Monday, March 1, 2021

Outside The Gravitational Field

A very unusual decision issued today by the Maryland Court of Appeals sustained a number of challenges by the accused attorney - and rejected a number of other claims - but rejected Bar Counsel's call for disbarment in favor of a 120 day suspension.

The sustained misconduct involved lack of competence and diligence and a failure to communicate a settlement offer in a personal injury matter. The rejected charges found below involved dishonesty and false statements to Bar Counsel.

Disbarment or a lengthy suspension was not called for

Ultimately, we agree with Mr. Sperling that the totality of the circumstances do not place this case within the “gravitational field” of disbarment and indefinite suspension cases. 

But a dissent authored by Judge Booth and joined by two colleagues would reject the allegations altogether and dismiss

Respectfully, I dissent. Although the Majority sustains several of Mr. Sperling’s exceptions to the hearing judge’s findings of fact and conclusions of law, the Majority nonetheless concludes that Mr. Sperling violated Rules 1.1, 1.3, 1.4, and 8.4(a) and (d) and imposes sanction consisting of a 120-day suspension from the practice of law. I agree with the Majority’s well-reasoned analysis and conclusions concerning Mr. Sperling’s exceptions that the Court sustained. However, I would sustain all of Mr. Sperling’s exceptions based upon this record and the hearing judge’s findings of fact and conclusions of law, which in my estimation, fall short of establishing, by clear and convincing evidence, any violations of the Maryland Attorney’s Rules of Professional Conduct.

The dissent persuasively dissects the misconduct findings of the majority

Instead, the Majority is “troubled” by facts not found by the hearing judge that the Majority extrapolates from its review of the record, stating that “we are troubled by the clients’ testimony that they were not aware of the subsequent dismissal of their case due to the failure to serve Ms. LaPlante.” Id. at 38. Again, it is not this Court’s role to scour the record to attempt to supply “clear and convincing evidence” of a factual finding in order to uphold a rule violation where the underlying fact was not made by the hearing judge. Even if I were inclined to undertake this fact-finding role, clear and convincing evidence of such facts are not borne out by this record. First, Mr. Sperling testified that he informed Ms. Boyd and Mr. Bailey of the dismissal and discussed the meaning and significance with them. In response to questions by Bar Counsel concerning whether Mr. Sperling had told him about the dismissal, Mr. Bailey testified about his understanding that Mr. Sperling was attempting to “put it back into the Circuit Court”—suggesting this layperson’s understanding that the case had been dismissed.

The testimony of both Mr. Bailey and Ms. Boyd, and the evidence in the record, reflects that they had substantial communication with Mr. Sperling. However, their testimony also demonstrates that they often lacked a memory of what was discussed or could not remember accurately what was discussed. Both parties testified concerning the multiple phone calls and texts with Mr. Sperling. It is clear from the record (including the undisputed testimony of Mr. Sperling, Ms. Boyd, Mr. Bailey, as well as the text messages and phone records that were admitted into evidence) that Mr. Sperling had numerous communications with Mr. Bailey and Ms. Boyd concerning the proposed settlement of their  case, the preparation of a demand package, Mr. Sperling’s attempts to obtain the medical records, the $500 settlement offer, and the fact that suit had been filed. After Mr. Sperling advised them that he had been suspended from the practice of law, he gave them names of other lawyers to handle the case, and also advised them of the pending statute of limitations deadline more than six months after he officially concluded his representation.

The respondent noted that Bar Counsel had raised the Bailey /Boyd matter in an (unsuccessful) effort to prevent his reinstatement from the earlier suspension. 

The court rejected his claim of res judicata as to those allegations

As Mr. Sperling correctly stated in his petition for reinstatement, a pending Bar complaint is not an automatic bar to reinstatement under Maryland Rule 19-751.12 However, it does not follow that, when we grant reinstatement of an attorney as to whom there is a pending Bar complaint, we conclude that there is no merit to the allegations contained in the complaint or that no sanction will be warranted if it is determined after further investigation and proceedings that the attorney committed the alleged additional professional misconduct. A contrary conclusion might result in our putting virtually all petitions for reinstatement on hold pending the resolution of existing Bar complaints. Mr. Sperling has benefitted from our willingness to allow him to practice law while Bar Counsel’s investigation of the Boyd/Bailey complaints continued and while the allegations

The oral argument is linked here. (Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2021/03/a-very-unusual-decision-issued-today-by-the-maryland-court-of-appeals-sustained-a-number-of-challenges-by-the-accused-attorne.html

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