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Opinions: Maryland Court of Appeals: 5/23/11

Professional Responsibility

Disbarment

BOTTOM LINE: Disbarment was the appropriate sanction for an attorney who assisted the children of an incompetent person in the execution and recording of forged and fraudulent documents.

CASE: Attorney Grievance Commission of Maryland v. Coppola, Misc. Docket AG No. 5, Sept. Term, 2010 (filed April 29, 2011) (Judges Harrell, BATTAGLIA, Greene, Adkins & Barbera) (Judges Murphy & Bell dissenting). RecordFax No. 11-0429-20, 43 pages.

FACTS: John Coppola was admitted to the Virginia Bar in 1989 and to the Maryland Bar in 1997. He lived and practiced law in Virginia. Since 1997, Coppola practiced in the area of estates and trusts, having represented approximately 1,000 clients.

In 2001, Coppola represented a Virginia couple, Jeanne and Richard Swink, in preparing a typical estate plan. At that time, Ms. Swink mentioned that her mother, Elizabeth West, was getting older and lacked an adequate estate plan. Ms. West did not contact Coppola at that time.

In June 2008, Ms. Swink again contacted Coppola about an estate plan for Ms. West, indicating that her mother was ill. Coppola recalls that he spoke by phone with Ms. West on this sole occasion concerning her estate plan. He learned that Ms. West had an existing Will, drafted in 1995, leaving her assets in equal shares to her four adult children. Coppola also learned that Ms. West had one significant probatable asset, a house, and that Ms. West wanted to leave it to her four children in equal shares, with a minimum of fees and expenses.

Coppola recommended to Ms. West an estate plan that would accomplish her intent. Ms. West did not formally ask Coppola to prepare any documents at that time. Ms. West, herself, did not follow up ever again with Coppola.

In August 2008, Ms. Swink informed Coppola that Ms. West was in a hospital and that Ms. West wanted to go forward with the estate plan they had previously discussed. Coppola had no direct conversation with Ms. West at this time.

Based on the phone call from Ms. Swink, Coppola prepared the 2008 Will, the Elizabeth L. West Trust Declaration, a Deed transferring the Prince George’s house to the Trust, an Assignment transferring personal property to the Trust, and a General Durable Power of Attorney. Coppola took copies of the documents to the hospital, where he found Ms. West’s children in Ms. West’s room. Coppola learned that Ms. West was semi-conscious and in no condition to review or execute the estate-planning documents.

Coppola explained the purpose of the documents, including the fact that the plan might save the estate approximately $10,000 in probate fees and expenses, primarily attorney’s fees, by placing the house into a trust.

Coppola had drafted the trust declaration to name Ms. Swink as the successor trustee, but the children requested that all four of them serve as the successor trustee, and Coppola agreed to make this change later, after signing of the documents.

After learning that Ms. West was not capable of executing the documents, Coppola was approached by Ms. West’s children regarding the possibility of Ms. Swink forging Ms. West’s signature on the documents. Coppola told the children that such a course would be improper and, if anyone of the children objected, the documents would not be honored. The children indicated, however, that they were in agreement.

Accordingly, Coppola agreed to have them sign the documents and that he would certify that they were signed by Ms. West. Ms. Swink then signed her mother’s name to all of the estate planning documents, with all children witnessing Ms. Swink’s execution of her mother’s name on the documents. Ms West died two days later.

Coppola returned to his office, changed the identity of the successor trustee in the Trust Declaration from Ms. Swink alone to all four children acting together and proceeded to notarize all of the falsely-executed documents. He also directed two of his employees to falsely attest that they witnessed Ms. West’s Will.

On Sept. 12, 2008, Ms. Swink filed the 2008 Will with the Register of Wills for Prince George’s County, and simultaneously petitioned for administration of a regular estate. She did not retain Coppola to represent her in the probate proceedings.

In January 2009, Coppola was notified that one of Ms. West’s children was contesting the sale of Ms. West’s house. Coppola was contacted by an attorney for Ms. Swink who she had hired to represent her in the Orphan’s Court after her brother began asserting his position. The attorney, who was a member of the Maryland Attorney Grievance Commission, filed grievances against Coppola with the disciplinary authorities in Maryland and Virginia.

Bar Counsel filed a petition for disciplinary or remedial action against Coppola, charging numerous violations of the Maryland Rules of Professional Conduct (MRPC). The hearing judge found that Coppola’s acts and omissions constituted violations of Rules 1.2(d) and 8.4(a), (b), (c), and (d). The hearing judge also found several mitigating factors.

The Court of Appeals disbarred Coppola.

LAW: Rule 1.2(d) provides part that “[a] lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent.”

Coppola argued that the evidence established that his client was Ms. West and no evidence suggested that he counseled Ms. West to engage in a crime or fraud, or that he assisted Ms. West in committing a crime or fraud.

Coppola only spoke to Ms. West one time in June 2008, but never charged her a fee, never prepared any documents, and never confirmed her testamentary or estate planning wishes in any way that objectively proved her estate planning intent. In August 2008, Coppola only talked to Ms. Swink, his former client, who asked that he prepare the estate planning documents for her hospitalized mother.

In the hospital room, it was clear to Coppola that Ms. West was mentally unable to execute the estate planning documents or confirm that the documents expressed her current intent. At best, he knew that the documents reflected whatever Ms. West had told Coppola in the conversation of June 2008. But, in August 2008, there was no way to determine whether the documents really did meet with her approval, because she never reviewed any of the details of those documents. At a minimum, however, Coppola thought that he was acting on behalf of Ms. West when he created the documents before going to the hospital. Accordingly, there was an attorney-client relationship between Coppola and Ms. West.

In the hospital, Coppola explained to the children the benefits that would be derived from the estate planning documents that he had prepared. He advised them that, if they all agreed, then the documents could be executed. He permitted the documents to be executed in all their presence. Coppola then took the documents and, on behalf of the four children, made changes to reflect the agreement of the four children. He brought copies of the documents back to the four children the next day. He then proceeded to take actions to carry out the plan he created with the four children. In testimony, Coppola identified not only Ms. Swink as his client, but all of those in Ms. West’s hospital room. Therefore, Coppola also had an attorney-client relationship with the four children of Ms. West. See Attorney Grievance v. Brooke, 374 Md. 155 (Md.2003).

Coppola argued that, even if he had an attorney-client relationship, he did not assist in a criminal or fraudulent act.

The undisputed evidence established that Ms. Swink filed the 2008 Will and opened the probate proceedings without Mr. Coppola’s knowledge or advice. Mr. Coppola did not enter an appearance in the probate proceedings.

Under CL §8-606, making false entries in public records is a misdemeanor. A “public record” is defined so that it would include public land records. CL §8-606(a)(2). The prohibition states that the conduct is to “willfully make a false entry in a public record.” CL §8-606(b).

“Willful participation means voluntary and intentional participation in the criminal act.” McMillan v. State, 181 Md.App. 298, 335 (2008). See also Ayala v. State, 174 Md.App. 647 (2007).

Coppola falsely certified that the deed was signed by Ms. West and notarized her signature that he knew to be false. Then, he filed the deed in the Land Records of Prince George’s County. These actions were voluntary and intentional participation in the filing of the false deed. Coppola took an act in furtherance of the statutory violation by sending his clerk and straightening out the administrative problem that arose in filing the deed.

Thus, there was clear and convincing evidence that Coppola willfully made a false entry in the public record by filing the deed in violation of CL §8-606. Accordingly, the hearing judge correctly concluded that Coppola violated Rule 1.2(d).

Rule 8.4 states: “It is professional misconduct for a lawyer to: (a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another; (b) commit a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct that is prejudicial to the administration of justice.” The parties conceded that Rules 8.4(a) and (c) were violated.

As to whether Coppola violated Rule 8.4(b), Coppola violated CL §8-606. Therefore, it necessarily followed that there was a violation of Rule 8.4(b).

As for Rule 8.4(d) “[o]nly conduct that is criminal or so egregious as to make the harm, or potential harm, flowing from it patent will be deemed prejudicial to the administration of justice.” Attorney Grievance v. Marcalus, 414 Md. 501, 522 (2010). But “conduct that impacts on the image or the perception of the courts or the legal profession … and that engenders disrespect for the courts and for the legal profession may be prejudicial to the administration of justice.” Id.

Coppola both committed a misdemeanor and acted in a way that damages the perception of the legal profession. Thus, there was clear and convincing evidence for a violation of Rule 8.4(d).

The hearing judge’s conclusions of law were supported by clear and convincing evidence. Accordingly, disbarment was the appropriate sanction.

COMMENTARY: In determining an appropriate sanction, the goal of attorney discipline is protection of the public, rather than punishment of the erring attorney. Attorney Grievance v. Goff, 399 Md. 1, 30 (2007). The Court must consider the nature of the ethical duties violated in light of any aggravating or mitigating circumstances. Attorney Grievance v. Bleecker, 414 Md. 147, 176 (2010).

With regard to aggravating factors, Standard 9.22 of the American Bar Association Standards for Imposing Lawyer Sanctions sets forth several examples. Bar Counsel excepted to the fact that the hearing judge did not make a finding as to two of those aggravators: (c) a pattern of misconduct; and (i) substantial experience in the practice of law.

Bar Counsel’s exceptions were sustained because Coppola’s series of acts did constitute a pattern of misconduct. Furthermore, Coppola had substantial experience in this area of the law, having practiced in the field since 1997.

In making the determination regarding the appropriate sanction, mitigating factors are also considered. See Attorney Grievance v. Gordon, 413 Md. 46, 63 (2010).

The hearing judge determined that various mitigating factors were present in this case, including Coppola’s lack of a prior disciplinary record, the absence of a selfish motive in his conduct, that he cooperated with Bar Counsel, that he had remorse for his conduct and that he offered to file a deed of correction and repaid the legal fee charged to Ms. West’s estate.

With respect to the value of these mitigators, in the absence of compelling extenuating circumstances, “present and associated with the illegal or improper acts at the time committed,” disbarment is the appropriate sanction for violations of Rule 8.4(c), in which intentionally dishonest conduct is present. See Attorney Grievance v. Vanderlinde, 364 Md. 376, 418 (2001). No such “compelling extenuating circumstances” existed here. See id. at 413-14.

Accordingly, disbarment was the appropriate sanction.

DISSENT: According to the dissent, Coppola did not engage in a “pattern of misconduct” within the meaning of ABA Standard 9.22(c). Accordingly, under the circumstances, the appropriate sanction was an indefinite suspension.

PRACTICE TIPS: Due process considerations bar courts from finding violations of rules not charged in petition for disciplinary or remedial action. See Attorney Grievance Comm’n v. Sapero, 400 Md. 461, 486-87 (2007).

Professional Responsibility

Disbarment

BOTTOM LINE: Attorney’s acts of misappropriating client funds and settling a client’s claim without the client’s knowledge or consent warranted the gravest sanction of disbarment.

CASE: Attorney Grievance Commission of Maryland v. Stern, No. 15, Sept. Term, 2010 (filed May 3, 2011) (Judges Bell, Harrell, BATTAGLIA, Greene, Murphy, Adkins & Barbera). RecordFax No. 11-0503-20, 40 pages.

FACTS: On April 16, 2010, the Attorney Grievance Commission, acting pursuant to Maryland Rule 16-751(a), filed a Petition for Disciplinary or Remedial Action against attorney Gary Stern, charging numerous violations of the Maryland Rules of Professional Conduct, including violations of Rule 1.2(a) (Scope of Representation), Rule 1.15 (Safekeeping Property), Rule 1.16(d), Rule 8.1(b) (Bar Admission and Disciplinary Matters), Rules 8.4(b), (c), and (d) (Misconduct), and §10-306 of the Business Occupations and Professions Article.

In its Petition, the Commission charged that Stern had failed to pay physical therapy provider C.J.B. Therapy Centers approximately $45,000 in connection with his representation of 19 clients in personal injury cases, although the requisite assignments and authorizations had been given. The Petition also alleged that Stern had settled a personal injury claim on behalf of a client without the client’s knowledge or consent. The matter was referred to circuit court Judge Lawrence Fletcher-Hill for hearing. Stern was personally served with process on June 8, 2010. Stern filed an Answer to Petition on June 24, 2010.

When Judge Fletcher-Hill held a hearing Oct. 1, 2010, Stern neither attended nor participated, although he had been duly notified. After an evidentiary hearing, Judge Fletcher-Hill issued Findings of Fact and Conclusions of Law in which he found, by clear and convincing evidence, that Stern’s conduct constituted violations of Rules 1.2(a), 1.15(d), 8.4(c), and (d), 16-604, 16-609(c), and Section 10-306 of the Business Occupations and Professions Article. The initial findings concerned Stern’s background, as well as his arrangement with C.J.B., whereby C.J.B., after having provided therapy services, would not bill Stern’s clients directly with the expectation that Stern would pay C .J.B. from his clients’ case recoveries.

The circuit court found that Stern failed to remit payment to C.J.B. on behalf of 16 clients, although he had received settlement proceeds on behalf of those clients. The circuit court found that by failing to maintain funds due C.J.B. in his escrow account, Stern violated Rule 16-609(c) and Section 10-306 of the Business Occupations and Professions Article. The court further found that by depositing a settlement check received on another client’s behalf in his general business account, rather than in his attorney trust account, Stern violated Rule 16-604. The circuit court also found that Stern had violated Rule 1.2(a), Rule 1.15(d), Rules 8.4(c) and (d), Rule 16-609(c), and §10-306 of the Business Occupations and Professions Article, in connection with his settlement of a client’s claim without the client’s knowledge or consent.

The Commission advocated for Stern’s disbarment.

LAW: It has long been settled that an attorney’s misappropriation of funds entrusted to his care, be the amount small or large, is of great concern and represents the gravest form of professional misconduct. Attorney Grievance v. Palmer, 417 Md. 185 (2010).

The default sanction for ethical violations involving intentional misappropriation, or other intentional dishonest conduct, is disbarment. Attorney Grievance v. West, 411 Md. 3, 27-28 (2009). Maryland courts have also imposed disbarment when an attorney has settled a client’s claim without the client’s knowledge or consent, engaging in a pattern of deception and self-dealing. See, e.g., Attorney Grievance v. Fox, 417 Md. 504 (2010).

Here, Stern’s personal injury clients signed authorizations such that C.J.B. would be paid for physical therapy services from any recoveries in their cases. Rather than remit payment to C.J.B., however, Stern misappropriated those funds in connection with 16 of 19 clients. In addition, Stern settled a claim on behalf of another client without that client’s knowledge or consent. Stern’s conduct of misappropriating tens of thousands of dollars in client funds and settling a client’s claim without that client’s knowledge or consent warranted the gravest sanction, disbarment, for the protection of the public.

Accordingly, the Court of Appeals ordered Stern’s disbarment.