Attorney Grievance Commission v. Shaw

BELL, Chief Judge, Dissenting and Concurring.

In Attorney Grievance v. Shaw, 354 Md. 636, 732 A.2d 876 (1999), this Court held that the finding by the hearing judge that the respondent held herself out as an attorney was clearly erroneous, id. at 652-53, 732 A.2d at 884, being based solely on the respondent’s, use of “Esq.” in correspondence. Id. We noted, however, that we could not “determine whether an attorney-client relationship was formed between Ms. Towson and the respondent; it is at least possible that, after analyzing the facts and circumstances under which the guardian offered the assignment, and the respondent accepted it, the hearing judge could have found that one was entered into.” Id. at 653, 732 A.2d at 884.

This Court also addressed the hearing judge’s findings that the respondent violated Rule 8.4(c), engaging in conduct involving dishonesty, fraud, deceit or misrepresentation, by holding herself out as competent in the area of stock evalúa*14tion and charging an excessive fee for the service she rendered, and Rule 1.1, competence, by undertaking a matter in which she had no experience. As to these findings, we held:

“The only support for these findings is the respondent’s aforementioned inexperience in undertaking to perform the very task for which the hearing judge determined she was ill prepared, but nevertheless holding herself out as competent, presumably because she was a lawyer, when she in fact was not. The findings, thus, may be colored by the hearing judge’s conclusion that the respondent was holding herself out as a lawyer and undertook the task as a lawyer. We have concluded that the former finding was clearly erroneous. That leaves nothing on which to support the latter finding except speculation that the respondent and the guardian were in collusion. But the hearing judge, by finding that the petitioner did not meet its burden with respect to the alleged Rule 8.4(a) violation, has rejected any such charge.”

354 Md. at 656-57, 732 A.2d at 886-87. We concluded, however:

“As we have seen, our precedents indicate that lawyers are disciplined for conduct occurring when they are not practicing law only if that conduct is dishonest or is conduct that reflects adversely on the profession, not each time they may undertake tasks for which they are under qualified or may be inexperienced. The focus of this case was on the respondent’s status as a lawyer and not on the quality of the conduct without regard to that status. From the hearing judge’s opinion, we can not discern that the respondent’s conduct, other than her violation of Rule 8.1, is sanctionable. Because we acknowledge that the record may contain evidence indicating that the respondent was practicing law or had entered into a lawyer-client relationship with the guardian, the case will be remanded for further findings in that regard.”

Id. at 657, 732 A.2d at 887.

Rather than analyze the facts and circumstances to determine whether an attorney client relationship was entered into *15between the guardian and the respondent, as it was invited to do, the hearing judge sought to supply factual support for the finding that the respondent was practicing law. In addition to the respondent’s use of the designation, “Esq.,” it offers only:

“1. The Respondent submitted bills which, in one instance, was entitled ‘Fee for professional services rendered.’ In neither the original hearing nor the hearing on remand did the Respondent explain what profession, other than legal, the bill represented.
“2. At least one of the bills notes that it is for ‘meeting with guardian and review of tax documents: $500.00.’ Review of tax documents, under the circumstances of this case, is clearly a legal undertaking.”

I am not convinced that, singly or in combination, they add anything significant to the resolution of the case. Neither the submission of bills for professional services nor the review of tax documents is an exclusively legal matter. Indeed, many other professionals submit, and have paid, bills for professional services. That one may not, satisfactorily to the trier of fact, explain the nature of the profession for which billing is made or the trier of fact is not convinced that the particular field of endeavor is a profession, does not render the bill one for legal services, by default. As the respondent intimates, consultants submit bills for “Fee for professional services rendered” and they are not practicing law when they do so.

To be sure, under some circumstances, review of tax documents can be a legal undertaking; however, we are not told what it is about this case that makes that the case here. The mere statement that something is so does not make it so and that is all that there is here. The respondent also is correct, there is no evidence in this record to demonstrate that what the respondent did was legal work under the circumstances of this case.

I would grant the respondent’s exceptions as to the findings with respect to the practice of law. With them, the violations of Rules 1.1, 1.5, and 8.4(c) and (d) would fall. The only conduct for which sanction is appropriate is then for violation *16of Rule 8.1, failure to respond to a lawful demand of Bar Counsel.

The majority imposes a sanction of a one year suspension for all of the violations it upholds, in addition to Rule 8.1, Rules 1.1, 1.5, and 8.4(c) and (d). Except for the fact that it would be only for violation of Rule 8.1, I agree that the sanction of a one year suspension is appropriate.