Friday, May 11, 2018

Another Bite

The Maryland Court of Appeals has indefinitely suspended an attorney for misconduct in the wake of an earlier suspension

This attorney discipline case involves an attorney who took on representation of a client but was then suspended from the practice of law due to an unrelated matter. While representing the client, the attorney failed to communicate to his client that he was suspended, made misrepresentations to the client about his suspension, continued to render legal assistance on behalf of the client, and made misrepresentations to Bar Counsel during the investigation.

The suspension came during the representation of a client in a personal injury case.

Hecht was admitted to the Bar of this Court on June 23, 1994. In late September 2009, Lynn Crummitt was injured in a motor vehicle accident in Frederick County, Maryland. In early 2010, Lynn Crummitt and her husband, Irving J. Crummitt (“Jay Crummitt”) (collectively, “the Crummitts”) retained Hecht to represent them in a motor tort action resulting from the accident on a contingency basis. Hecht filed a complaint on behalf of the Crummitts in the Circuit Court for Frederick County. Defendants’ attorney, Keith M. Bonner (“Bonner”), filed an answer to the complaint and subsequently sent discovery requests to Hecht on May 9, 2013.

The suspension was handed down a week later.

The attorney failed to properly notify the client of the suspension and tried to secure new counsel while stage-managing the matter

Contrary to his assertion, Hecht’s actions rose to the level of performing legal tasks rather than, as Hecht argues, informal, non-legal assistance. In certain instances, Hecht would sign the Crummitts’ signatures on documents he drafted and submit the legal documents to the circuit court or opposing party even though he was suspended. MLRPC 5.5 forbids an attorney from engaging in the practice of law “in a jurisdiction in violation of the regulation of the legal profession in that jurisdiction” and forbids a suspended attorney from “hold[ing] out to the public” that the attorney is authorized to practice law. By not affirmatively telling the Crummitts that he was suspended, Hecht held himself out to be an attorney authorized to practice law in Maryland. Hecht’s suspension combined with his admission that he drafted various discovery documents on the Crummitts’ behalf lead to the inescapable conclusion that Hecht participated in the unauthorized practice of law. MLRPC 4.1 states that a lawyer must not “make a false statement of material fact or law to a third person.” Hecht was not honest in his communications with the Crummitts, opposing counsel, or the circuit court and misrepresented the source of the Crummitts’ discovery responses to opposing counsel and the circuit court. Therefore, we agree with the hearing judge and conclude that this conduct violated MLRPC 4.1, 5.5(a), and 5.5(b).  For these reasons, we overrule Hecht’s exceptions.

Bar Counsel sought disbarment

The hearing court also recognized several mitigating factors. Hecht has repeatedly admitted that he made mistakes in the way he handled the Crummitts’ case. As the hearing judge noted, Hecht has “expressed remorse for the mistakes he made in this matter and did not profit from the Crummitts case,” instead paying the Crummitts $30,000 of his own money as restitution. Finally, the hearing judge found that Hecht “made numerous unsuccessful efforts to get new counsel to represent the Crummitts and had a reputation as a competent and truthful practitioner.”

Although we agree with Bar Counsel that Hecht’s conduct did involve “fraud, dishonesty, or deceit” and that conduct involving “fraud, dishonesty, or deceit” usually results in disbarment, we conclude there is sufficient mitigation to warrant deviating from disbarment in this case. Hecht, upon being suspended, turned away prospective clients and attempted to inform all of his current clients that he was suspended and could no longer represent them. When he discovered that his attempted suspension communication to the Crummitts had failed, he made the wrong decision, predicated on worry and a sense of loyalty for his wife’s friends, in continuing to act as their attorney while attempting to find alternative counsel for them. When the Crummitts’ lawsuit was dismissed, Hecht financially reimbursed them. Upon our independent review, we conclude that indefinite suspension is the proper sanction. For the reasons found above, we indefinitely suspend Hecht with the right to petition for reinstatement after twelve months from the date of this opinion.

A dissent from Judge Watts would disbar for intentionally dishonest conduct

In my view, given Hecht’s intentionally dishonest conduct and other numerous instances of misconduct, and that there are no compelling extenuating circumstances, the sanction of disbarment is warranted. I would conclude that the mitigating factors found by the hearing judge, which the majority opinion accepts—remorse, restitution, and reputation, see Maj. Slip Op. at 25—do not constitute compelling extenuating circumstances and are insufficient to mitigate Hecht’s misconduct such that a second indefinite suspension is appropriate. Obviously, the previous indefinite suspension imposed by consent against Hecht was insufficient to protect the public, and it is unclear why a second indefinite suspension would somehow now be sufficient given the multitude of MLRPC that Hecht violated while indefinitely suspended from the practice of law the first time. By imposing an indefinite suspension with the right to apply for reinstatement after twelve months, the Majority has given Hecht yet another bite at the apple with respect to harming the public and further eroding the public’s confidence in the legal profession. With this sanction, despite his intentional dishonest conduct, the Majority has guaranteed Hecht yet another date by which he has the right to apply for reinstatement to the practice of law in Maryland. In my view, the indefinite suspension imposed by the Majority is inadequate to protect the public under the circumstances of the case.

Judge Greene joined the dissent. (Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2018/05/the-maryland-court-of-appeals-has-indefinitely-suspended-an-attorney-this-attorney-discipline-case-involves-an-attorney-who.html

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