Attorney Grievance Commission v. Buehler

Attorney Grievance Commission of Maryland v. David Peter Buehler, Miscellaneous
Docket AG No. 12, September Term, 2014.
ATTORNEY DISCIPLINARY PROCEEDINGS – RECIPROCAL DISCIPLINE –
DISBARMENT: Disbarment is the appropriate sanction in a reciprocal discipline action
involving an attorney who was suspended from the practice of law for six months in
Virginia for making repeated misrepresentations to the court, failing to appear at scheduled
hearings, and bringing a baseless proceeding, who then failed to notify Bar Counsel of
discipline imposed against him in another jurisdiction. Such conduct violated MLRPC
1.3(a), 3.1, 3.3(a)(1), 3.4(c), 4.4, 8.4(c) and (d), and Maryland Rule 16-773(a).
Argued: December 5, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 12
September Term, 2014
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
DAVID PETER BUEHLER
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Opinion by Adkins, J.
Filed: January 26, 2015
In this reciprocal attorney discipline action, the Attorney Grievance Commission of
Maryland (“AGC”), acting through Bar Counsel, asks us to disbar or suspend indefinitely
David Peter Buehler. On February 21, 2014, the Virginia State Bar Disciplinary Board
(“Board”) ordered that Buehler be suspended for six months.
After a determination by a Subcommittee of the Second District of the Virginia State
Bar, the matter came before a panel of the Board, where Buehler represented himself. The
Virginia State Bar presented evidence, and Buehler stipulated to the facts below.
THE BOARD’S FINDINGS OF FACT AND CONCLUSIONS OF LAW
As an attorney licensed to practice in Maryland and Virginia, Buehler represented
Jill Sozio in matters related to her business, Jill’s Deli, Bakery & Grill. In June 2011, SEI
Realty, L.L.C. (“SEI”) filed an unlawful detainer action (the “Unlawful Detainer Case”)
against Sozio for unpaid rent of $1,257.54 and possession of the premises related to Sozio’s
lease of space in a Norfolk, Virginia, shopping center for the operation of her business.
The following month, Buehler filed two actions in the Norfolk Circuit Court on behalf of
Sozio against the former directors, officers, and owners of both Hampton Roads
Enterprises, Inc.—the owners of the premises at the time Sozio had executed the lease—
and Suburban Asset Management Corp.—the agent and management company for the
shopping center (collectively with SEI, the “Shopping Center”). In the first action (the
“Injunction Case”), Sozio requested “injunctive relief in the form of an order allowing her
access to the [p]remises to retrieve her personal property.” In the other action (the
“Damages Case”), Sozio sought $1,550,000 for breach of lease, wrongful eviction,
conversion, tortious interference, and lost profits.
The Injunction Case
On July 19, 2011, the Norfolk Circuit Court entered an Agreed Order in the
Injunction Case, granting Sozio access to the property to retrieve her personal property and
ordering her to surrender possession by July 31. In August, the Shopping Center filed a
motion requesting that: (1) Sozio show cause why she should not be held in contempt for
failing to comply with the terms of the Agreed Order; (2) the Shopping Center be allowed
to proceed with the Unlawful Detainer Case; (3) the injunction be dismissed; and (4) the
Shopping Center receive attorneys’ fees and costs. Shane L. Smith, counsel for the
Shopping Center, noticed a hearing1 on the motion for September 1, 2011, but Buehler
failed to appear. As a result, the Circuit Court entered an order granting the motion.
Four weeks later, Buehler filed a response to the Order to Show Cause, requesting
that the September 1 order be vacated and representing that he did not receive the Order
until September 27, “apparently due to the postal carrier’s inability to access his mailbox.”
But he failed to disclose that the Shopping Center had sent the Order by both mail and
email. After the Circuit Court entered an order awarding the Shopping Center $2,135 in
attorneys’ fees, Sozio moved that the show cause order be lifted and the request for
attorneys’ fees be denied. In an October 26 letter to the presiding judge and court clerk,
Buehler stated that he received a copy of the July 19 Agreed Order in September, and that
although he had provided Smith with a “signed sketch order” dismissing the injunction
1
To “notice a hearing” is to prepare and send a pleading to both the court and
opposing counsel reflecting the motion, date, and time. Usually, this is done after counsel
have conferred to agree on a date approved by the court. See Norfolk Circuit Court Local
Rule 2(A)(3)(a).
2
case, the sketch order was never submitted for entry. Smith refuted this assertion, and
when asked to do so, Buehler failed to provide proof that he had sent the sketch order.
After Buehler failed to notice a hearing for Sozio’s motion requesting that the show cause
order be lifted and the fees dismissed, Smith noticed the pleading for hearing on January
31, 2012. When Buehler did not appear at the hearing, the court denied Sozio’s requested
relief.
The Damages Case
The Shopping Center filed multiple motions in response to Sozio’s suit for damages.
Although he had not requested the Shopping Center’s consent to extend the deadline for
responding to these motions, Buehler filed a motion for extension of time with the Circuit
Court, stating that he was “seeking to determine if counsel for [the Shopping Center] will
oppose this extension, but has not as of yet received a response.” In an effort to file an
endorsed scheduling order prior to the November 10 scheduling conference, Smith
attempted to determine Buehler’s availability for trial, but was unsuccessful. When
Buehler filed a Memorandum of Lis Pendens on behalf of Sozio, SEI filed a motion for
leave to intervene, to quash, and for sanctions. SEI contended that the Memorandum of
Lis Pendens was improperly filed because Sozio was not asserting an ownership interest
and because Sozio had not named the owners as defendants. Buehler did not file a written
response. Following a hearing on the matter, the court granted SEI’s motion to quash and
awarded attorneys’ fees.
After Smith prepared and sent to Buehler an order containing the rulings and a
scheduling order setting trial dates in June, Buehler returned a facsimile transmission of
3
both orders bearing his signature. Despite requests, Buehler failed to return orders bearing
an original signature, further delaying proceedings. In February 2012, Buehler filed a
motion for nonsuit and—one week later—a motion to withdraw as counsel.
The Unlawful Detainer Case
Following trial of SEI’s Unlawful Detainer Case in September 2011, the Norfolk
General District Court entered judgment in favor of SEI for both unpaid rent and possession
of the property. Sozio appealed, and when Buehler again failed to provide his availability
for trial, Smith filed a motion to set the trial date and enter a scheduling order.
Notwithstanding that Smith sent a Notice of Hearing via mail and email, Buehler did not
appear at the hearing on SEI’s motion. On December 12, 2011, Smith sent Buehler copies
of the orders, including the orders setting trial for February 2, 2012. In response, “[b]y
letters dated January 26, 2012, [Buehler] stated that he had just discovered the unlawful
detainer case was set for trial on February 2, 2012, was not aware a scheduling conference
had taken place, and had not received the scheduling order.” He filed a motion for
continuance on February 2, asserting the same. The court denied the motion and “granted
SEI’s motion to exclude Sozio from presenting any testimony or other evidence other than
for rebuttal or impeachment based on her non-compliance with the filing deadlines in the
scheduling order.” Following trial, the court entered judgment in favor of SEI. Shortly
thereafter, Buehler moved for leave to withdraw as counsel.
4
Virginia Sanction
The Board determined that Buehler violated Virginia State Bar Rules of
Professional Conduct (“VSBRPC”) 1.3(a)2, 3.13, 3.3(a)(1)4, 3.4(g)5, 4.46, and 8.4(c)7. It
2
VSBRPC 1.3(a) mirrors MLRPC 1.3(a) and provides:
A lawyer shall act with reasonable diligence and promptness
in representing a client.
3
VSBRPC 3.1 resembles MLRPC 3.1 and provides:
A lawyer shall not bring or defend a proceeding, or assert or
controvert an issue therein, unless there is a basis for doing so
that is not frivolous, which includes a good faith argument for
an extension, modification or reversal of existing law. A
lawyer for the defendant in a criminal proceeding, or the
respondent in a proceeding that could result in incarceration,
may nevertheless so defend the proceeding as to require that
every element of the case be established.
4
VSBRPC 3.3(a)(1) resembles MLRPC 3.3(a)(1) and provides:
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal.
5
VSBRPC 3.4(g) resembles MLRPC 3.4(c) and provides:
A lawyer shall not:
***
(g) Intentionally or habitually violate any established rule of
procedure or of evidence, where such conduct is disruptive of
the proceedings.
MLRPC 3.4(c) provides:
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[.]
6
VSBRPC 4.4 resembles MLRPC 4.4 and provides:
In representing a client, a lawyer shall not use means that have
no purpose other than to embarrass, delay, or burden a third
5
then imposed a six month suspension, accepting the joint recommendation for sanction
made by the Virginia State Bar and Buehler. Buehler neither appealed the sanction to the
Supreme Court of Virginia, nor notified Maryland Bar Counsel that he had been sanctioned
in Virginia.
MARYLAND DISCIPLINARY PROCEEDING
The Clerk of the Virginia Disciplinary System notified the AGC of Buehler’s
sanction. Bar Counsel subsequently filed a Petition for Disciplinary or Remedial Action
on May 22, 2014. In addition to the MLRPC analogs to the VSBRPC the Board found
Buehler to have violated—1.3(a), 3.1, 3.3(a)(1), 3.4(c), 4.4, and 8.4(c)—Bar Counsel
contended that Buehler’s conduct also violated MLRPC 8.4(d)8 and Maryland Rule 16-
773(a)9.
person, or use methods of obtaining evidence that violate the
legal rights of such a person.
7
VSBRPC 8.4(c) resembles MLRPC 8.4(c) and provides:
It is professional misconduct for a lawyer to:
***
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation[.]
8
MLRPC 8.4(d) provides:
It is professional misconduct for a lawyer to:
***
(d) engage in conduct that is prejudicial to the administration
of justice[.]
9
Maryland Rule 16-773(a) provides:
(a) Duty of Attorney. An attorney who in another
jurisdiction (1) is disbarred, suspended, or otherwise
disciplined, (2) resigns from the bar while disciplinary or
remedial action is threatened or pending in that jurisdiction, or
6
This Court issued a Show Cause Order as to why corresponding discipline should
not be imposed. In its response, Bar Counsel argued that corresponding discipline would
be inconsistent with Maryland precedent and urged the Court to impose either indefinite
suspension or disbarment, stating: “[Buehler’s] conduct involved several instances of
misrepresentations, by both omission and commission, to a Court in Virginia in addition to
other unethical conduct involving delay and obstruction of the proceedings.” Bar Counsel
also directed the Court’s attention to aggravating factors, citing a pattern of misconduct
and multiple offenses. Furthermore, Bar Counsel highlighted Buehler’s failure to notify
Bar Counsel of his Virginia sanction, additional misconduct the Board had not considered.
Buehler did not respond to the Petition for Disciplinary or Remedial Action or the
Show Cause Order and failed to appear at the December 5, 2014 hearing on the matter
before this Court.
DISCUSSION
Standard of Review
We recently explained:
In reciprocal discipline cases, we generally treat the findings
of fact and conclusions of law of the sister jurisdiction as
conclusive evidence of the attorney’s misconduct. Att’y
Grievance Comm’n v. Gordon, 413 Md. 46, 54–55, 991 A.2d
51, 56 (2010); see Md. Rule 16-773(g)[10]. We are not
(3) is placed on inactive status based on incapacity shall inform
Bar Counsel promptly of the discipline, resignation, or inactive
status.
10
Md. Rule 16-773(g) Conclusive effect of adjudication.
Except as provided in subsections (e)(1) and (e)(2) of this Rule,
a final adjudication in a disciplinary or remedial proceeding by
7
required, however, to impose the identical sanction as our sister
jurisdiction. See Att’y Grievance Comm’n v. Weiss, 389 Md.
531, 546, 886 A.2d 606, 615 (2005).
***
“[W]e are concerned with what sanction a lawyer in Maryland
could expect in response to similar conduct, were it to have
occurred in Maryland.” Gordon, 413 Md. at 56, 991 A.2d at
57. Therefore, “we are duty bound to look not only to the
sanction imposed by the other jurisdiction but to our own cases
as well. The sanction will depend on the unique facts and
circumstances of each case, but with a view toward consistent
dispositions for similar misconduct.” Id. (citation and internal
quotation marks omitted).
Att’y Grievance Comm’n v. Poverman, 440 Md. 588, 599, 103 A.3d 667, 673–74 (2014).
MLRPC Violations
As discussed supra, the Board concluded that Buehler violated VSBRPC 1.3(a), 3.1,
3.3(a)(1), 3.4(g), 4.4, and 8.4(c). These rules mirror or closely resemble MLRPC 1.3(a),
3.1, 3.3(a)(1), 3.4(c), 4.4, and 8.4(c). We conclude Buehler also violated MLRPC 8.4(d)
by repeatedly failing to attend hearings on behalf of Sozio, see Att’y Grievance Comm’n v.
Dominguez, 427 Md. 308, 325–26, 47 A.3d 975, 985 (2012), and Maryland Rule 16-773(a)
by failing to notify the AGC of his Virginia sanction, see Att’y Grievance Comm’n v.
Scroggs, 387 Md. 238, 254, 874 A.2d 985, 995 (2005). We must determine what sanction
another court, agency, or tribunal that an attorney has been
guilty of professional misconduct or is incapacitated is
conclusive evidence of that misconduct or incapacity in any
proceeding under this Chapter. The introduction of such
evidence does not preclude the Commission or Bar Counsel
from introducing additional evidence or preclude the attorney
from introducing evidence or otherwise showing cause why no
discipline or lesser discipline should be imposed.
8
an attorney “could expect in response to [these violations] were [they] to have occurred in
Maryland.” Gordon, 413 Md. at 56, 991 A.2d at 57. In making this determination, we
consider any aggravating or mitigating factors. See Att’y Grievance Comm’n v. Whitehead,
405 Md. 240, 261–64, 950 A.2d 798, 811–13 (2008).11
11
Aggravating factors include:
(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 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 (1992),
reprinted in Compendium of Professional Responsibility Rules and Standards (2014).
Mitigating factors include:
(a) absence of a prior disciplinary record;
(b) absence of a dishonest or selfish motive;
(c) personal or emotional problems;
(d) timely good faith efforts to make restitution or to rectify
consequences of misconduct;
(e) full and free disclosure to disciplinary board or
cooperative attitude toward proceedings;
(f) inexperience in the practice of law;
(g) character or reputation;
(h) physical disability;
(i) mental disability or chemical dependency including
alcoholism or drug abuse when:
9
Maryland Sanction
Bar Counsel contends that Buehler’s actions warrant disbarment because they
consist of a pattern of misconduct and multiple violations of the MLRPC. Specifically,
Bar Counsel charges Buehler with repeatedly making misrepresentations to Virginia courts
and the AGC and repeatedly failing to appear at court proceedings.
Buehler’s gravest transgressions are his repeated misrepresentations. “[C]andor by
a lawyer, in any capacity, is one of the most important character traits of a member of the
Bar. . . . When a lawyer lies to a tribunal, he or she violates a norm that warrants
disbarment.” Att’y Grievance Comm’n v. Fader, 431 Md. 395, 438, 66 A.3d 18, 43 (2013)
(alteration in original) (internal quotation marks and citation omitted). Furthermore,
“disbarment is the appropriate sanction when an attorney has engaged in ‘repeated material
misrepresentations that constitute a pattern of deceitful conduct, as opposed to an isolated
(1) there is medical evidence that the respondent
is affected by a chemical dependency or
mental disability;
(2) the chemical dependency or mental disability
caused the misconduct;
(3) the respondent’s recovery from the chemical
dependency or mental disability is
demonstrated by a meaningful and sustained
period of successful rehabilitation; and
(4) the recovery arrested the misconduct and
recurrence of that misconduct is unlikely;
(j) delay in disciplinary proceedings;
(k) imposition of other penalties or sanctions;
(l) remorse;
(m) remoteness of prior offenses.
American Bar Association, Standards for Imposing Lawyer Sanctions, § 9.32 (1992),
reprinted in Compendium of Professional Responsibility Rules and Standards (2014).
10
instance[.]’” Att’y Grievance Comm’n v. Steinberg, 395 Md. 337, 373, 910 A.2d 429, 450
(2006) (quoting Att’y Grievance Comm’n v. Lane, 367 Md. 633, 647, 790 A.2d 621, 629
(2002)).
Here, Buehler misled Virginia courts on multiple occasions, claiming that he had
not received notice of scheduled hearings when indeed he had. This sanctionable behavior
occurred at least three times. Furthermore, upon receiving a six month suspension from
the Virginia State Bar, Buehler committed a misrepresentation by omission, failing to
notify the AGC of his Virginia sanction.
It is also significant that Buehler repeatedly failed to appear at hearings and
frequently delayed the judicial process. “We have said in applying MLRPC 1.3 that this
Court has consistently regarded neglect and inattentiveness to a client’s interests to be [an
ethical violation] warranting the imposition of some disciplinary sanction.” Att’y
Grievance Comm’n v. Garrett, 427 Md. 209, 223, 46 A.3d 1169, 1177 (2012) (alteration
in original) (internal quotation marks and citations omitted). Buehler’s conduct was similar
to that in Garrett. There, this Court disbarred an attorney for “failing to appear for a
scheduled hearing and not communicating with the court, client, or opposing counsel
during the two weeks preceding the hearing.” Id. at 221, 46 A.3d at 1176. Buehler, on
more than one occasion, failed to attend hearings and conferences and later attempted to
undo that ethical lapse by claiming that he had no knowledge of their existence. This
pattern of misconduct when viewed in the context of Buehler’s other violations warrants
disbarment.
11
Accordingly, we conclude that disbarment is the appropriate sanction when an
attorney makes repeated misrepresentations to the court, fails to appear at scheduled
hearings, brings a baseless proceeding, and fails to notify Bar Counsel of discipline
imposed against him in another jurisdiction. For these reasons, we entered the December
10, 2014 per curiam order disbarring Respondent and awarding costs against him.
12