Attorney Grievance Commission v. Kimmel

*690Dissenting Opinion by BATTAGLIA, Judge, which ELDRIDGE, J., joins.

I respectfully dissent.

I agree with the conclusions that Silverman and Kimmel, Respondents herein, violated MRPC 5.1 (“Responsibilities of Partners, Managers, and Supervisory Lawyers”) as well as 1.4 (“Communication”) and that indefinite suspension is the proper sanction. What I disagree with is permitting the Respondents to apply for reinstatement in only 90 days, because of what the majority characterizes as “mitigating factors.” Respondents’ conduct demonstrably was more egregious than that of other lawyers upon whom we have imposed greater sanctions, and, moreover, the aggravating factors in the present case mandate a more substantial sanction.

This Court has addressed very few 5.1 violations and in each of the cases in which a lawyer was sanctioned for supervisory dereliction, the breadth of the systemic failure constituting the Rule violation was exponentially less than in the present case. In Attorney Grievance v. Hines, 366 Md. 277, 295, 783 A.2d 656, 666 (2001), we concluded that “indefinite suspension from the practice of law, with the right to apply for readmission six months from the date of his suspension” was the appropriate sanction for a violation of the Rule governing conflicts of interest as well as Rule 5.1, when an associate at Hines’ office represented Hines’ wife in a suit to recover money the wife loaned to a corporation of which Hines was a partial owner; one matter was implicated. A flawed system of litigation management in Attorney Grievance Comm’n v. Ficker, 349 Md. 13, 32, 44-45, 706 A.2d 1045, 1054, 1060 (1998), along with a prior reprimand, yielded an “indefinite suspension from the practice of law, with the right to reapply for admission after 120 days” subject to specific monetary and supervisory requirements;1 the most serious of Ficker’s violations arose out *691of his practice of “assigning too many cases to too few lawyers, mostly at the last minute.” Significantly, when Ficker was again sanctioned for careless management in Attorney Grievance v. Ficker, 399 Md. 445, 447, 455-56, 924 A.2d 1105, 1106, 1111 (2007), the sanction imposed was “indefinite suspension from the practice of law, with the right to reapply for admission no earlier than one year form the effective date of the suspension.”

In the case in which we meted out the same sanction as the majority does here, Attorney Grievance v. Mooney, 359 Md. 56, 95, 753 A.2d 17, 37-38 (2000), we considered an instance where an associate was not assigned a case until the day before trial and, thus, appeared at trial unprepared, reflective of a systemic failure to provide case files in a timely manner and to ensure that the associate was aware of her responsibilities. Mooney’s supervisory failure, however, was not on the same level as the systemic neglect of supervisory duties in the present case, in which forty-seven cases were dismissed with prejudice and a massive meltdown in an active litigation practice ensued. The results of Kimmel and Silverman’s lapses in judgment were much harsher than in any case reviewed.

The hearing judge in the present case clearly flagged the distinction between the harm attributed to Kimmel and Silver-man’s conduct and that sanctioned in other cases, when she wrote: “the harm caused by the lapses of practice within the firm is perhaps more egregious than any of the other cases cited. Forty-seven cases were dismissed based upon the failures of an associate under the supervision of Kimmel and Silverman.” The most noteworthy of these lapses is that Kimmel and Silverman never set foot in the Maryland office to determine whether the practice met ethical standards until Katz quit, even though their name was rooted on the door. They also demonstrated considerable lack of judgment and *692care when they hired a lawyer with absolutely no experience in contested litigation or “lemon law,” did not provide even a day’s worth of apprenticeship in the Maryland office, failed to more closely monitor Katz and failed to tailor the practice to Maryland where, as the hearing court wrote, “[t]he inability to file all cases in one jurisdiction, the aggressive approach to some of the discovery litigation, venue and expert challenges, and the lack of early arbitration all differed” from the standard practice in other states where the firm practiced, leading to an increased workload for Katz.

It is also significant that Kimmel and Silverman dismissed Katz’s “consistent pattern of requests for on site assistance.” In fact, the hearing judge’s findings demonstrate that the firm culture was one where requests for supervisory instruction and other assistance were either responded to harshly or demeaned. In response to a plea for assistance in late November of 2004, one of the members of the firm emailed Katz, with copies sent to both Kimmel and Silverman, stating “no excuses, don’t call, no need to talk, just get on it and only call me with good positive news of settlements, or demands your [sic] going to make.” The hearing judge also found that in December of 2004 another exchange occurred between Katz and the Office Manager after another Katz inquiry, with the following result: “Katz inquired of the Office Manager whether there was any news about hiring a paralegal for Maryland. In response, she was reminded of the need to file fifteen complaints per week.”

The majority, however, relies only on perceived mitigating factors to support the decision to permit Respondents to reapply for admission after only 90 days. Without any factual findings in support, the majority posits that, “Respondents understand where they erred and are unlikely to repeat history,” although a review of Kimmel and Silverman’s website, http://www.lemonlaw.com (last visited July 29, 2008), reflects that they have only two “managing attorneys” for offices in eight states as well as the District of Columbia. Two attorneys supervising what is occurring in a high-volume practice over nine jurisdictions, including Maryland, does not *693reflect understanding of the need for supervision and increased care.

Additionally, the majority’s discussion of the Respondents’ recovery efforts as “intense, immediate, and largely effective” is a mischaracterization of the hearing court’s findings. Far from efforts that were “intense, immediate, and largely effective,” in the one effort documented, Kimmel and Silverman failed for six months after Katz resigned to respond to Charles Carter, a client of the firm whose lawsuit was dismissed for lack of prosecution:

Carter also sent letters to K & S’s home office on August 23, September 10, September 28[,] December 31, 2005 and February 6, 2006 seeking a status update and Scheduling Order. Carter also sent e-mails to the home office. The first responsive communication Carter received was a letter dated February 7, 2006, advising him of the dismissal of his case.

Although Carter was eventually compensated, it is clear, as the hearing judge found, that “Silverman did not become involved until Carter hired counsel after learning of the dismissal.” The fate of the forty-six other clients whose cases were dismissed with prejudice due to Kimmel and Silverman’s inadequate supervision and who, unlike Carter, presumably did not obtain outside counsel after their dismissals, has not been adequately addressed.

The aggravating factors clearly outweigh any perceived, albeit not real, mitigating factors. Forty-seven dismissals resulted from Respondent’s lack of supervision. Kimmel and Silverman also have had substantial experience in the practice of law, because both were admitted to the Pennsylvania bar in 1989 so that they clearly understand the complexities of a litigation practice, but did not supervise a novice. Finally, Respondents established their foothold in “lemon law” cases nearly seventeen years ago, certainly sufficient time to develop the level of supervision adequate enough “to ensure that the firm has in effect measures giving reasonable assurance *694that all lawyers in the firm conform to the Maryland Lawyers’ Rules of Professional Conduct.” Rule 5.1(a).

Katz was disbarred by consent for her actions. Justice and our concern for the public welfare dictate that the lawyers who ensured her downfall should receive at least an indefinite suspension for a period much longer than 90 days.

Accordingly, I dissent.

Judge ELDRIDGE authorizes me to state that he joins in this dissenting opinion.

. As a condition to Ficker’s reapplication, Ficker was ordered by this Court to "pay all costs assessed by this Court” and obtain "a monitor, acceptable to Bar Counsel, who will agree, at Ficker's expense, to oversee Ficker’s practice of law for a period of at least two years and to *691provide to Bar Counsel monthly reports for one year and quarterly reports for the second year.” Attorney Grievance Comm’n v. Ficker, 349 Md. 13, 44-45, 706 A.2d 1045, 1060 (1998).