Wednesday, July 17, 2019

Court Mixes Sports Metaphors

A decision of the Maryland Court of Appeals imposes a 60-day suspension for misconduct in responding to the bar complaint.

The court majority rejected findings of client-related violations save for securing a release from the bar complaint but found false statements to Bar Counsel. 

The court opens with a reference to a court of another sort

The phrase “no harm, no foul” derives from the idea that, if a foul committed in a basketball game does not affect the outcome, the referee should not call the foul. It denotes harmless error in a sports context. The rules of professional conduct governing attorneys do not allow us to adopt that approach. Many of those rules are prophylactic in nature. We must call a foul when one is committed, although the severity of the harm – or a lack of harm – may affect the sanction.

The foul

there is no dispute that Mr. Singh made use of the release shortly after it was executed in an effort to truncate Bar Counsel’s investigation of Mr. A’s complaint. Critically, there is no dispute that Mr. Singh failed to advise Mr. A, then or later, in writing or orally, that it was advisable for him to seek independent legal counsel in connection with a release of liability.

Unproven

The hearing judge did not find clear and convincing evidence that Mr. Singh violated Rule 1.1 (competence), Rule 1.2 (scope of representation), or Rule 1.9 (duties to former clients). Although we are not precluded from reaching different conclusions from those of the hearing judge, Bar Counsel has not excepted to the hearing judge’s conclusions concerning these alleged violations and we will not further address them.

The release violated Rule 1.8(h).

But the attorney also made false representations in reponding to the complaint. 

Rule 8.1 - yes; Rule 8.4(d) - no.

The hearing judge concluded that Mr. Singh had violated both of these subsections of Rule 8.4 apparently on the ground that any violation of Rule 8.1(a) (false statement to Bar Counsel) also violates those provisions, without further elaboration. We agree with the general proposition that a violation of Rule 8.1(a) also violates Rule 8.4(c) as a knowingly false statement to Bar Counsel qualifies as at least conduct involving misrepresentation. We decline to make the same equation with Rule 8.4(d) in all cases.

For sanction we switch from basketball to football metaphors

Our rules do not prescribe specific sanctions for specific transgressions, unlike the rules of football – i.e., five yards for offsides, 15 yards for a personal foul, and so on. Judgment must be exercised.

Bar Counsel sought indefinite suspension

There is no question that any attempt to mislead Bar Counsel is a serious matter that warrants a sanction beyond a reprimand, regardless of whether the underlying violations caused any harm to clients. Mr. Singh’s testimony in the investigative deposition – and other attempts to distance himself from violations of the ethical rules – magnified the seriousness of this case. Nonetheless, the absence of client harm and certain other considerations lead us to locate this case at a different place than Lee and Brigerman on the continuum of sanctions for misconduct.

Despite the violations enumerated above, Mr. A benefitted from his attorney-client relationship with Mr. Singh in 2016. Mr. A not only had the results of Mr. Singh’s research concerning cyberstalking, but also apparently followed the course outlined by Mr. Singh to remove the conditions on his green card. He had the benefit of Mr. Singh’s review and edit of his statement concerning the abuse and Mr. Singh’s referral to the psychologist for an expedited report on the effects of that abuse. In the end, he paid Mr. Singh only a $150 consultation fee.

We also note the important nature of Mr. Singh’s practice. He serves clients of moderate means, like Mr. A, in Montgomery County in a practice largely devoted to immigration law. No Maryland county has more immigrants or a higher percentage of foreign born residents; nearly one-third of Montgomery County’s residents were born abroad. As noted earlier, immigrants, who may find themselves without counsel even when the stakes are highest, are a vulnerable class of client often at the margins of society.

If you listen to the oral argument, note that Bar Counsel pressed the fact that Respondent had an immigration practice and argued that the inherent vulnerability of immigration clients was an aggravating factor.

Interesting riposte to that contention. 

Judge Watts -joined by two colleagues - dissented.

I would either adopt Bar Counsel’s recommendation of an indefinite suspension or impose an indefinite suspension with the right to apply for reinstatement after sixty days. In sharp contrast to Bar Counsel’s recommendation, the Majority merely suspends Singh for sixty days. See Maj. Slip Op. at 39. I fear that a two-month suspension will not impress upon Singh and other lawyers the importance of not making false statements to Bar Counsel. Indeed, Singh’s misconduct is even more egregious than that of lawyers who lie to Bar Counsel in correspondence, such as letters or e-mails. Singh gave false testimony at a deposition, then gave false testimony at the hearing in this attorney discipline proceeding. A sixty-day suspension is not sufficient to protect the public and send the message that repeatedly lying under oath is not acceptable behavior for a member of the Bar of Maryland.

Oral argument video linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2019/07/the-headnote-from-a-decision-of-the-maryland-court-of-appeals-an-attorney-successfully-represented-an-immigrant-and-his-spou.html

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