Attorney Grievance Commission v. Garcia

Dissenting Opinion by

GREENE, J.,

in which BELL, C.J., and MURPHY, J., join.

1 agree with the majority’s conclusion that Respondent violated Maryland Rule of Professional Conduct (MRPC) 8.4; however, I disagree that disbarment is the appropriate sanction. I would impose an indefinite suspension, with Respondent’s reinstatement to the Maryland Bar conditioned upon his reinstatement to the New York Bar. In this case, I would either defer to the New York Supreme Court, treat the case as a reciprocal discipline case, and impose the same sanction, or I would apply the rationale of Attorney Grievance v. Sweitzer, 395 Md. 586, 911 A.2d 440 (2006), the effect of which requires that we impose an indefinite suspension.

*530 Reciprocal Discipline

Respondent resides in Maryland and is a member of the Maryland Bar, but maintains an office in Virginia for a practice limited exclusively to matters before the United States Citizenship and Immigration Service (CIS). The conduct that is the basis for his violation of MRPC 8.4 occurred in Virginia and is directly related to Respondent’s practice as an immigration lawyer in that state. Respondent does not hold a Virginia license to practice law, and he is not required to do so in order to maintain an office in Virginia for the limited practice outlined in these proceedings. Va. State Bar Comm, on Unauthorized Practice of Law, Op. 55 (1988) (stating that it is not the unauthorized practice of law in Virginia to maintain an office in that state limited exclusively to the practice of immigration matters); Va. Sup.Ct. R. Pt. 6, Sec. I, UPR 9-102 and 9-103 (authorizing attorneys not licensed to practice law in Virginia to practice before federal administrative agencies in connection with immigration matters).

Because Respondent is licensed to practice law in New York and Maryland, he is subject to the disciplinary regulations governing the practice of law in both states. Respondent has been a member of the New York Bar since 1995 and a member of the Maryland Bar since June 25, 1997. New York acted first to initiate disciplinary proceedings. On June 12, 2008, the Appellate Division of the New York Supreme Court, the body that decides attorney disciplinary matters in that State, entered an interim Order of suspension, and on July 31, 2008, as a sanction for Respondent’s misconduct in this matter, the court suspended Respondent from the practice of law in that state for a period of one year, effective June 12, 2008. In re Jose E.M. Garcia, 53 A.D.3d 1032, 860 N.Y.S.2d 923 (2008). Under New York law, although immigration fraud is a federal felony, and the crime “has no New York felony analog, it is considered a ‘serious crime’ (Judiciary Law § 90[4][d]) [and] warrants an] interim suspension from the practice of law” pending a final disciplinary order. See In re Markovitch, 191 A.D.2d 116, 600 N.Y.S.2d 634, 635 (1993). Thus, New York was the original jurisdiction to consider this matter for pur*531poses of taking disciplinary action. See Attorney Grievance v. Parsons, 310 Md. 132, 142, 527 A.2d 325, 330 (1987) (noting that in cases of reciprocal discipline “we look not only to the sanction imposed by the other jurisdiction but to our own cases as well. The sanction will depend on the unique facts and circumstances of each case, but with a view toward consistent dispositions for similar misconduct.”)

Maryland Rule 16-773(b) provides that “[u'lpon receiving and verifying information from any source that in another jurisdiction an attorney has been disciplined . .., Bar Counsel may file a Petition for Disciplinary or Remedial Action in the Court of Appeals pursuant to Rule 16-751(a)(2).” A reciprocal discipline case arises when

“an attorney who in another jurisdiction (1) is disbarred, suspended, or otherwise disciplined, (2) resigns from the bar while disciplinary or remedial action is threatened or pending in that jurisdiction, or (3) is placed on inactive status based on incapacity,” Maryland Rule 16-773(a), and bar counsel has filed a Petition for Disciplinary or Remedial Action in the Court of Appeals, pursuant to Rule 16-751(a)(2). Maryland Rule 16-773(b).

Attorney Grievance v. Weiss, 389 Md. 531, 556-57, 886 A.2d 606, 621 (2005) (Bell, C.J., dissenting). Even Judge Cathell, writing for the majority in Weiss, 389 Md. at 555, 886 A.2d at 620, pointed out that “Rule 16-773 requires the application of reciprocal discipline unless there is clear and convincing evidence that such application will result in grave injustice or that the conduct warrants a different sanction in this State.”

In Weiss, this Court reaffirmed that “we usually do not deviate from the original jurisdiction’s sanction,” but “we will do so when the conduct involved is of such [a] nature that it would not be tolerated from any member of the Bar in this State if the conduct occurred here.” 389 Md. at 552, 886 A.2d at 618. Although Petitioner did not seek reciprocal discipline in this case, either by initiating or processing the case as such, the facts and circumstances involved conduct that warranted a sanction by the New York Supreme Court, and that court did *532impose a sanction. See Attorney Grievance v. Steinberg, 385 Md. 696, 704 n. 9, 870 A.2d 603, 608 n. 9 (2005) (noting that in imposing disciplinary sanctions it is our duty to look not only at the sanction imposed by the other jurisdiction, but to the particular facts and circumstances of each case “with a view toward consistent dispositions for similar misconduct” (quoting Attorney Grievance v. Ruffin, 369 Md. 238, 253-54, 798 A.2d 1139, 1148 (2002))). Thus, even though Petitioner did not seek a reciprocal sanction, given the circumstances, one of which is the action taken by the New York Supreme Court, it is appropriate to defer to the original jurisdiction that sanctioned Respondent because the New York Supreme Court’s “responsibilities, like ours, include oversight and regulation of the profession, [and it] was aware of the [facts and circumstances].” Steinberg, 385 Md. at 705, 870 A.2d at 608.

It should be noted that while Rule 16-773 and case law above applying that rule explain why we should defer to the New York Supreme Court in this case, deference, nonetheless, should not depend upon application of that rule. Rule 16-773 advances goals—comity and consistency—that remain applicable in any attorney discipline case where another state has issued a judgment on the same facts. See Attorney Grievance v. Whitehead, 390 Md. 663, 694-95, 890 A.2d 751, 770 (2006) (Bell, C.J., dissenting). Although this Court has rejected the notion that these goals bind us to the decisions of other courts, they are important goals nonetheless. See Whitehead, 390 Md. at 675, 890 A.2d at 758 (noting the importance of both goals). To further those goals, this Court should defer to another state’s prior judgment on the same facts in an attorney discipline case, even when the case was not initiated as a reciprocal discipline matter.1

*533 Proper Sanction

Regarding the proper sanction to be imposed in attorney disciplinary matters, we recently reiterated, in Attorney Grievance v. Wingerter, 400 Md. 214, 234, 929 A.2d 47, 59-60 (2007), the purpose and goal of attorney disciplinary proceedings:

This Court has made clear that the well settled purpose and goal of attorney discipline proceedings is to protect the public, not to punish the erring attorney. That purpose is achieved, the public is protected, when the sanctions are commensurate with the nature and gravity of the violations and the intent with which they were committed. While the circumstances of each case—the nature and effect of the violations—are critical, and ordinarily decisive, factors in determining the severity of the sanction to be imposed, there are other important factors we have identified, including the lawyer’s state of mind which underlies the misconduct, actual or potential injury flowing from the misconduct, the duty of this Court to preserve the integrity of the profession, the risk to the public in allowing the Respondent to continue in practice, and any mitigating or aggravating factors, the attorney’s remorse for the misconduct, the likelihood of repetition of the misconduct, and the attorney’s prior grievance history. (Citations omitted.)

We have stated on numerous occasions that “absent compelling circumstances conduct involving fraud or deceit will result in disbarment.” Attorney Grievance v. Molovinsky, 300 Md. 291, 296, 477 A.2d 1181, 1184 (1984). We have explicated the rationale for this position:

It is well settled that [djisbarment ordinarily should be the sanction for intentional dishonest conduct. This is so, because [ujnlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely en*534twined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. Thus, like in the case of a misappropriation of entrusted funds, in the absence of compelling extenuating circumstances justifying a lesser sanction, intentional dishonest conduct by a lawyer will result in disbarment. (Citations omitted.)

Attorney Grievance v. Ward, 396 Md. 203, 218, 913 A.2d 41, 50 (2006). As to extenuating circumstances, we pointed out in Attorney Grievance v. Vanderlinde, 364 Md. 376, 397, 773 A.2d 463, 475 (2001) (quoting Attorney Grievance v. Flynn, 283 Md. 41, 45, 387 A.2d 775, 777 (1978)), that the compelling extenuating circumstances must be “present and associated with the illegal or improper acts at the time committed.... ” As to the underlying criminal act giving rise to disciplinary action, we have said that “conduct occurring after the crime does not constitute an extenuating circumstance; rather, only mitigating factors present at the time of the commission of the crime are relevant.” Molovinsky, 300 Md. at 297, 477 A.2d at 1184-85. We have defined “mitigating factors,” pursuant to the American Bar Association Standards for Imposing Lawyer Sanctions (ABA Standards) (1986), as including

absence of a prior disciplinary record; absence of a dishonest or selfish motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary board or cooperative attitude toward proceedings; inexperience in the practice of law; character or reputation; physical or mental disability or impairment; delay in disciplinary proceedings; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offenses.

Sweitzer, 395 Md. at 599, 911 A.2d at 448 (citing Attorney Grievance v. Glenn, 341 Md. 448, 488-89, 671 A.2d 463, 483 (1996), for its application of the ABA Standards, Standard 9.31).

*535Although we have hewed to our statement that intentional dishonest conduct ordinarily requires disbarment, we have not ignored our corresponding statement that mitigating factors can lead us to impose a less severe penalty. For example, in Attorney Grievance v. Floyd, 400 Md. 236, 254, 929 A.2d 61, 71 (2007), we explicitly pointed out that Ms. Floyd, who had omitted information in a letter to the Federal Trade Commission, had “engaged in ‘conduct involving dishonesty, fraud, deceit, or misrepresentation’ in violation of [MRPC] 8.4(c).... ” We noted that even though Ms. Floyd had not lied in her letter, “deceit can be based not only on overt misrepresentation but on concealment of material facts.” Floyd, 400 Md. at 252, 929 A.2d at 70. Nonetheless, we imposed only a 90-day suspension, noting that Ms. Floyd had “no prior disciplinary record,” that she had not engaged in “a pattern of misconduct,” and that she had “acknowledged her error.” Floyd, 400 Md. at 259, 929 A.2d at 74.

Similarly, in Attorney Grievance v. Lawson, 401 Md. 536, 576-77, 933 A.2d 842, 866 (2007), we determined that Mr. Lawson engaged in actions that “involved dishonesty and deceit and were prejudicial to the administration of justice.” We “analyz[ed] analogous cases and consider[ed] all of the mitigating and aggravating circumstances, including both Respondent’s relative youth and inexperience and his lack of remorse and apprehension of the wrongness of his actions,” and indefinitely suspended Mr. Lawson, with the right to reapply for admission after one year. Lawson, 401 Md. at 585-86, 933 A.2d at 871. In Attorney Grievance v. Harrington, 367 Md. 36, 48, 51, 785 A.2d 1260, 1267, 1269 (2001), we also determined that the attorney had “engaged in dishonesty, deceit and misrepresentation,” but imposed only an indefinite suspension. Each of these cases is. consistent with our requirement that we “appl[y] the facts and circumstances ... to determine the appropriate sanction” in each attorney grievance case, even in matters involving intentional dishonest conduct. Attorney Grievance v. Duvall, 373 Md. 482, 497, 819 A.2d 343, 352 (2003) (quoting Attorney Grievance v. Lane, 367 Md. 633, 647, 790 A.2d 621, 628-29 (2002)).

*536Of our attorney misconduct cases since Vanderlinde, Sweitzer is the most analogous to the case sub judice. In Sweitzer, 395 Md. at 597, 911 A.2d at 447, the Commission, through Bar Counsel, recommended that we impose the sanction of disbarment because an attorney was found to have violated MRPC 8.4(c) and (d) for “making two misrepresentations—presenting the Gift Certification Form to the [Motor Vehicle Administration (MVA)] for a vehicle he purchased at auction and misrepresenting that he had his former wife’s authority to sign the Gift Certification Form on her behalf—in an effort to avoid payment of a vehicle sales tax and inspection fee.” In that case, Bar Counsel argued “that the most important factors to consider when imposing disciplinary sanctions are the nature of the misconduct and the lawyer’s motives.” Id. In arriving at the appropriate sanction for the lawyer’s misconduct, we considered not only the nature of the lawyer’s conduct and motives, but applied the ABA Standards as a framework for determining that an indefinite suspension was the appropriate sanction. Sweitzer, 395 Md. at 598-606, 911 A.2d at 447-52. We concluded that “an indefinite suspension [was] a more appropriate sanction to impose because [Mr. Sweitzer] ha[d] no other disciplinary record and his violations were not a pattern of misconduct.” Sweitzer, 395 Md. at 606, 911 A.2d at 452.

In that case, we focused on the nature of Mr. Sweitzer’s ethical duty, his mental state, the extent of the actual or potential injury caused by the lawyer’s misconduct, and any aggravating or mitigating circumstances. See ABA Standards, Standard 3.0; see also American Bar Association Lawyer’s Manual on Professional Conduct 101.3001 (2003). We considered the first two factors, the nature of the ethical duty violated and the lawyer’s state of mind, simultaneously, noting that Mr. Sweitzer violated MRPC 8.4(c) and (d) “by attempting to defraud the State of Maryland” through misrepresentations to the MVA to avoid the payment of the vehicle sales tax. Sweitzer, 395 Md. at 599-600, 911 A.2d at 448. Recognizing that a lawyer must be honest and trustworthy, we noted that Mr. Sweitzer’s intentionally dishonest actions, if allowed to go *537unchecked, could undermine the integrity of the legal profession. Sweitzer, 395 Md. at 603-04, 911 A.2d at 450-51. We concluded that Mr. Sweitzer’s “conduct, intentionally deceitful and motivated by pecuniary interest, was egregious.” Sweitzer, 395 Md. at 603, 911 A.2d at 450. Nonetheless, we did not impose the sanction of disbarment, and we did not rest that decision on whether Mr. Sweitzer had been criminally charged or convicted of a crime stemming from his misconduct.

As to the third factor, the amount of the actual or potential injury caused by the attorney’s misconduct, we pointed out that Mr. Sweitzer “withdrew the Gift Certification Form prior to it becoming the basis for a loss by the State of the transfer tax moneys....” Sweitzer, 395 Md. at 604, 911 A.2d at 451. We balanced Mr. Sweitzer’s “attempt to defraud the State of what was a relatively modest amount ... against the injury to the public.” Sweitzer, 395 Md. at 605, 911 A.2d at 451. We did not assess that the injury to the public was so great as to warrant a disbarment. Finally, we considered mitigating circumstances and noted that Mr. Sweitzer did not have a prior disciplinary record and that his violations were not the result of a pattern of misconduct. Sweitzer, 395 Md. at 605, 911 A.2d at 451.

Applying the same Standards that we recognized in Sweitzer to the present case, and recognizing that we must consider the facts and circumstances of each case to determine the appropriate sanction, I would hold, in the present case, that an indefinite suspension is a more appropriate sanction than disbarment. Not unlike Mr. Sweitzer, Mr. Garcia knowingly misrepresented his authority to sign the employment certification letter. Although he did not know all the facts concerning whether the statements contained in the employment certification letter were true, Mr. Garcia’s decision to sign the letter as though he were the employer was, nonetheless, deceptive. Mr. Garcia, however, took steps to withdraw from the conspiracy and attempted to persuade his law partner to withdraw the visa application. “[A] conspirator’s membership in a conspiracy continues until he withdraws from the conspiracy by affirmative action.” United States v. Urbanik, 801 F.2d 692, *538697 (4th Cir.1986) (noting, however, that “[withdrawal must be shown by evidence that the former conspirator acted to defeat or disavow the purpose of the conspiracy”). Although, in the present case, the Government discovered the false statement prior to Mr. Garcia’s request to withdraw the application, the Government did not issue the visa to N.V. and the applicant did not benefit from his or Mr. Garcia’s misdeeds.

In the present case, the injury to the public, in effect, was reduced when no visa was issued or procured by fraud. Though a crime was committed, Mr. Garcia was punished for his complicity in the conspiracy. In that regard, the injury to the public was rectified. Penultimately, two other factors played a significant role in producing Mr. Garcia’s criminal behavior. Although he knew it was wrong and fraudulent to sign the certification letter as he did, Mr. Garcia’s motive was to protect his client’s interest in submitting the visa application before the termination of the amnesty deadline. See Attorney Grievance v. Breschi, 340 Md. 590, 602, 667 A.2d 659, 665 (1995) (noting that motive plays a large part in the Court’s determination of the appropriate sanction). In that regard, Mr. Garcia’s conduct was not as egregious as Mr. Wingerter’s acts to conceal his involvement in hundreds of fraudulent immigration applications over a period of four years. Wingerter, 400 Md. at 219-20, 929 A.2d at 50-51 (holding that the attorney failed to prove any extenuating circumstances that would support a sanction less than disbarment). In WingeHer, Respondent made no attempt to withdraw from the conspiracy or try to minimize the harm done to the public.

Finally, the mitigating factors in this case also support suspension, not disbarment. Here, Respondent demonstrated remorse throughout the course of the underlying criminal proceedings and these disciplinary proceedings. See Attorney Grievance v. McCulloch, 397 Md. 674, 689, 919 A.2d 660, 668 (2007) (identifying remorse as a factor when declining to disbar Ms. McCulloch for misappropriating funds). Both the criminal court judge and the hearing judge in this case commented on Mr. Garcia’s cooperation and genuine remorse *539for his misconduct. There is no prior history of disciplinary action ever initiated against Mr. Garcia. See Sweitzer, 395 Md. at 605-06, 911 A.2d at 451-52 (identifying Mr. Sweitzer’s lack of disciplinary history when declining to disbar him for his misrepresentations); see also Floyd, 400 Md. at 259, 929 A.2d at 74 (identifying Ms. Floyd’s lack of disciplinary history when suspending her for “deceitful conduct”); McCulloch, 397 Md. at 689, 919 A.2d at 669 (identifying Ms. McCulloch’s lack of disciplinary history when declining to disbar her for misappropriating funds). Mr. Garcia’s attorney argues, before this Court, that Mr. Garcia neither “intendfed] to profit personally from his actions,” nor “benefitfted] personally from the conduct,” and he did not try to cover up some other wrongdoing. In other words, although the law firm that employed Mr. Garcia may have been paid for representing N. V., Mr. Garcia “did not anticipate an economic benefit because he thought that the firm was doing a friend of Ms. Quidilla a favor.” In addition, counsel argues that Mr. Garcia’s misconduct is isolated and that his participation in the underlying scheme was as a “minor” participant. See Sweitzer, 395 Md. at 605-06, 911 A.2d at 451-52 (identifying Mr. Sweitzer’s lack of a pattern of misconduct when declining to disbar him); see also Floyd, 400 Md. at 259, 929 A.2d at 74 (identifying Ms. Floyd’s lack of a pattern of misconduct when suspending her). Here, by comparison to Sweitzer, there are more mitigating factors, and, like Sweitzer, there is no pattern of misconduct present that would serve as an aggravating factor.

Accordingly, T dissent. Chief Judge Bell and Judge Murphy concur with the views expressed herein.

. Furthermore, I question the propriety of allowing the Attorney Grievance Commission and Bar Counsel to determine, unilaterally, whether we defer to another state’s judgment in an attorney discipline matter. In a case like this one, where an attorney has committed a "serious" crime and has been disciplined in another state, the Commission has discretion to initiate the case based on either the attorney’s prior conviction or the other state's disciplinary judgment. See Md. Rule 16-*533771(b); Md. Rule 16~773(b). By choosing not to give any weight to New York's decision simply because the Commission initiated this case under Rule 16-771, we undermine our own ability to further the goals of comity and consistency that Rule 16-773 advances.