Attorney Grievance Commission v. Bridges

RAKER, Judge,

dissenting:

It is clear that in Maryland, as in most jurisdictions, failure to cooperate with disciplinary authorities may constitute attorney misconduct under Maryland Rule 8.1(b). See Attorney Griev. Comm. v. Milliken, 348 Md. 486, 519, 704 A.2d 1225, 1241 (1998)(stating that “[a]s an attorney licensed to practice law in the State of Maryland, Respondent has submitted to the exclusive disciplinary jurisdiction of this Court. The refusal of an attorney to respond to a demand by the disciplinary authority is sanctionable conduct under Rule 8.1(b)”); see also Attorney Griev. Comm. v. Hallmon, 343 Md. 390, 681 A.2d 510 (1996). This Court has previously noted that “[t]he gravity of the misconduct is not measured solely by the number of rules broken, but is determined largely by the lawyer’s conduct.” Milliken, 348 Md. at 519, 704 A.2d at 1241. I agree with the majority that Respondent’s conduct constituted a violation of that rule. There is no doubt that full disclosure of facts and circumstances surrounding alleged misconduct is fundamental to Bar Counsel’s responsibility of investigating complaints.

I part company with the majority, however, as to the appropriate sanction in this case. I would impose a suspen*518sion for ten days. In imposing a sanction for attorney misconduct, the severity of the sanction depends on the facts and circumstances of each case. The purpose of the sanction is not to punish the lawyer, but, as the majority notes, it is to protect the public and demonstrate to lawyers that the particular conduct will not be tolerated.

While a public reprimand is often fitting for failure to respond to inquiries of Bar Counsel, in my view, it is not the appropriate discipline in this case. Respondent refused to provide the requested information to Bar Counsel, refused to provide requested documents, and indeed, destroyed some of them, and attempted to evade the disciplinary authorities. He failed to appear at the inquiry panel hearing and refused to cooperate with the panel. The hearing judge stated that he was “left with the distinct impression that Respondent’s inability to provide information throughout these proceedings constituted a direct attempt to conceal inappropriate behavior on his part.” This Court found these findings of fact not clearly erroneous. Respondent’s conduct in this case was egregious and should be considered an aggravating factor in imposing a sanction.

With the exception of the privilege against self incrimination, see Spevack v. Klein, 385 U.S. 511, 516, 87 S.Ct. 625, 628, 17 L.Ed.2d 574 (1967) and Maryland Rule 1.6, Confidentiality of Information, an attorney is required to cooperate with Bar Counsel in discipline matters. It cannot be questioned that “[i]t is vital to the accused lawyer, the members of the bar, and the general public that a complaint against a lawyer be promptly investigated and evaluated.” Committee on Prof'l. Ethics and Conduct of the Iowa State Bar Assoc. v. Horn, 379 N.W.2d 6, 8 (1985). Indeed, in holding that even though the disciplinary complaint was dismissed, the attorney could be disciplined for failure to cooperate with the disciplinary authority, the Washington Supreme Court said:

Compliance with these [state bar] rules is vital. The practice of law has been a profession of the highest order since its inception and it must continue to be so. Internal investigation of a complaint is an integral part of the machinery *519for handling charges regarding the ethics and conduct of the attorneys admitted to practice before this court. Public confidence in the legal profession, and the deterrence of misconduct, require prompt, complete investigations. The process of investigating complaints depends to a great extent upon an individual attorney’s cooperation. Without that cooperation, the Bar Association is deprived of information necessary to determine whether the lawyer should continue to be certified to the public as fit. Obviously, unless attorneys cooperate in the process, the system fails and public confidence in the legal profession is undermined. If the members of our profession do not take the process of internal discipline seriously, we cannot expect the public to do so and the very basis of our professionalism erodes. Accordingly, an attorney who disregards his [or her] professional duty to cooperate with the [disciplinary authority] must be subject to severe sanctions.

In re Clark, 99 Wash.2d 702, 663 P.2d 1339, 1341-42 (1983).

Although any sanction this Court imposes is serious, I believe that a reprimand, under the circumstances presented herein, sends the wrong message. Respondent’s failure to cooperate, and his destruction of records was viewed by the hearing court, and this Court, as an attempt to cover up his inappropriate behavior. A greater sanction than a reprimand under these particular circumstances is required. An attorney should not be permitted to ignore investigative inquiries and gamble that the complainant or other witnesses would not be available to develop the facts at a later time.

Judge RODOWSKY has authorized me to state that he joins in the views expressed in this dissenting opinion.