Court, Owings Mills, Maryland (“Whispering Court
property”).2 Mr. Trye had owned the Idylwood Road property prior to the marriage. During
the marriage, Mr. Trye alone purchased the Whispering Court property, in which the couple
resided together for a time.
Transfer of Title to Idylwood Road Property
Mr. Trye was incarcerated for a period of time during the years 2002 through 2005.3
During his imprisonment, Mr. Trye executed at least two powers of attorney (“POA”)
1
According to the court record, Ms. Trye then resumed her maiden name, Shauntese
Curry. Because she is still listed under her married name with the Client Protection Fund (as
well as in the papers in this case), we refer to the Respondent as Ms. Trye in this opinion to
avoid confusion.
2
Mr. and Ms. Trye owned other properties during their marriage. Only these two are
pertinent to this proceeding.
3
Mr. Trye was incarcerated for possession with intent to distribute marijuana.
3
naming Ms. Trye as his agent.4 On June 23, 2004, the Idylwood Road property was
conveyed from Mr. Trye to Mr. and Ms. Trye as tenants by the entirety. On October, 14,
2004, the property was again conveyed, this time from Mr. and Ms. Trye to Ms. Trye alone.
Ms. Trye prepared this deed and signed her name as Mr. Trye’s attorney in fact.
The Commission alleged that Ms. Trye had fraudulently re-titled the property to
encumber it with loans for her own benefit. Based on the testimony of both Mr. and Ms.
Trye, the hearing judge concluded that they were both trying to re-finance the Idylwood
Road property at a time when Mr. Trye was in prison and that the POAs and title transfers
were related to that effort. The hearing judge concluded that there was no evidence of fraud
on Ms. Trye’s part in the creation of the POAs and the deeds – in particular, that there was
not clear and convincing evidence that the transfer of title to the Idylwood Road property to
Ms. Trye alone was fraudulent.
False Representation on Loan Modification Request for Idylwood Road Property
During 2013, Ms. Trye submitted applications for loan modifications with respect to
the Idylwood Road property to GMAC Mortgage (“GMAC”) and OCWEN Loan Servicing,
LLC. (“OCWEN”). In connection with those applications, Ms. Trye represented, on various
occasions, to GMAC, OCWEN, or both that the Idylwood Road property was owner-
4
One such POA, executed by Mr. Trye on January 21, 2005, was introduced into
evidence at the hearing. It gave Ms. Trye general powers “to be my agent and attorney, for
me, in my name, place and stead and on my behalf to act in any way in which I myself could
act, if I were personally present….” The POA also gave Ms. Trye the power to “sell [or]
lease for any period of time… any property…” Although the transactions described in the
text occurred before the 2005 POA was executed, both Ms. Trye and Mr. Trye testified that
Mr. Trye signed similar POAs before those transactions.
4
occupied, her primary residence, not a rental property, or vacant at the time of the
application. The hearing judge found that all of those representations were false.
In fact, at the time of applications, Ms. Trye did not live in the Idylwood Road
property, but rented it to Melvin and Rebecca Truesdale. Although the Truesdales had
originally dealt with Mr. Trye as their landlord, in August 2012 Ms. Trye directed them to
make rental payments directly to her bank account. She never terminated their lease or
evicted them. From January to March 2013 and May to September 2013, Ms. Trye received
and accepted rental payments from the Truesdales. During her testimony in her divorce case
on June 6, 2013, in the Circuit Court for Baltimore County, she stated that she intended for
the Truesdales to remain in the Idylwood Road property.
The hearing judge found that, from 2006 to 2013 (except for a short period of time),
Ms. Trye lived exclusively at the Whispering Court property and intended to stay there. In
an email dated March 15, 2013 relating to the foreclosure of the Whispering Court property,
Ms. Trye explained, “I currently reside in the home with my four year old son… I anticipate
the Court awarding me three years use and possession of the family home… In addition, I
have been granted exclusive use and possession of the home until December 17, 2014… I
am interested in continuing to live in the home…”
The hearing judge found that Ms. Trye knowingly misrepresented that the Idylwood
Road property was her primary residence, was owner-occupied, was not a rental property,
or was vacant at the time of her loan modification application in order to obtain a more
favorable modification. Ms. Trye testified that she believed that the term “primary
5
residence” meant “property you own.” The hearing judge found that her testimony was not
credible and found that Ms. Trye knew the Idylwood Road property was not her primary
residence and that she never intended for it to be her primary residence.5
Discovery Violations in Divorce Case
In June 2012, Ms. Trye filed for divorce from Mr. Trye in the Circuit Court for
Baltimore County. Ms. Trye represented herself for much of the case, although she
eventually retained Anthony Butler as her attorney. During the proceedings pertinent to this
case, Mr. Trye was represented by Michael Hamburg.
On March 5, 2013, Mr. Hamburg filed a motion for sanctions against Ms. Trye for her
failure to respond to discovery. Mr. Hamburg submitted documentation that Ms. Trye had
been served with interrogatories and a request for production of documents, yet failed to
respond. When Ms. Trye failed to respond to a second request for production of documents
and failed to appear for deposition scheduled for March 22, 2013, and after attempting to
5
Ms. Trye argues that the hearing judge erred in finding that she misrepresented the
status of the Idylwood Road property to GMAC and OCWEN. She asserts that she expected
to be evicted by Mr. Trye from the Whispering Court property, that she always intended to
live at the Idylwood Road property once the loan modification occurred, and that GMAC and
OCWEN were aware of her plans. Ms. Trye presented no evidence supporting that
contention other than her own testimony. Her contemporaneous statement that she planned
to remain in the Whispering Court property and her statement in the divorce case that she had
no intention of evicting the tenants in the Idylwood Road property contradicted that assertion.
Moreover, Ms. Trye admittedly had not lived at the Idylwood Road property since 2007. The
hearing judge’s finding that Ms. Trye misrepresented the status of the Idylwood Road
property during the loan modification process is not clearly erroneous. We overrule the
exception.
6
resolve the discovery issues by letter and e-mail, Mr. Hamburg filed additional motions for
sanctions.
On June 6, 2013, the Circuit Court for Baltimore County held a motions hearing.
Upon questioning about whether she had responsive documents in her possession, Ms. Trye
stated she had issued three subpoenas, one of which she had sent to E-Mortgage Management
Corporation (“E-Mortgage”). Ms. Trye said that she did not receive any documents from E-
Mortgage. However, Mr. Hamburg noted that she had attached documents from E-Mortgage
in a previous pleading. Ms. Trye then admitted that she had received documents from E-
Mortgage in response to the subpoena and claimed to have sent these documents to Mr.
Hamburg via e-mail. The circuit court in the divorce proceeding ordered Ms. Trye to provide
evidence of that e-mail, but Ms. Trye failed to produce such an e-mail.
At the June 6, 2013 hearing, the circuit court also inquired as to whether Ms. Trye had
subpoenaed other documents and whether she had produced any such documents to Mr.
Hamburg. Ms. Trye answered that she had issued only three subpoenas. Mr. Hamburg then
provided evidence that Ms. Trye had issued an additional subpoena for Mr. Trye’s bank
records at Bank of America. Ms. Trye had not provided a copy of that subpoena to Mr.
Hamburg.
At the conclusion of the June 6, 2013 hearing, the circuit court ordered Ms. Trye to
produce the requested documents and ordered her to attend a deposition in the courthouse
scheduled for July 19, 2013 at 9:30 a.m. Ms. Trye failed to provide the documents required
by the order and failed to attend the deposition. On September 17, 2013, following the filing
7
of yet another motion for sanctions by Mr. Hamburg, the court issued an Order for Sanctions
and an Award for Fees against Ms. Trye.6
The hearing judge found that Ms. Trye knowingly made false statements to the circuit
court during the June 6, 2013 hearing. Specifically, Ms. Trye misrepresented to the court
that she had not receive subpoenaed documents from E-Mortgage Corporation and that she
did not subpoena documents from Bank of America. In addition, Ms. Trye purposefully
6
In her exception, Ms. Trye contends that she had complied with some discovery
requests on February 8, 2013. Ms. Trye also argues that she did not receive proper notice to
attend the originally scheduled deposition. She states that she did not appear for the court-
ordered deposition on July 19, 2013 at 9:30 a.m. because she assumed that the deposition was
scheduled for the same time as the originally scheduled deposition – 10:00 a.m. – even
though the written court order stated the earlier time.
Although Ms. Trye offers several excuses for her failure to comply with various
discovery requests, she apparently does not dispute the basic elements of the hearing judge’s
fact finding – that, after the circuit court ordered Ms. Trye to produce the E-Mortgage and
Bank of America documents and to appear for her deposition, Ms. Trye failed to do so. In
addition, the hearing judge was entitled to credit the testimony of Mr. Hamburg that Ms. Trye
did not appear, even though he waited until approximately 10:15 a.m. at the room scheduled
for the deposition and to disbelieve the testimony of Ms. Trye that she failed to appear for
the deposition because of a mistaken belief about the starting time. See Attorney Grievance
Comm’n v. Zimmerman, 428 Md. 119, 137, 50 A.3d 1205 (2012) (deference to the hearing
judge’s credibility findings is appropriate because of the judge’s ability to assess the
witnesses’ demeanor-based credibility).
In her exception, Ms. Trye also accuses Mr. Hamburg of failing to comply with her
discovery requests. These allegations are not supported by evidence in the record and, in any
event, the question of Mr. Hamburg’s compliance with discovery requests is not before us.
Accordingly, we do not discuss these allegations.
8
failed to comply with discovery requests and discovery orders and purposefully failed to
comply with the court’s order to attend the deposition on July 19, 2013.7
Testimony Concern Whispering Court Property Value
The Commission alleged that Ms. Trye had made contradictory statements in the
divorce litigation about the value of the Whispering Court property – in particular, whether
there was any equity in the property. During the June 6, 2013 hearing in her divorce
proceeding, Ms. Trye was asked about the value of her residence – the Whispering Court
property. She testified under oath that she “[did not] believe the house [was] under water”
and that “there [was] some equity” in the property. She testified that, if the property had to
be sold, the sale price would be between $369,000 and $379,000. The hearing judge found
that this testimony was not a misrepresentation of the Whispering Court’s property value
because Ms. Trye testified only to what she believed the property was worth.
Fraudulent Alteration of the Draft Settlement Agreement and Consent Order
After Ms. Trye retained Anthony Butler to represent her in the divorce proceedings,
the parties engaged in settlement discussions. The parties reached agreement on child
custody and the division of property, which was to be reduced to writing in a settlement
agreement and consent order. Mr. Butler e-mailed a draft settlement agreement and consent
7
In her exception, Ms. Trye asserts that the hearing judge erred in concluding that her
false statements to the circuit court were intentional. Ms. Trye argues that her statements
were the product of a faulty memory and that, once she refreshed her recollection, she
corrected them. This argument depends solely on her own testimony, which the hearing
judge did not find credible. We defer to the hearing judge’s assessment of credibility and
overrule the exception.
9
order to Mr. Hamburg. Both documents included language on child custody that read, in
pertinent part, that “the parties shall have shared legal and physical custody of their minor
child[.]” Mr. Hamburg and Mr. Butler agreed to present the executed settlement agreement
and consent order to the court on October 4, 2013.
On the evening of October 3, Ms. Trye gave Mr. Trye a sealed envelope purportedly
containing the agreed-upon draft settlement agreement and consent order. Ms. Trye told Mr.
Trye that she would be unable to attend the October 4 hearing and had already signed the
documents in the envelope. Mr. Trye did not open the envelope until the following day,
when he and both counsel signed the documents in the courthouse, assuming that the
documents reflected the agreement that the parties had reached the previous day.
After leaving the courthouse, Mr. Hamburg realized that the documents that Mr. Trye
had received from Ms. Trye did not match the originals drafted by Mr. Butler. Specifically,
the provision that “the parties shall have shared legal and physical custody of their minor
child…” had been altered to “the parties shall have shared legal and Plaintiff [Ms. Trye] shall
have primary physical custody of their minor child…” Neither Mr. Hamburg nor Mr. Trye
had consented to the alterations. Following that discovery, the parties returned to court on
October 8, 2013 with their respective counsel and executed a revised settlement agreement
and consent order that accurately reflected the negotiated terms as to custody and submitted
it to the court.
Before the hearing judge, Ms. Trye testified that she altered the documents because
she and Mr. Trye had agreed to change the custody order to give her primary physical
10
custody of the child. (Mr. Trye denied any such agreement in his own testimony). The
hearing judge did not find her testimony credible. The hearing judge found that Ms. Trye
purposefully altered the agreed-upon terms of the settlement agreement and consent order
without the knowledge or permission of Mr. Trye and Mr. Hamburg.8
Communication with a Represented Person
From the time she filed her divorce case in June 2012 through August 2013, Ms. Trye
represented herself in that case. Throughout 2013, Mr. Hamburg represented Mr. Trye in the
divorce litigation. Although she was aware that Mr. Trye had retained counsel, Ms. Trye
sent several text messages and spoke with Mr. Trye on numerous occasions regarding the
divorce case. The hearing judge found that she did so, even after Mr. Hamburg requested
that she terminate direct communication with his client about the litigation. The hearing
judge specifically referred to the meeting that Ms. Trye initiated with Mr. Trye on October
3, 2013 when she gave him the envelope with altered settlement drafts.
Ms. Trye does not appear to deny that she communicated with Mr. Trye without the
presence of his counsel. Rather, she argues that the communications that took place were
8
In her exception, Ms. Trye essentially argues that the hearing judge should have
believed her testimony that it was Mr. Hamburg who had altered the agreed-upon terms. The
hearing judge rejected that testimony in favor of other testimony indicating that it was Ms.
Trye who had done so. The draft documents emailed by Mr. Butler, Ms. Trye’s attorney, to
Mr. Hamburg provided for shared physical custody of the child. Mr. Trye and Mr. Hamburg
both testified that Ms. Trye represented that the executed documents that she provided to Mr.
Trye incorporated the negotiated terms, when in fact Ms. Trye had changed the terms to
make them more favorable to herself. The hearing judge was not clearly erroneous in finding
that Ms. Trye altered the consent order and settlement agreement for her own advantage
without informing Mr. Trye or Mr. Hamburg.
11
authorized by Mr. Hamburg – or at least did not come within the category of subjects that
Mr. Hamburg had forbidden her to discuss with his client. Her exception is more pertinent
to the legal issue of whether the communications violated MLRPC 4.2 and we thus discuss
it in more detail in that context.
Misrepresentation in Military Service Affidavit
On July 12, 2013, Ms. Trye filed a complaint in the District Court against a former
client, Christian Scott, to recover unpaid legal fees. In the complaint, Ms. Trye averred,
under the penalties of perjury, that Mr. Scott was not in the military. Her complaint stated
that she was able to confirm that Mr. Scott was not in the military because he “was a former
client and indicated, when asked, that he was never in the military.”
At the hearing in this proceeding, Mr. Scott testified that, while he had never served
in the military, Ms. Trye had never inquired as to his military service. Although Ms. Trye
testified as that she employed extensive intake procedures for new clients, she provided no
documentation, such as a file record or intake sheet noting a determination of Mr. Scott’s
military status.
The hearing judge found that Ms. Trye misrepresented Mr. Scott’s military status, as
well as the basis of her knowledge of Mr. Scott’s military status, on a court document. In her
exception, Ms. Trye argues that the hearing judge’s finding was clearly erroneous. We agree
with her in part. Ms. Trye indicated in her District Court complaint that Mr. Scott was not
in the military – a statement that, it is undisputed, is true. Mr. Scott himself testified before
the hearing judge that he had never served in the military. The hearing judge thus clearly
12
erred in finding that Ms. Trye misrepresented Mr. Scott’s military status. However, we do
not disturb the hearing judge’s finding that Ms. Trye misrepresented the basis of her
knowledge as to Mr. Scott’s military status. Ms. Trye failed to produce any documentation
supporting her description of her intake interview, which was contradicted by Mr. Scott, and
the hearing judge did not find her testimony credible. We thus grant the exception in part
and deny it in part.
Failure to File Income Tax Returns
Ms. Trye admitted in her response to the Commission’s petition that she failed to file
federal and state income tax returns for the years 2009, 2010, 2012, and 2013. In her
exception, Ms. Trye argues that her failure to file was not willful as she had difficulty filing
her returns because of the need for cooperation by her husband and because her former law
firm is currently in the process of dissolution.
The Commission did not allege that the failure to file returns was willful and the
hearing judge made no finding in that respect. We discuss the significance of the question
of “willfulness” in greater detail below with respect to the alleged violation of MLRPC
8.4(d).
13
II
Discussion
The hearing judge concluded that Ms. Trye violated MLRPC 3.2, 3.4(c) & (d), 4.2 (a),
8.4(c) & (d), but that she did not violate 3.3(a)(1) & (4), 4.1(a)(1) & (2). Ms. Trye excepted
to the hearing judge’s proposed conclusions that she had committed any violations. The
Commission filed an exception to the hearing judge’s proposed conclusions that Ms. Trye
had not committed certain violations. The Commission asserts that the intentional
misconduct and purposeful misrepresentations found by the hearing judge support the
conclusion that Ms. Trye committed those violations as well.
This Court reviews conclusions of law by the hearing judge de novo. Maryland Rule
16–759(b)(1). In the course of that review, we consider the parties’ exceptions.
MLRPC 3.2 – Expedite Litigation
MLRPC 3.2 states:
A lawyer shall make reasonable efforts to expedite litigation
consistent with the interests of the client.
The failure to comply with discovery requests, resulting in court-ordered sanctions,
is a violation of MLRPC 3.2. Attorney Grievance Comm’n v. Steinberg, 395 Md. 337, 365-
66, 910 A.2d 429 (2006) (failure of attorney to respond to discovery requests and repeated
delay of depositions, ultimately resulting in an award of sanctions, violated MLRPC 3.2).
In addition, the failure to attend a court-ordered deposition constitutes a violation of MLRPC
3.2. Attorney Grievance Comm’n v. Culver, 381 Md. 241, 279-83, 849 A.2d 423 (2004).
14
Ms. Trye failed to comply with discovery requests resulting in the imposition of sanctions
and failed to attend the court-ordered deposition. Accordingly, she violated MLRPC 3.2.
Ms. Trye argues that, since she represented herself during the divorce proceeding and
did not represent the interests of a “client,” MLRPC 3.2 does not apply. The phrase
“consistent with the interests of a client” in MLRPC 3.2 does not except attorneys who
represent themselves from the obligation to make reasonable efforts to expedite litigation.
Rather, this language is a qualifier on the lawyer’s duty to expedite litigation. What is
considered reasonable will depend in part on how the pace of the litigation affects the client’s
interests.9 Thus, Ms. Trye is not excused from her obligations to the court and to the
opposing party to make reasonable efforts to expedite the litigation merely because she did
not have a client separate from herself. The hearing judge found that Ms. Trye purposefully
failed to comply with her discovery obligations, including attendance at the court-ordered
deposition, and that she made knowing misrepresentations to the presiding judge about her
lack of compliance. Misrepresentation and purposeful obstruction of discovery is not a
reasonable way of accommodating the duty to expedite litigation with the interests of a
client.
9
For a more detailed discussion regarding instances where a lawyer’s duty to expedite
litigation and the interests of a client may come into conflict, see Ernest F. Lidge, III, Client
Interests and a Lawyer’s Duty to Expedite Litigation: Does Model Rule 3.2 Impose Any
Independent Obligations?, 83 St. John’s L. Rev. 307 (Winter 2009).
15
MLRPC 3.3 – Candor Toward the Tribunal
MLRPC 3.3(a) provides, in pertinent part:
A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal
or fail to correct a false statement of material fact or law
previously made to the tribunal by the lawyer;
* * *
(4) offer evidence that the lawyer knows to be false.
If a lawyer has offered material evidence and comes to know of
its falsity, the lawyer shall take reasonable remedial measures.
MLRPC 3.3 is directed at attorneys acting in a representational capacity. See Attorney
Grievance Comm’n v. Van Dusen, ___ Md. ___, Slip op. at 13 (June 23, 2015). This Court
has not excluded from the application of MLRPC 3.3 those attorneys who represent
themselves in litigation. See Attorney Grievance Comm’n v. Myers, 333 Md. 440, 442-44,
635 A.2d 1315 (1994) (finding a violation of MLRPC 3.3 where an attorney misrepresented
his traffic record in the District Court, indicating he had no points on his driver’s license
when in fact he did).
As noted with respect to the violation of MLRPC 3.2, the hearing judge found that
Ms. Trye made several knowing misrepresentations in the circuit court during her divorce
case, most notably to the judge presiding over that case. Such conduct violates MLRPC
3.3(a)(1) & (4). This was not among the violations noted by the hearing judge. Accordingly,
we grant the Commission’s exception in this regard.
16
MLRPC 3.4 – Fairness to Opposing Party and Counsel
MLRPC 3.4 provides, in pertinent part:
A lawyer shall not:
* * *
(c) knowingly disobey an obligation under the rules
of a tribunal except for an open refusal based on an assertion
that no valid obligation exists;
(d) in pretrial procedure, make a frivolous discovery
request or fail to make reasonably diligent effort to comply with
a legally proper discovery request by an opposing party;
The deliberate failure to produce documents in discovery or to appear for deposition
in compliance with discovery requests and a court order is a violation of MLRPC 3.4.
Steinberg, 395 Md. at 365-67, (finding that an attorney violated MLRPC 3.4 after repeatedly
delaying the discovery process, delaying depositions, and failing to provide requested
documents); Attorney Grievance Comm’n v. Mininsohn, 380 Md. 536, 568-70, 846 A.2d 353
(2004) (finding MLRPC 3.4 violated when an attorney missed two hearings due to
unawareness of the first hearing, and unsubstantiated claims that he could not travel to the
second hearing due to inclement weather).
Ms. Trye repeatedly failed to produce discovery materials and failed to attend a court-
ordered deposition. The hearing judge found that Ms. Trye purposefully failed to comply
with the court order requiring her to submit to a deposition. We agree with the hearing judge
that this was a violation of MLRPC 3.4.
17
MLRPC 4.1 – Truthfulness in Statements to Others
MLRPC 4.1(a)(1) reads:
In the course of representing a client, a lawyer shall not
knowingly ... make a false statement of material fact or law to
a third person;
MLRPC 4.1(a)(1) requires that a lawyer be truthful when dealing with others in
litigation. Comment [1]. An intentional misrepresentation of material fact to opposing
counsel violates MLRPC 4.1. Attorney Grievance Comm’n v. Mixter, 441 Md. 416, 473, 109
A.3d 1 (2015) (concluding that misrepresentation of material fact to opposing counsel
violated MLRPC 4.1). The hearing judge found that Ms. Trye intentionally misrepresented
to the opposing counsel during her divorce proceedings what documents she had subpoenaed,
in violation of MLRPC 4.1(a)(1). Although the hearing judge did not explicitly cite Ms.
Trye’s misrepresentation concerning the altered settlement documents, that episode also
supports the conclusion that she violated MLRPC 4.1(a)(1). We thus grant the
Commission’s exception in that regard.
MLRPC 4.2 – Communication with Person Represented by Counsel
MLRPC 4.2 states, in pertinent part:
(a) .... [I]n representing a client, a lawyer shall not
communicate about the subject of the representation with a
person who the lawyer knows is represented in the matter by
another lawyer unless the lawyer has the consent of the other
lawyer or is authorized by law or court order to do so.
(emphasis added).
18
MLRPC 4.2 prohibits an attorney – when acting in a representational capacity – from
discussing a legal matter with a person the lawyer knows to be represented with respect to
that matter, unless the attorney has the consent of counsel or other authorization. Any mode
of communication involving the subject of the representation, including text messages and
letters, can violate MLRPC 4.2. Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 69
A.3d 1121 (2013) (finding a violation of MLRPC 4.2 after an attorney repeatedly
communicated through text message with her client’s wife, represented by counsel at the
time of the messaging, regarding a pending divorce action); Attorney Grievance Comm’n v.
Sperling, 434 Md. 658, 76 A.3d 1172 (2013) (attorney violated MLRPC 4.2 by sending a
letter regarding pending legal matter to a party who had already retained legal counsel).
Ms. Trye was well aware that Mr. Hamburg represented her estranged husband, the
adverse party in her divorce case. Until August 2013, Ms. Trye represented herself in that
matter. The hearing judge found that, although Ms. Trye knew Mr. Hamburg represented
Mr. Trye and although Mr. Hamburg requested that she cease communications with his client
concerning the litigation, she contacted Mr. Trye repeatedly regarding the divorce litigation
and thereby violated MLRPC 4.2.
Ms. Trye excepts to this conclusion, arguing that Mr. Hamburg authorized her to
communicate directly with his client on child custody issues and that her communications
with Mr. Trye fell within that authorization, citing only her own testimony at the hearing.
The hearing judge discounted Ms. Trye’s testimony as not credible and we defer to the
19
hearing judge’s assessment on that score. We deny Ms. Trye’s exception on the ground that
the communication was authorized by Mr. Hamburg.
We decline, however, to find a violation of MLRPC 4.2 on a somewhat different
ground. The only specific incident cited by the hearing judge to illustrate how Ms. Trye had
violated Mr. Hamburg’s instruction not to communicate directly with his client about the
divorce litigation was her meeting with Mr. Trye on the evening of October 3, 2013. At that
meeting, she talked with Mr. Trye about the divorce and gave him the signed documents to
take to court the next day. But, by that time, Ms. Trye had retained Mr. Butler for the case
and presumably was no longer representing herself – i.e., she was no longer acting in a
representational capacity that is the premise of MLRPC 4.2. Thus, finding a violation of
MLRPC 4.2 based on the October 3 meeting alone would suggest that an individual who is
a member of the bar, even when not acting in a representational capacity in a case, is
restricted from directly communicating with other parties who are represented by a lawyer.
Such a holding could have significant consequences beyond this case. Direct
communication between parties, without the intermediation of their lawyers, is often a bad
idea, regardless of whether any of the parties is a lawyer. On the other hand, direct
communication between the principals – leaving the lawyers out of the room – is sometimes
the path to settlement of a dispute. Under the principle implicitly embraced by the hearing
judge, the latter option would never be available if one or more of the parties happened to be
a member of the bar, even if not acting in that capacity in the dispute. We hesitate to say that
Rule 4.2 always forbids such communication. See HTC Corp. v. Technology Properties,
20
Inc., 715 F. Supp. 2d 968, 972 & n.1 (N.D. Cal. 2010) (holding that similar California rule
did not bar corporate chairman who happened to be member of the bar from directly
contacting management of adversary company in litigation about settlement as application
of the rule in those circumstances “effectively would prevent persons licensed to practice law
... from serving as officers or directors in corporations and engaging in settlement
conversations outside of the presence of counsel”). Moreover, the issue has not been briefed
in this case and the record is not clear on whether, and to what extent, Ms. Trye continued
to act as an attorney in her divorce case after Mr. Butler entered the case. We do not further
resolve the application of MLRPC 4.2 here, but decline to find a violation of that rule on this
record. At the end of the day, our disposition of this charge does not affect the disposition
of this case.
MLRPC 8.4(c) – Conduct Involving Dishonesty, Fraud, Deceit or Misrepresentation
MLRPC 8.4(c) provides in pertinent part:
It is professional misconduct for a lawyer to: ...
(c) engage in conduct involving dishonesty, fraud,
deceit or misrepresentation;
An attorney can violate MLRPC 8.4(c) in personal affairs unrelated to representation
of a client. See Attorney Grievance v. Jordan, 386 Md. 583, 594, 873 A.2d 1161 (2005)
(attorney violated MLRPC 8.4(c) when she intentionally submitted false documents to her
homeowner's insurance company for the purpose of obtaining monetary benefits to which
she was not entitled); Attorney Grievance Comm’n v. Sweitzer, 395 Md. 586, 599–600, 911
21
A.2d 440 (2006) (attorney violated MLRPC 8.4(c) after misrepresenting ownership of a
vehicle to the Motor Vehicle Administration in order to avoid paying a sales tax). In
addition, making knowing false statements to a tribunal violates MLRPC 8.4(c). Attorney
Grievance Comm’n v. Barton, 442 Md. 91, 141-42, 110 A.3d 668 (2012). Knowing
misrepresentations made to third parties, especially made in order to obtain a more favorable
outcome, also violate MLRPC 8.4(c). See Attorney Grievance Comm’n v. Agbaje, 438 Md.
695, 731–33, 93 A.3d 262 (2014) (attorney violated MLRPC 8.4(c) by inducing a business
partner to enter a partnership agreement that benefitted the attorney).
The hearing judge found that, in an attempt to obtain a more favorable loan
modification, Ms. Trye knowingly misrepresented to GMAC and OCWEN that the Idylwood
Road property was her primary residence, was owner-occupied, was not a rental, or was
vacant at the time of the application. As noted above, the hearing judge also found that Ms.
Trye intentionally made false statements to the circuit court and opposing counsel during her
divorce proceeding regarding her compliance with discovery requests. Ms. Trye
misrepresented the basis of her knowledge regarding the military status of a former client on
a court document. Finally, Ms. Trye used deceitful tactics to induce Mr. Trye to sign the
settlement agreement and consent order granting her primary physical custody of their child.
Her multiple misrepresentations to the court and to third parties violated MLRPC 8.4(c).
MLRPC 8.4(d) – Conduct Prejudicial to the Administration of Justice
MLRPC 8.4 (d) provides:
It is professional misconduct for a lawyer to: ...
22
(d) engage in conduct that is prejudicial to the
administration of justice;
“Conduct prejudicial to the administration of justice is that which reflects negatively
on the legal profession and sets a bad example for the public at large.” Attorney Grievance
Comm’n v. Thomas, 440 Md. 523, 555-56, 103 A.3d 629 (2014) (citation and internal
quotation marks omitted). An attorney engages in conduct that is prejudicial to the
administration of justice when an attorney makes repeated misrepresentations to a court or
others. Mixter, 441 Md. at 526; Agbaje, 438 Md. at 717 (attorney abused his position as
attorney by concealing from client the true risk of a financial scheme and acted to prevent
client from learning the truth, in violation MLRPC 8.4(d)). There is no need to reiterate the
details of Ms. Trye’s misrepresentations; they constituted a violation of MLRPC 8.4(d).
The hearing judge also concluded that Ms. Trye’s failure to file tax returns for 2009,
2010, 2012, and 2013 also violated MLRPC 8.4(d) – a conclusion that merits additional
discussion. Ms. Trye admits the failure to file, but asserts that it was not “willful.” As noted
above, the Commission did not allege a willful failure to file in its petition and the hearing
judge made no finding on willfulness.10
10
We note that there is evidence in the record that could support a finding of
willfulness, at least for some of the tax years in question. “Willfulness” has been defined as
“the voluntary, intentional violation of a known legal duty not requiring a deceitful or
fraudulent motive.” Attorney Grievance Comm’n v. Thompson, 376 Md. 500, 514-15 & n.6,
830 A.2d 474 (2003) (citations and internal quotation marks omitted). Ms. Trye testified at
a hearing in her divorce case that she was aware of the financial and legal consequences of
not filing tax returns. In this proceeding, she has attributed her failure to file to the obstacle
the divorce case presented to coordinating with her former husband and the “current”
dissolution of her law firm. But Ms. Trye’s divorce action, which was filed in 2012, and the
current dissolution of her law firm would not appear, on their face, to explain her failure to
23
A willful failure to file tax returns is a crime and a violation of MLRPC 8.4(b). See,
e.g., Attorney Grievance Comm’n v. Atkinson, 357 Md. 646, 650, 745 A.2d 1086 (2000). It
has also been held to violate MLRPC 8.4(d). Id. at 654-56; see also Attorney Grievance
Comm’n v. Hoang, 433 Md. 600, 610, 72 A.3d 548 (2013); Attorney Grievance Comm’n v.
Tayback, 378 Md. 578, 592, 837 A.2d 158 (2003) (noting that the willful failure to file tax
returns erodes confidence in the legal profession). Although a finding of willfulness is
necessary to support the conclusion that an attorney violated MLRPC 8.4(b), which concerns
misconduct that is a criminal act, there is no requirement that an attorney violate a criminal
law as a prerequisite to a determination that the attorney violated MLRPC 8.4(d).
Ms. Trye failed to file tax returns over an extended period of time. The reasons she
offers for that delinquency – her divorce and the dissolution of her law firm – appear to post-
date at least part of that period. She does not indicate that she took any actions to deal with
those issues, as simple as seeking an extension of the due date of a tax return. The failure
of a lawyer to comply with a legal obligation common to all citizens for an extended period
of time is conduct that reflects negatively on the legal profession. We conclude that Ms.
Trye’s failure to file tax returns also supports a determination that she violated MLRPC
8.4(d).
file tax returns for 2009 and 2010. In any event, we need not resolve the issue of willfulness,
as it does not affect our decision as to whether she violated MLRPC 8.4(d) or our disposition
of the sanction in this case.
24
III
Sanction
The primary objective in sanctioning attorney misconduct is to protect the general
public and the integrity of the bar rather than to punish the offending attorney. Attorney
Grievance Comm’n v. Kremer, 432 Md. 325, 337, 68 A.3d 862 (2013). When deciding upon
a sanction we consider the facts and circumstances of each individual case and consider any
aggravating or mitigating circumstances. Attorney Grievance Comm’n v. Zuckerman, 386
Md. 341, 375, 872 A.2d 693 (2005).
The Commission proposed disbarment as the appropriate sanction. At oral argument,
Ms. Trye’s counsel proposed a reprimand or a 30-day suspension.
Ms. Trye’s false statements in the circuit court, which were part of a pattern of
dishonesty and intentional misrepresentation, warrant disbarment. Ms. Trye made multiple
intentional misrepresentations, including misrepresenting the Idylwood Road property as her
primary residence on a loan modification application, misrepresenting her compliance with
discovery during a court hearing, and misrepresenting the basis for her knowledge of a
client’s military status. Most egregiously, Ms. Trye deceitfully attempted to alter the agreed
custody terms of a settlement agreement and consent order and conceal the alteration from
the opposing party for her own advantage.
Disbarment is ordinarily the appropriate sanction for intentional dishonest conduct.
Attorney Grievance Comm’n v. Pennington, 387 Md. 565, 597, 876 A.2d 642 (2005);
Attorney Grievance Comm’n v. Guida, 391 Md. 33, 56, 891 A.2d 1085 (2006). This Court
25
has consistently disbarred attorneys who were found to have engaged in a pattern of
dishonesty or misrepresentation. See Attorney Grievance Comm’n v. Fader, 431 Md. 395,
66 A.3d 18 (2013) (attorney disbarred after repeatedly making false statements and
submitting false evidence to the court); Attorney Grievance Comm’n v. Seltzer, 424 Md. 94,
117-18, 34 A.3d 498 (2011) (disbarring an attorney who made false statements, submitted
false documents, issued bad checks, and failed to appear at a disciplinary hearing); Attorney
Grievance Comm’n v. Guberman, 392 Md. 131, 896 A.2d 337 (2006) (attorney disbarred
after creating records to document fictitious appeal of case, including false file stamps
indicating that appellate court’s clerk had received notice of appeal).
Although the hearing judge did not make any specific findings related to mitigating
or aggravating factors, Ms. Trye’s counsel pointed to certain facts in argument at the hearing
that might be considered mitigating – i.e., that the violations occurred while Ms. Trye was
going through a divorce and custody dispute.11 In the exceptions filed on her behalf and at
oral argument before us her counsel contended that the stress of her divorce litigation was
mitigating factor – that her mental state was altered due to the custody battle and her worries
about eviction from her home as a result of foreclosure on the Whispering Court property.
While we sympathize with Ms. Trye’s situation, it does not justify deliberate false
representations to the court, or the alteration of the agreed-upon settlement documents. Nor
is it mitigation that precludes disbarment for dishonest conduct. See Attorney Grievance
11
We also note that the Commission has advised that Ms. Trye does not have a prior
disciplinary record – a mitigating factor. On the other hand, she is an experienced attorney
– an aggravating factor.
26
Comm’n v. Vanderlinde, 364 Md. 376, 413-14, 773 A.2d 463 (2001) (only a debilitating
mental or physical condition that is the “root cause” of misconduct and that disables the
attorney from conforming conduct to the law and MLRPC can mitigate intentionally
dishonest conduct). Accordingly, disbarment is appropriate in this case.
I T I S S O O RDERED; R ESPONDENT S HALL P AY
A LL C OSTS AS T AXED BY THE C LERK OF THIS
C OURT, INCLUDING C OSTS OF A LL
T RANSCRIPTS, P URSUANT TO M ARYLAND R ULE
16–761(B), FOR W HICH S UM J UDGMENT I S
E NTERED IN F AVOR OF THE A TTORNEY
G RIEVANCE C OMMISSION OF M ARYLAND
A GAINST S HAUNTESE C URRY T RYE.
27
Circuit Court for Baltimore City
Case No. 24-C-14-004854
Argued: 12 May 2015
IN THE COURT OF APPEALS
OF MARYLAND
AG No. 34
SEPTEMBER TERM, 2014
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
SHAUNTESE CURRY TRYE
Barbera, C.J.,
*Harrell, J.
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
Concurring Opinion by Harrell, J., joined by
Battaglia, J.
Filed: July 27, 2015
*Harrell, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being
recalled pursuant to the Constitution, Article IV,
Section 3A, he also participated in the decision
and adoption of this opinion.
Although I concur with the outcome reached and virtually all of the reasoning
contained in the Court’s opinion, I part company with the opinion’s refusal to find a
violation of the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 4.2
(Communication with Person Represented by Counsel) on the facts of this case. See Slip.
Op. at 18–21. That is not to say that the undeveloped hypothetical example relied on by
the Court’s opinion might not be a valid reason not to find a violation of MLRPC 4.2, i.e.,
a blanket prohibition on represented parties from speaking directly and in good faith to
each other could be an obstacle to settlement; however, that is not the present case.
Rather, this case demonstrates, in the underlying family law litigation, a party who is a
lawyer (Respondent) talking directly to her lay person spouse (where both parties were
represented by counsel at the time in question and the spouse’s counsel had told
Respondent earlier, when she was representing herself, to cease speaking directly to his
client) in circumstances where she was attempting to pull a “fast one” by attempting to
induce her spouse and the parties’ counsel to execute a settlement agreement that she
altered surreptitiously. This presents an all-too-real and volatile example of where a
MLRPC 4.2 violation should be sustained, with due deference to the Majority opinion’s
hypothecation on a higher moral plane.
I would sustain the hearing judge’s conclusion that MLRPC 4.2 was violated,
based on the facts found in the present case.
Judge Battaglia has authorized me to state that she joins this opinion.