HARRELL, J.
In this reciprocal attorney discipline case, the Attorney Grievance Commission of Maryland ("AGC"), through Bar Counsel, asks this Court to suspend indefinitely Robert Weston Mance, III, with the right to apply for reinstatement in Maryland only after he is reinstated to the Bar of the District of Columbia. The District of Columbia Court of Appeals, in a per curiam opinion and order of 26 January 2012 triggering the present proceeding, suspended Mance for six months and conditioned his reinstatement in the District of Columbia ("D.C.") on: (1) proof of fitness, as determined according to the D.C. Rules; and (2) restitution to his clients or the D.C. client security trust fund. By per curiam order of 3 December 2012, we determined that corresponding discipline in Maryland should be that Mance be suspended indefinitely in Maryland (effective upon the date of our order), with the right to apply for reinstatement no sooner than when he is readmitted unconditionally in the District of Columbia. This opinion explains our reasons for the 3 December 2012 order.
On or about 29 August 2011, the Office of Bar Counsel for the District of Columbia and Mance (who was represented by counsel) executed and filed jointly with the D.C. Court of Appeals's Board on Professional Responsibility a Petition and Affidavit of Negotiated Discipline. The filing embraced four docketed cases brought by D.C. Bar Counsel against Mance. A synopsis of the Petition's representations as to each case is as follows:
Garrett hired Mance in August 2003 to represent him in a governmental employment termination action. Garrett paid Mance $1,500 in cash and an additional $3,000 by cashier's check, for which Mance issued no receipt. There was no written
After Garrett filed a complaint against him with D.C. Bar Counsel, Mance and Garrett entered into an agreement on 25 August 2009 wherein Mance agreed to refund $4,500 to Garrett (the full amount of the initial fee paid) and to pay him (within 15 months) an additional $15,000 in settlement of their dispute over Mance's handling of the representation. Prior to Garrett's execution of the agreement, Mance failed to advise Garrett to obtain the advice of independent counsel or to supply sufficient information to enable Garrett to give informed consent to the settlement. Mance, after making two payments totaling $900 in 2009, failed to make further payments on the settlement agreement.
Bar Counsel went forward with its investigation of Garrett's complaint, determining ultimately that Mance's conduct violated the following D.C. Rules of Professional Conduct: 1.1(a) (failed to provide competent representation); 1.1(b) (failed to serve a client with skill and care); 1.3(a) (failed to represent a client zealously and diligently within the bounds permitted by law); 1.5(b) (failed to provide a client a writing stating the rate or basis of the fee); and 1.8 (entered into a business transaction with a client that did not come within any exception to the Rule).
Riley retained Mance in March/April 2009 to represent him in an action to recover damages for injuries to his improved real property in D.C. Mance filed suit in the D.C. Superior Court on 4 May 2006. During 2008, Mance failed to respond to a defendant's request for production of documents, despite being ordered to do so by the court and despite the requested documents having been delivered to him by Riley. The defendant moved for sanctions. Mance did not respond. The court granted, as a sanction for Mance's failure to supply discovery, that Riley, at trial, could not testify, present evidence as to damages, or offer any exhibits. Mance did not move to vacate or reconsider the sanction order. An additional defendant moved for summary judgment, which Mance did not oppose. The court granted summary judgment to that defendant, dismissed the claims against the remaining defendants, and vacated the trial date.
Although Mance filed an appeal, he neglected to advise Riley of the potential conflict of interest between Riley's interests and Mance's earlier failure to act on Riley's behalf in the trial court. Mance did not advise Riley to seek the advice of independent counsel.
In his appellate brief, Mance maintained that he did produce the requested documents to the opposing counsel in the trial court, albeit four days after the trial court's deadline. Unfortunately for him, Mance had represented previously, in a copy of a supposed "Emergency Motion to Vacate [The Trial Court's] July 8, 2008 Order [Imposing Sanctions]" (supplied by him to D.C. Bar Counsel during its investigation of Riley's complaint) that the date he produced allegedly the requested documents to opposing counsel was a different
The above notwithstanding, the D.C. Court of Appeals vacated the trial court's sanctions order and the grant of summary judgment. The case was remanded otherwise for further fact finding. Compliant with the appellate directive, the trial court vacated its sanctions order.
Bar Counsel determined that Mance's conduct violated the following D.C. Rules of Professional Conduct: 1.1(a); 1.1(b); 1.3(c); and 1.7(b) (represented his client at a time when his professional judgment on behalf of the client would be or reasonably may have been affected by his responsibilities to or interests in his own financial, business, property, or personal interests).
Between 7 July 2007 and 12 May 2009, Mance represented Randolph in a criminal matter in the D.C. Superior Court. Randolph was convicted. Mance noted an appeal, but new counsel, Craig Moore, Esquire, was appointed thereafter to handle the appeal. Moore wrote twice to Mance asking for a copy of his "case materials" regarding his representation of Randolph in the trial court. Mance did not respond to either request. Moore wrote to the D.C. Bar in October 2009, asking for its help in getting Mance to respond. The Bar turned the matter over to the D.C. Bar Counsel, who wrote to Mance on 4 December 2009 requesting his position why he had not responded to Moore's request, pointing out in the letter Mance's obligation under the D.C. Rules of Professional Conduct to release client files upon termination of representation. Mance failed to respond promptly to Bar Counsel. Consequently, Bar Counsel opened a complaint file on the matter.
Mance responded on 11 February 2010 to Bar Counsel's 4 December 2009 letter. He stated that he would turn over to Randolph his file on Randolph's case; however, he did not attempt to do so until April 2010. When he did, he sent the materials directly to Randolph, who was incarcerated in a federal correctional facility. Because Mance had not made inquiry before mailing the file as to any limitations on Randolph receiving mail where he was incarcerated, the papers were returned to Mance on 7 April 2010 because he had not taken the necessary preliminary steps to send mail to Randolph. Mance filled-out the necessary form required by the institution and finally sent successfully the file to Randolph on 17 May 2010.
D.C. Bar Counsel determined that Mance's conduct violated the following D.C. Rule of Professional Conduct: 1.16(d) (failed to take timely steps upon termination of representation, to the extent practicable, to protect a client's interest, such as surrendering papers and property to which the client is entitled).
This matter came to D.C. Bar Counsel's attention through review of an as-yet unidentified decision of the D.C. Court of Appeals. Characterizing the case only as concerning "conduct similar to that in [the Garrett complaint], that is, failure to represent with skill and care [1.1(b) ] and failure to represent zealously [1.3(a) ]," Bar Counsel reserved "the right to present the facts and circumstances of these unadjudicated
In the Petition of Negotiated Discipline, Bar Counsel and Mance agreed that the proper sanction should be a six-month suspension, with a fitness requirement for readmission. Of note as to how this position was reached, the Petition stated:
As noted earlier, Mance, in his Affidavit of Negotiated Settlement submitted with the
In its 26 October 2011 Report and Recommendation, an ad hoc hearing committee of the D.C. Court of Appeals Board on Professional Responsibility explained its recommended approval of the negotiated discipline of Mance. The committee had the benefit of not only a hearing it held on the matters, but an in camera review of Bar Counsel's files and records.
As mentioned at the outset of this opinion, the D.C. Court of Appeals, in a 26 January 2012 per curiam opinion and order, adopted the recommendations of D.C. Bar Counsel's and Mance's joint Petition for Negotiated Discipline, as endorsed by the Board on Professional Responsibility. Noteworthy from that per curiam opinion and order, the court said:
The Attorney Grievance Commission of Maryland, through its Bar Counsel, initiated the present reciprocal disciplinary proceeding by filing on 22 June 2012 a Petition for Disciplinary or Remedial Action, based on the D.C. proceedings. A show cause order was issued by this Court the same day to the parties inquiring if they had any reason, based on the grounds set forth in Maryland Rule 16-773(e),
We scheduled this matter for an oral hearing on 30 November 2012. Prior to that hearing, Bar Counsel supplemented, on 20 November 2012, its earlier response to our show cause order, stating in the supplement that it obtained additional information from D.C. Bar Counsel regarding the "implementation" of Mance's suspension in D.C. We were advised essentially that, due to Mance's failure to file, until 30 July 2012, an affidavit required by the D.C. Bar Rules, the commencement of his six-month suspension (which would have commenced ordinarily on 25 February 2012) did not commence until 30 July 2012. Bar Counsel reminded us that, even after the six-month suspension in D.C. runs its course, Mance must make restitution and otherwise satisfy fitness requirements before gaining readmission in the District of Columbia. Bar Counsel directed our attention also to Mance's blemished prior disciplinary record in the District of Columbia (noted as well in the Petition filed in D.C., supra at 7). Bar Counsel renewed its recommendation that indefinite suspension, with the right to apply for reinstatement in Maryland only upon readmission in the District of Columbia, is the corresponding discipline that we should impose.
We held a hearing on 30 November 2012, at which Mance was represented by counsel. Deputy Bar Counsel argued, in addition to the authorities cited by it previously, Atty. Grievance Commission v. Patterson, 421 Md. 708, 28 A.3d 1196 (2011), as an additional case relevant to our disposition of the sole question before us — what is the appropriate corresponding discipline in Maryland.
Having authored quite recently, for a unanimous Court, an opinion involving a similar question to that presented here, Attorney Grievance Commission v. Katz, 429 Md. 308, 55 A.3d 909 (2012), I see no need to reinvent the wheel as to the guiding principles of how we analyze what corresponding discipline is in a reciprocal attorney discipline matter. So:
Atty. Griev. Comm'n v. Katz, 429 Md. 308, 315-18, 55 A.3d 909, 915-19 (2012) (internal case citations and footnotes omitted).
In the present case, Bar Counsel concedes (and Respondent does not offer any argument or authority to the contrary) that it is "unable to cite any case that involves precisely the same combination of misconduct" as in this case. Yet, Bar Counsel argues for "substantially different discipline" in Maryland than was imposed in the District of Columbia, highlighting that the conceded facts of Mance's misconduct involved multiple acts of misconduct, across multiple client representations, of a nature that Maryland cases seem to treat as worthy of indefinite suspension, with or without conditions directed to when and on what terms the respondent may apply for reinstatement. See Atty. Griev. Comm'n v. Patterson, 421 Md. 708, 28 A.3d 1196 (2011) (indefinite suspension with right to apply for reinstatement in no sooner than 6 months for violations of Maryland Lawyers Rules of Professional Conduct ("MLRPC") 1.1, 1.3, 1.4(b), 1.5(a) and (b), 1.15(a) and (d), 1.16(d), 3.2, and 8.1(b), and of Maryland Rules 16-606.1 and 16-609(c)); Atty. Griev. Comm'n v. Brugh, 353 Md. 475, 727 A.2d 913 (1999) (indefinite suspension with right to reapply after 60 days); Atty. Griev. Comm'n v. David, 331 Md. 317, 628 A.2d 178 (1993) (indefinite
As made manifest in our Order of 3 December 2012 suspending indefinitely Mance from the practice of law in Maryland, and conditioning his ability to apply for reinstatement in Maryland upon his unconditional readmission in the District of Columbia, we agree with Bar Counsel's reasoning in the main. We explain now why we concluded thusly.
The D.C. Court of Appeals imposed a sanction of suspension for six months with reinstatement conditioned on proof of Mance's fitness to practice law and Mance's restitution to his clients or the D.C. client security trust fund. Maryland does not have in its attorney discipline regulatory scheme an express equivalent sanction option. An indefinite suspension, as described in Maryland Rule 16-721,
Thaxton, 415 Md. at 368, 1 A.3d at 486 (quoting Attorney Grievance Comm'n v. Weiss, 389 Md. 531, 548, 886 A.2d 606, 616 (2005)). We agree with Bar Counsel in Mance's case that "exceptional circumstances" exist under Rule 16-773(e) as a result of the fact that were the conduct to
In David, the attorney violated MLRPC Rules 1.1 (competence), 1.3 (diligence), 1.4(a) (failed to keep the client informed reasonably), 1.5(a)(1) through (8) (unreasonable fee), 1.15(b) (failed to notify client of settlement check), 1.16(d) (failed to turn over client's files to new counsel after termination of representation), 5.3(b) and (c)(1) and (2) (responsibilities regarding nonlawyer assistants), 8.1(a) and (b) (failure to provide truthful information to Bar Counsel), and 8.4(a), (c) and (d) (professional misconduct) in connection with his involvement in four separate cases. 331 Md. at 318-23, 628 A.2d at 179-81. The respondent (1) failed to pursue diligently all four cases; (2) did not supply his clients with requested information repeatedly; (3) failed to keep his clients informed adequately about the statuses of their respective cases; (4) did not issue a refund of a client's retainer fee after being discharged by the client; (5) did not notify a client he received a settlement check for the client; (6) misled a client about the status of the client's case; and (7) did not provide information about a case to new counsel, despite repeated requests for such information, after being discharged by the client. Id. Determining that "respondent's representation of [his] four clients was marked by serious neglect and inattention," we imposed a sanction of indefinite suspension, with a right to apply for reinstatement no sooner than six months. Id. at 324, 628 A.2d at 181. Any reinstatement would be conditioned on the respondent's practice being monitored for a period of at least two years. Id.
In Brugh, the attorney violated MLRPC Rules 1.1, 1.3, 1.4, 1.16, and 8.4(d) in connection with his handling of three separate cases on behalf of three different clients. 353 Md. at 478-79, 727 A.2d at 914-15. The respondent (1) failed to pursue diligently each case; (2)did not supply his clients with requested information repeatedly; (3) failed to keep his clients informed adequately about the statuses of their respective cases; and (4) did not issue his clients refunds for services he was paid to perform, but did not complete, after being discharged. Id. at 476-78, 727 A.2d at 914. Relying on David, we determined that respondent's neglect of the cases he had undertaken and his failure to keep his clients informed about their respective cases warranted imposition of a suspension, with reinstatement subject to conditions. Id. at 479, 727 A.2d at 914. Noting, however, that, unlike the attorney in David, the respondent in Brugh was cooperative fully with Bar Counsel and did not fail to remit to a client a settlement check belonging to the client, we granted Brugh the right to apply for reinstatement after sixty (60) days, instead of the six months imposed in David. Id.
In Patterson, the attorney violated MLRPC Rules 1.1, 1.3, 1.4, 1.5(a) and (b) (failure to communicate the rate of the fees and expenses to client), 1.15(a) and (d) (failure to render a full accounting of the client's property), 1.16(d), 3.2 (expediting litigation), 8.1(b), and Maryland Rules 16-606.1 (attorney trust account record keeping) and 16-609(c) (negative balance not permitted in an attorney trust account). The respondent (1) wrote a check out of his attorney trust account when there were insufficient funds in the account; (2) did not maintain records for his trust account; (3) did not pursue diligently his clients' cases; (4) failed to keep his clients informed about the statuses of their respective cases; (5) withdrew money paid to his trust account for services he had not yet rendered; and (6) failed to respond to the demands of Bar Counsel for information. We determined that respondent's numerous violations with respect to his handling
Mance's conduct in the instant case is consonant with that of the attorneys in David, Brugh, and Patterson. Mance (1) failed to provide adequate and diligent representation in three separate cases; (2) received money from a client without issuing a receipt; (3) failed to advise properly two clients to seek independent counsel after a potential conflict arose between Mance's interests and the clients' interests; (4) failed to supply information repeatedly requested by new counsel, after being discharged by a client; and (5) failed to respond to Bar Counsel's request for information. Like the attorneys in David, Brugh, and Patterson, Mance neglected seriously multiple cases, which resulted in prejudice to his clients. In addition, Mance failed to supply new counsel with case records after being discharged by a client, like the attorney in David, and failed to cooperate fully with Bar Counsel, like the attorney in Patterson. Furthermore, unlike the attorneys in David, Brugh, and Patterson, Mance has a history of past discipline and failed to inform two clients about the potential conflict between his and their interests in two matters.
We conclude that Mance's numerous ethical violations concerning his representation of multiple clients, which would constitute violations of MLRPC Rules 1.1(a), 1.1(b), 1.3(a), 1.3(c) 1.5(b), 1.7(b), 1.8, and 1.16(d) had the conduct occurred in Maryland, are akin to the attorneys' actions in David, Brugh, and Patterson, thereby warranting an indefinite suspension in Maryland. Imposition of a condition on his right to apply for readmission in Maryland after unconditioned reinstatement to the Bar of the District of Columbia is self-evident and consistent with our action previously in similarly situated cases. See Thaxton, 415 Md. at 370, 1 A.3d at 487 (imposing an indefinite suspension with the right to apply for readmission after reinstatement to the Bar of the District of Columbia where the attorney had been suspended previously in the District of Columbia for a year, with six months stayed, followed by a probationary period). Moreover, the imposition by the D.C. Court of Appeals on Mance's readmission of proving fitness and making restitution are similar to conditions we would expect before Mance would be considered for reinstatement in Maryland following an indefinite suspension. See Md. Rules 16-760(g)(2) and 16-781(g) (criteria for reinstatement).
