Attorney Grievance Commission v. Lichtenberg

Concurring Opinion by

WILNER, J., in which HARRELL, J., joins.

I concur in the result. I would dismiss the petition because I do not believe that Bar Counsel has presented to us any *359basis for overturning Judge Kahl’s conclusion that Mr. Lichtenberg did not violate any of the rules or statutes alleged by Bar Counsel. I write separately only to express my disagreement with the Court’s refusal to construe § 22 — 103(f) of the Insurance Article. When charges are brought against an attorney based on the violation of a statute, even one that is subject to administrative enforcement by some Executive agency, it is the proper and necessary function of this Court to construe the statute in the attorney grievance proceeding, if such construction is necessary to determine whether a violation of the Maryland Rules of Professional Conduct has occurred.

I am not aware of any other instance in which this Court has shied from that responsibility simply because the statute has not previously been construed, or because it may be ambiguous, or because it is also subject to administrative enforcement by an Executive agency. If construction of the statute is relevant to a determination of the issue presented to us in the disciplinary proceeding, it is our duty and responsibility to construe the statute, even if the administrative agency is not a party. We are, in this case, ignoring that duty and responsibility and thus leaving uncertain, for every lawyer who operates or works for a title or settlement company, an issue of grave importance to them. The notion that the Court should construe statutes only when adjudicating disputes in the normal litigation context is unprecedented, unwarranted, and unworkable. If this strange notion is intended as a disguised application of the doctrine of primary jurisdiction, it is, for the reasons stated in my dissent in the companion case of Attorney Grievance Commission v. Davis, 379 Md. 361, 842 A.2d 26, 2004 WL 243842 (2004), also Constitutionally inappropriate.

As noted, Judge Kahl found that, by obtaining his client’s consent to retain the interest, over $50, on the escrow funds, Mr. Lichtenberg did not violate § 22-103(f). Bar Counsel excepted to the conclusion, but only on the ground that the statute, in his view, requires the consent of not only the client but also of every other person who may qualify as a beneficial *360owner. Because the consent requirement is stated in the disjunctive — the client or the beneficial owners — and because the term “beneficial owner” is defined to exclude the client, I do not accept Bar Counsel’s argument that, in a case such as this, any other person’s consent was necessary. There may be situations in which third parties will have a property interest in escrowed funds and will therefore be “beneficial owners” whose consent will be required. This was not such a case, however. No one other than Mr. Gigioli could have had any beneficial ownership with respect to the interest generated by the escrow funds.

Bar Counsel did not except to the conclusion on any other basis, including that Mr. Lichtenberg failed properly to obtain his client’s consent. Although, in light of the requirement of COMAR 31.16.03.05, that a client’s consent be obtained either in a separate document or in conspicuous type and initialed by the client, and the absence from this record of evidence of compliance with that regulation, a question may be raised whether Mr. Lichtenberg did properly obtain his client’s consent, Bar Counsel has not argued a violation on that ground, and it would therefore be inappropriate for us, on this record, to find a violation on that basis. We should, however, address and construe the statute based on Bar Counsel’s exception, find no violation on that basis, and not leave Mr. Lichtenberg wondering whether, if he does the same thing tomorrow, he will again be haled before the Attorney Grievance Commission.

Judge Harrell has authorized me to state that he joins in this concurring opinion.