Attorney Grievance Commission v. Mance

Citations: 430 Md. 413; 61 A.3d 59; 2013 WL 656612; 2013 Md. LEXIS 76Docket: Misc. Docket AG No. 27

Court: Court of Appeals of Maryland; February 25, 2013; Maryland; State Supreme Court

SummaryOriginalCytator Case TreatmentBackward CitatorAnalysis

EnglishEspañolSimplified EnglishEspañol Fácil

In this reciprocal attorney discipline case, the Attorney Grievance Commission of Maryland (AGC) seeks the indefinite suspension of Robert Weston Mance, III, pending his reinstatement to the District of Columbia Bar. The District of Columbia Court of Appeals previously suspended Mance for six months on January 26, 2012, requiring proof of fitness and restitution to clients or the D.C. client security trust fund for his reinstatement. The Maryland Court issued a corresponding order on December 3, 2012, suspending Mance indefinitely with the condition that he may only apply for reinstatement in Maryland after being unconditionally readmitted in D.C.

The procedural backdrop includes a jointly filed Petition and Affidavit of Negotiated Discipline by Mance and D.C. Bar Counsel on August 29, 2011, which involved four docketed cases against Mance. One case involved complainant Leonard Garrett, who paid Mance $4,500 for representation in a wrongful termination matter. Mance failed to file necessary court documents, did not respond to a dismissal notice, and did not protect Garrett's interests. After Garrett filed a complaint, Mance agreed on August 25, 2009, to refund Garrett and pay an additional $15,000, but did not advise Garrett to seek independent counsel, nor did he ensure that Garrett was adequately informed regarding the settlement. Mance made only partial payments and ultimately failed to comply with the settlement agreement. His actions violated several D.C. Rules of Professional Conduct, including failures in competence, diligence, communication regarding fees, and proper client transaction protocols.

Wilmer Riley retained attorney Mance in March/April 2009 for a case involving property damage in D.C. Mance filed the suit on May 4, 2006, but failed to comply with a court order to produce documents requested by the defendant, neglecting to respond to the defendant's sanctions motion. The court sanctioned Mance by prohibiting Riley from testifying or presenting evidence at trial. Mance did not challenge this sanction or oppose a summary judgment motion from an additional defendant, leading to dismissal of Riley's claims and a vacated trial date. Although Mance appealed, he did not inform Riley of the conflict of interest arising from his prior inaction, nor did he advise Riley to seek independent counsel. Mance inaccurately claimed in his appellate brief that he had provided the requested documents on time, contradicting an earlier representation to Bar Counsel regarding the production date. He also failed to file an "Emergency Motion" in the trial court or provide evidence of document production. Ultimately, the D.C. Court of Appeals vacated the sanctions and summary judgment, remanding for further fact-finding, and the trial court subsequently vacated its sanctions order. Mance's conduct was found to violate several D.C. Rules of Professional Conduct, indicating a conflict between his personal interests and his duties to Riley.

Sedley Randolph retained Mance from July 7, 2007, to May 12, 2009, for a criminal matter, resulting in Randolph’s conviction. After Mance noted an appeal, new counsel, Craig Moore, was appointed but Mance did not respond to Moore’s requests for case materials. Following Moore's attempts to involve the D.C. Bar, Bar Counsel contacted Mance regarding his failure to release client files upon termination of representation, but Mance did not respond promptly.

Bar Counsel initiated a complaint against Mance after he failed to promptly transfer his file to client Randolph following the termination of representation. Mance's delayed response to Bar Counsel's inquiry resulted in mailing issues, leading to the return of documents from the federal correctional facility where Randolph was incarcerated. Mance eventually sent the file successfully on 17 May 2010. Bar Counsel found Mance in violation of D.C. Rule of Professional Conduct 1.16(d) for not taking timely steps to protect Randolph’s interests. This case was highlighted in connection to a decision from the D.C. Court of Appeals, which noted similarities to prior misconduct involving lack of skill and care in representation. Bar Counsel and Mance agreed to a six-month suspension with a fitness requirement for reinstatement, including restitution to clients and Continuing Legal Education. The range of sanctions for Mance’s neglect and conflicts of interest varied, but due to multiple affected clients, a suspension was deemed appropriate. Aggravating factors included client prejudice and Mance's history of disciplinary actions, which included a public censure in 2009 and a stayed suspension in 2005, both involving multiple violations of professional conduct rules. Mance acknowledged his misconduct, which was considered in mitigation.

The sanction against Respondent requires him to demonstrate fitness for practice before reinstatement, justified by clear evidence questioning his ongoing suitability to practice law. His prior ethical misconduct reveals a troubling pattern that endangers clients and the legal profession. The fitness requirement aims to ensure that Respondent will not return to practice until he has undertaken necessary remedial measures, including improved case management and compliance with ethical standards. Mance, through an Affidavit of Negotiated Settlement, accepted the facts and the proposed disciplinary outcome. The D.C. Court of Appeals, on January 26, 2012, endorsed this negotiated discipline, citing that the misconduct did not involve misappropriation or intentional wrongdoing. Consequently, Mance is suspended for six months, with reinstatement contingent upon proof of fitness and restitution to clients. Following this, the Attorney Grievance Commission of Maryland initiated reciprocal disciplinary proceedings, and Mance indicated no objection to corresponding discipline in Maryland. Bar Counsel requested an indefinite suspension as appropriate discipline in Maryland.

Bar Counsel argues for a significantly different disciplinary action due to multiple acts of misconduct by the Respondent in representing various clients. Although no exact precedent exists, Bar Counsel cites cases where indefinite suspension was deemed appropriate, such as Attorney Grievance Commission v. Brugh and Attorney Grievance Commission v. David. In Maryland, the equivalent sanction for Respondent's situation, given the fitness requirements for reinstatement in the District of Columbia, would also be an indefinite suspension. The D.C. Court's one-year suspension, with conditions, is similarly viewed as equivalent to indefinite suspension in Maryland. 

Prior to the scheduled oral hearing on November 30, 2012, Bar Counsel provided additional information regarding the implementation of Respondent's suspension in D.C., noting that his suspension only commenced after he filed a required affidavit. Bar Counsel also highlighted Respondent's prior disciplinary issues and reiterated its recommendation for an indefinite suspension in Maryland, contingent upon Respondent's readmission in D.C. 

During the hearing, Deputy Bar Counsel referenced Attorney Grievance Commission v. Patterson to support their position on the appropriate discipline. The analysis indicates that factual findings from sister jurisdictions are generally accepted as conclusive evidence of misconduct in reciprocal discipline cases, although additional evidence may be introduced to argue for lesser discipline.

The Court possesses discretion to impose disciplinary measures that align with findings from sister jurisdictions or to choose a more severe sanction based on "exceptional circumstances" under Rule 16-773(e). Identical reciprocal discipline is prohibited if clear evidence shows that such an imposition would lead to "grave injustice" or if the attorney’s misconduct warrants a different penalty in Maryland. The Court must independently assess the appropriateness of sanctions from other jurisdictions, considering Maryland's disciplinary precedents. The key issue is determining the expected sanction in Maryland for similar misconduct, which requires a review of analogous Maryland cases to ensure consistent outcomes for similar violations. Bar Counsel acknowledges the lack of a case with the same misconduct combination as the current one but argues for a significantly harsher sanction in Maryland than that imposed in D.C. The misconduct involved multiple violations across various client representations, which in Maryland typically leads to indefinite suspension. Past cases are cited to illustrate the precedent for such penalties. Furthermore, Bar Counsel suggests that a fitness requirement for readmission in D.C. parallels an indefinite suspension in Maryland. Ultimately, the Court views the D.C. sanction of a one-year suspension with a probationary period as functionally equivalent to an indefinite suspension in Maryland.

Mance was indefinitely suspended from practicing law in Maryland, with his reinstatement contingent upon his unconditional readmission in the District of Columbia. The D.C. Court of Appeals had previously suspended him for six months, requiring proof of his fitness to practice and restitution to clients or the client security trust fund. Maryland lacks a direct equivalent to this sanction; however, an indefinite suspension under Maryland Rule 16-721 serves a similar purpose. In reciprocal discipline cases, sanctions are determined by examining the imposed sanctions in both jurisdictions and considering the unique facts of each case, aiming for consistency in penalties for similar misconduct.

In Mance's case, exceptional circumstances justified the indefinite suspension, as such a sanction would have been imposed had the misconduct occurred in Maryland. Specific violations included failure to diligently pursue cases, inadequate communication with clients, not issuing refunds for uncompleted services, and misleading clients regarding their case statuses. Similar findings in other cases, such as those involving attorneys David and Brugh, reinforced the decision to impose indefinite suspension due to serious neglect and failure to adhere to professional conduct standards. Both cases highlighted patterns of neglect and communication failures that warranted disciplinary action.

Brugh was granted the right to apply for reinstatement in 60 days due to full cooperation with Bar Counsel and proper handling of client funds, contrasting with David, which imposed a six-month wait. In Patterson, the attorney faced multiple violations of MLRPC rules, including failure to communicate fees, lack of trust account records, and neglect of client cases, resulting in an indefinite suspension with a six-month reinstatement eligibility. Mance's conduct mirrored the shortcomings of attorneys in David, Brugh, and Patterson, including inadequate representation in multiple cases, failure to issue receipts, neglect of client communication, and non-cooperation with Bar Counsel. Mance also has a history of discipline and did not inform clients of conflicts of interest, leading to similar ethical violations under MLRPC rules. Consequently, Mance is subject to an indefinite suspension in Maryland, with conditions for readmission after reinstatement to the D.C. Bar, consistent with past cases requiring proof of fitness and restitution before reinstatement.

Subsection (e) of Maryland Rule 16-773 outlines exceptions to reciprocal discipline, stating that such discipline is not warranted if Bar Counsel or the attorney can prove by clear and convincing evidence that: 1) due process was violated due to inadequate notice or hearing opportunities; 2) the evidence of misconduct is so flawed that the court cannot accept it; 3) enforcing reciprocal discipline would lead to severe injustice; 4) the conduct in question does not constitute misconduct in Maryland or warrants a different disciplinary response; or 5) the reasons for placing the attorney on inactive status have ceased. Furthermore, a District of Columbia disciplinary order stipulates that restitution to clients or the client security trust fund is a requirement for future reinstatement considerations regarding fitness.

Maryland Rule 16-721 specifies potential sanctions for professional misconduct, including: 1) disbarment; 2) suspension; 3) reprimand (by the Court of Appeals or, with consent, by the Commission); 4) conditional diversion per a Conditional Diversion Agreement; and 5) termination of proceedings with a caution. For incapacity, remedies include: 1) inactive status with further court orders; or 2) conditional diversion as per a Conditional Diversion Agreement. Disciplinary actions may also include specified conditions under various rules.