Attorney Grievance Commission v. Barneys

805 A.2d 1040

370 Md. 566

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. Bradford Jay BARNEYS.

Misc. AG No. 2, Sept. Term, 2001.

Court of Appeals of Maryland.

August 28, 2002.

Melvin Hirshman, Bar Counsel, Raymond A. Hein, Assistant Bar Counsel for Attorney Grievance Commission of Maryland, for petitioner.

Bradford Jay Barneys, Washington, DC, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

HARRELL, Judge.

The Attorney Grievance Commission of Maryland, Petitioner, acting through Bar Counsel and at the direction of the Review Board, see Maryland Rule 16-709,¹ filed a Petition for Disciplinary Action against Bradford Jay Barneys, Respondent, charging him with misconduct, as defined by Rule 16-701(k),² in connection with his alleged unauthorized practice of law in Maryland. Specifically, the petition alleged that Respondent violated the following Maryland Rules of Professional Conduct ("MRPC"), as adopted by Maryland Rule 16-812: 5.5(a) (Unauthorized practice of law);³ 7.5(a), (b), and (d) (Firm names and letterheads);⁴ 4.1 (Truthfulness in statements to others);⁵ 8.1(a) (Bar admission and disciplinary matters);⁶ and 8.4(b), (c), and (d) (Misconduct),⁷ as well as Maryland Code (1989, 2000 Repl.Vol.), Business Occupations and Professions Article, §§ 10-601⁸ and 10-602⁹.

We referred the case to the Honorable Michael P. Whalen of the Circuit Court for Prince George's County to conduct a hearing and to make findings of fact and draw conclusions of law. See Rule 16-711(a).¹⁰ Following a one day hearing on 13 July 2001, the hearing judge made findings of fact from which he concluded that Respondent committed each of the charged violations. Petitioner filed no exceptions to the findings of fact and conclusions of law. It recommends disbarment as the sanction to be imposed. Respondent, while not disputing that he engaged in the unauthorized practice of law, took one exception to the fact finding and recommended as a sanction that he be barred from applying for admission to the Maryland Bar for two years.¹¹

I.

From the evidentiary record below, the hearing judge, in a memorandum dated 5 September 2001, found that Respondent, a member of the Bars of New York, Connecticut, and the District of Columbia, held himself out as a Maryland attorney beginning in August of 1996, when he opened an office at 7505 New Hampshire Avenue, Suite 301, Langley Park, Maryland. Without noting any jurisdictional limitation on the practice, Respondent used the name "Law Offices of Bradford J. Barneys, P.C." on his letterhead and business cards. The hearing court also found as a fact that, without being admitted to the Maryland Bar, Respondent engaged in the practice of law in Maryland during 1997 and 1998. The hearing court further determined that, despite the known pendency of Respondent's Maryland bar admission application (see supra note 11), he nonetheless entered his appearance as counsel and otherwise represented clients in at least five cases in the District Court of Maryland, sitting in Prince George's County, and the Circuit Court for Prince George's County. In none of these cases had Respondent been either admitted to the Maryland Bar or admitted specially by the court.

The hearing judge further found that, of special note, Respondent engaged in the unauthorized practice of law in the case of State of Maryland v. Santiago Sanchez, CT980986X.¹² There, Respondent entered his appearance and filed other papers. He also contacted Gates Bail Bonds to arrange for Mr. Sanchez's one hundred fifty thousand dollars bond. Specifically, Respondent proposed that Deborah Gates, on behalf of Gates Bail Bonds, "accept an assignment of Mr. Sanchez's worker's compensation settlement proceeds, promising future payment in the amount of Fifteen Thousand Dollars," because the settlement agreement already existed and the funds would be available within thirty days. When Ms. Gates agreed to the assignment, Respondent gave her a document printed on his letterhead and captioned, "Assignment of Settlement Proceeds," which was signed by Respondent and purportedly by Mr. Sanchez. In that document, Respondent committed "to observe all terms of [the assignment agreement] and ... to withhold such funds from any settlement, judgment or verdict as may be necessary to adequately protect Gates Bail Bonds."

Furthermore, notwithstanding Respondent's agreement to withhold funds from the proceeds of Mr. Sanchez's worker's compensation case, Judge Whalen found that Martin Gerel, Esquire, of the law firm of Ashcraft & Gerel, not Respondent, represented Mr. Sanchez in that case. The hearing judge also determined that, although Respondent did not state affirmatively to Ms. Gates that he represented Mr. Sanchez in the worker's compensation case, Respondent lead her to believe that he did. In any event, Mr. Gerel, never having been informed by Respondent of the assignment, did not contact Ms. Gates before disbursing to Mr. Sanchez his share of the worker's compensation proceeds. Mr. Sanchez neither contacted Ms. Gates upon his release from jail nor appeared for trial. As a result, Gates Bail Bonds was not paid its fee and the bond posted by Gates Bail Bonds was forfeited.

Investigating Ms. Gates' complaint against Respondent, one of Petitioner's investigators, Mr. Peregoy, visited the building in which Respondent's office was located on 19 November 1998, finding a lobby sign describing Barneys as an "attorney at law" and "a law office sign in Respondent's name outside his suite." In response to Petitioner's subsequent letter apprising him of the Gates' complaint and threatening to seek an injunction unless he closed his Langley Park Office, Respondent agreed in a reply letter of 12 December to close his practice on New Hampshire Avenue, including removing the sign outside his suite door. The removal of the suite sign was confirmed by the investigator during a second visit to the building on 28 December 1998. Respondent later removed his business cards from open view and availability, although the lobby sign had not been removed, as of 22 January 1999, the date of the investigator's third visit to Respondent's Maryland office.

As indicated, on these findings, the hearing judge concluded that Respondent committed each of the rule violations charged. With respect to the MRPC 4.1 violation, Judge Whalen's determination depended on crediting Ms. Gates' belief that Respondent represented Mr. Sanchez in the worker's compensation case and, in particular, on whether she was justified in so believing. Concluding that Respondent "held out to Ms. Gates of Gates Bail Bonds, that he represented Mr. Sanchez in the worker's compensation case," the hearing judge reasoned that "[R]espondent's conversations and actions led Ms. Gates to believe that he in fact represented Mr. Sanchez on his worker's compensation case. Her belief that Respondent represented Mr. Sanchez and could disburse the settlement proceeds, led her to post bond on behalf of Mr. Sanchez."

The MPRC 8.1(a) violation was premised on three factual findings: that Respondent made a false statement on his Petition for Admission to the Maryland Bar—representing that he practiced only in the District of Columbia, when he actually had an office in Maryland and was engaging in the unauthorized practice of law; that Respondent told Petitioner's investigator that he had only one Maryland client; and that Respondent entered his appearance, without special permission and while not a Maryland lawyer, in the cases of clients other than Mr. Sanchez, and otherwise represented those clients.¹³ As to the MRPC 8.4(b), (c), and (d) violations, the hearing judge stated the basis for his conclusion that Respondent also committed those violations, as follows:

Respondent was less than truthful with Ms. Gates and led her to believe that he had the ability to disburse the settlement proceeds. Moreover, Respondent was deceitful and dishonest to the judges of the District and Circuit Courts of Prince George's County by entering his appearance on behalf of clients when he knew that he was not authorized to practice law in the state of Maryland.

....

Although Petitioner did not allege with specificity what conduct Respondent engaged in to violate this subsection of 8.4[(d)], the Court finds that the overall conduct of Respondent as detailed in the Findings of Fact shows that Respondent's conduct was prejudicial to the administration of justice.

The hearing judge further noted in his conclusions of law that Respondent did not dispute "that he violated [MRPC] 5.5(a)" and [MRPC] 7.5[(a), (b), and (d)], and "admitted his violations of §§ 10-601 and 10-602 of the Business Occupations and Professions Article of the Maryland Code."

Petitioner took no exceptions to the findings of fact or conclusions of law. The recommendation for sanction filed by Petitioner seeks Respondent's disbarment.¹⁴ In support of that recommendation, Petitioner reminds us of our decision in Attorney Grievance Comm'n v. Harper and Kemp, 356 Md. 53, 70, 737 A.2d 557, 566 (1999), where we stated that "unadmitted attorneys must be deterred from attempting to practice law in violation of the statutory prohibition against unauthorized practice." Petitioner asserts that there is "no reasonable basis" on which Respondent "could have thought that his conduct was lawful." Petitioner also cites the various instances of misrepresentation in which the hearing judge found Respondent engaged. In summary, citing our decision in Attorney Grievance Comm'n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001), Petitioner argues:

The Respondent has displayed a total absence of respect for the law by his conduct in this matter. In addition to the unauthorized practice of law, he repeatedly engaged in other conduct involving dishonesty, fraud, deceit and misrepresentation. For such conduct, the appropriate sanction is disbarment.

Respondent took...