determining that extenuating circumstances were present when mental condition and impairment arising from alcoholism and severe depression affected respondent's ability to function in his normal day-to-day activities and testimony from doctor indicating that attorney's "mental conditions were the root cause of his misconduct"
How later courts described this case
- determining that extenuating circumstances were present when mental condition and impairment arising from alcoholism and severe depression affected respondent's ability to function in his normal day-to-day activities and testimony from doctor indicating that attorney's "mental conditions were the root cause of his misconduct"
- finding compelling extenuating circumstances when an attorney’s severe major depression and alcoholism were the root cause of his misconduct and resulted in his utter inability to conform his conduct in accordance with the law and the MRPC
- affirming the hearing judge’s factual finding that an attorney’s debilitating mental and physical condition was the root cause of his misconduct and such mental and physical impairments constituted compelling extenuating circumstances; Court mitigated disbarment to an indefinite suspension therefor
- requiring, as a condition to his reinstatement to the bar, that the attorney provide a signed statement from a qualified health care professional, certifying that he is mentally and physically competent to practice law and is receiving treatment
Written by the judges who cited it.
The opinion
RAKER, Judge, dissenting, in which BATTAGLIA, Judge, joins.
There is no dispute in this case as to respondent’s misconduct. The hearing judge found that respondent engaged in fraud and perjury by knowingly submitting a false accounting, and by knowingly misrepresenting the value of estate funds in the estate bank account. Respondent also violated the Rules of Professional Conduct by lacking competency and diligence, by commingling and misappropriating funds, and through certain fee issues.
It is a serious transgression for an attorney to obtain a legal fee for handling an estate matter without prior approval of the Orphans’ Court. See Attorney Griev. Comm’n v. Owrutsky, 322 Md. 334, 344 , 587 A.2d 511, 516 (1991) (stating that an attorney has no right to estate funds, “either as a commission or as an attorney’s fee, unless and until an approval pursuant to § 7-601 or § 7-602 of the Estates and Trusts Article, Maryland Code (1974, 1990 Cum.Supp.) has been obtained *651 from the Orphans’ Court”). The attorney must first file in the Orphans’ Court a petition setting forth reasonable detail; the fee is subject to court approval and the court finding that the fee is “fair and reasonable” in the light of all of the circumstances. See Md.Code (1974, 2001 Repl. Vol., 2003 Cum. Supp.), § 7-602 of the Estates & Trusts Article. It is an even more serious violation of the Rules of Professional Conduct to misrepresent to a court and to file a false accounting. By filing a false accounting, respondent committed a fraud upon the court.
Bar Counsel maintains that the appropriate sanction in this case is disbarment. I agree. Respondent’s mitigating evidence is insufficient to justify a sanction less than disbarment.
There is also no dispute that respondent suffered from physical and mental disorders, and abused alcohol. The question, with respect to sanction, is to what extent his conditions caused or contributed to his misconduct. The majority’s conclusion that respondent suffered from a confused state of mind affecting his day to day practice of law and that he was not able to conform his conduct in accordance with the law is simply unsupported.
Respondent served as a panel attorney for the Office of the Public Defender and he regularly received checks from the Public Defender for his services. In fact, he earned over $50,000.00 from August, 2000 to February of 2003, and deposited eighty remittances into his account. He told Dr. Tellefsen that he performed competently as a public defender and that, to his knowledge, there were no post-conviction proceedings initiated against him. There was no evidence that Respondent failed to act appropriately as a panel public defender.
Respondent’s false accounting statement which he filed in the estate proceeding was the product of his own reasoning and rationalization — that he needed more time to figure out a way to handle the issue of the depleted account and the improper fee he had taken from the estate. Respondent testified that the accounting he filed in November, 2002, *652 contained false figures, that he knew it was false when he signed it, and that he filed the false administration account because he needed more time. Respondent testified as follows:
“I was not well-experienced in estate administration, and this estate had become more than a simple routine matter with the death of Ms. Howard and the way the money had been handled, and I was frankly at a loss as to exactly how to deal with it. I was constantly waffling back and forth as to whether I should sell the house or transfer it in kind. And then there was the issue of the missing money. At the time I just did not understand how I was going to be able to show what had happened to it. Though, in filing the fourth account I was able to work out a process for doing that. And that was basically why I talked to the Register of Wills Gary Miller, because I wanted his expertise to give me some guidance as to how to resolve the estate.”
I do not suggest that depression, alcohol abuse, and physical maladies did not cause or contribute to respondent’s incompetency or lack of diligence. But to say that his condition caused him to file the false estate accounting or to commingle funds or to take a fee before court authorization is to misstate or misread the record. Alcoholism or other health and mental problems may justify a sanction less than disbarment when those conditions are the “root causes,” of the misconduct, ie. are responsible for the misconduct. The record does not support respondent’s position that the root causes of the serious misconduct were his mental and physical conditions. The fact that respondent’s behavior and “the failure to perform his obligations, the procrastination, the neglect, [are] behaviors that are consistent with depression and alcoholism” is insufficient to establish that his condition was the root cause of all of his serious misconduct. It is simply hard to believe that respondent could not conform his conduct in accordance with the law and the Rules of Professional Conduct in only one area of the law, but that he was able to do so as a public defender in over eighty matters. Additionally, based on his own testimony, I believe he recognized that money was miss *653 ing from the estate and he intentionally filed the false accounting to buy additional time.
This Court has said over and over again that the purpose of attorney discipline and sanctions is to protect the public. See, e.g., Attorney Grievance v. Mininsohn, 380 Md. 536, 571 , 846 A.2d 353, 374 (2004). In Attorney Grievance v. Vanderlinde, 364 Md. 376, 413-14 , 773 A.2d 463, 470 (2001), we discussed the type of circumstances sufficient to mitigate against disbarment in cases involving misappropriation and fraud. We stated as follows:
“Accordingly, we reiterate once again the position we announced in Kenney.[ 1 ] Moreover, we expound upon it by holding that, in cases of intentional dishonesty, misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as ‘compelling extenuating circumstances,’ anything less than the most serious and utterly debilitating mental and physical health conditions, arising from any source that is the ‘root cause’ of the misconduct and that also result in an attorney’s utter inability to conform his or her conduct in accordance with the law and with the MRPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of ... the intentional misappropriation of funds.. .. ”
Disbarment is the appropriate sanction in this case. This is in line with the American Bar Association Standards for Imposing Lawyer Sanctions (1986). Standard 5.11 provides that:
“Disbarment is generally appropriate when:
(a) a lawyer engages in serious criminal conduct a necessary element of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an *654 attempt or conspiracy or solicitation of another to commit any of these offenses; or
(b) a lawyer engages in any other intentional conduct involving dishonesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the lawyer’s fitness to practice.”
Respondent engaged in fraud, dishonesty and deceit that seriously adversely reflects on his fitness to practice law.
I am not unsympathetic to respondent’s mental and physical condition. Nonetheless, the public needs protection. Dr. Tellefsen testified that respondent has suffered from depression his entire life; that his depression was intensified and complicated by his drinking which started fifteen or twenty years ago; and that his current condition today is precarious. Moreover, it appears that respondent is not receiving any psychotherapy. The conditions imposed by this Court as a predicate for reinstatement are unrealistic. How can the MSBA Lawyer Assistance Program certify that respondent is an honest member of the community? How can the program certify that respondent is responsible and stable? How is the Lawyer Assistance Program supposed to discharge its “monitoring” of respondent during his period of suspension? The Lawyer Assistance Program of the Maryland State Bar Association is one of the best programs in the country, but its resources are limited. This Court should not impose such an obligation of the program. If, and when, respondent is sufficiently recovered to practice law without jeopardizing the public, he can apply for reinstatement.
The burden is on respondent to demonstrate that a sanction less than disbarment is appropriate. He has failed to do so and should be disbarred.
Judge BATTAGLIA has authorized me to state that she joins in this dissenting opinion.
. Attorney Griev. Comm'n v. Kenney, 339 Md. 578 , 664 A.2d 854 (1995).