Attorney Grievance v. Bonner ( 2022 )

Attorney Grievance Commission of Maryland v. Keith M. Bonner, Miscellaneous Docket
AG No. 51, September Term, 2020, Opinion by Booth, J.
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT
Respondent Keith M. Bonner violated the District of Columbia Rules of Professional
Conduct (“D.C. Rules”) 8.4 (a), (b), and (c) by misappropriating funds from his law firm
over a period of several years and making numerous knowing and intentional
misrepresentations to principals and employees at his law firm to conceal the misconduct.
Considering the nature of Mr. Bonner’s misconduct and the various mitigating and
aggravating factors present here, the Court of Appeals concluded that disbarment is the
appropriate sanction.
Circuit Court for Montgomery County
Case No.: 484242-V
Argued: November 8, 2021
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 51
September Term, 2020
ATTORNEY GRIEVANCE COMMISSION OF
MARYLAND
v.
KEITH M. BONNER
Getty, C.J.
*McDonald
Watts
Hotten
Booth
Biran
Gould,
JJ.
Opinion by Booth, J.
Filed: March 3, 2022
*McDonald, J. now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
Pursuant to MD Constitution, Article IV, Section
3A, he also participated in the decision and
2022-03-03 14:27-05:00
adoption of this opinion.
Suzanne C. Johnson, Clerk
“How much more grievous are the consequences of anger than the causes of it.”
Aurelius, Marcus. 2014. Meditations. Translated by Martin Hammond. Penguin Pocket
Hardbacks. London, England: Penguin Classics.
In this attorney grievance proceeding, we must determine the sanction to impose for
an attorney’s misconduct involving misappropriation of funds from his law firm in which
he was a founding partner and member for decades. Respondent Keith Bonner freely
admits to the facts of the misconduct and resulting violations of the professional ethical
rules applicable to his misconduct. The case he presents to this Court in his defense relates
almost exclusively to the mitigating factors that this Court should consider when imposing
a sanction (in addition to one aggravating factor to which he excepts). Specifically, he
asserts that he has shown sufficient mitigating circumstances to justify a deviation from
our case law, which generally imposes the sanction of disbarment where an attorney’s
misconduct involves theft or intentional misappropriation of funds. Prior to our
consideration of the sanction, as we always do, we shall describe the procedural history, as
well as the hearing judge’s findings of fact and conclusions of law. We shall then discuss
our case law concerning sanctions where intentional misconduct involves theft or
misappropriation, as well as Mr. Bonner’s argument that we should consider the emotional
problems that he experienced during the period of his misconduct—anger, frustration, and
feelings of entitlement and self-righteousness—as a mitigating factor in this case, along
with the other mitigating factors that are present here, which he asserts warrant the
imposition of a sanction less than disbarment.
On November 30, 2020, the Attorney Grievance Commission of Maryland
(“Commission”), acting through Bar Counsel, filed a Petition for Disciplinary or Remedial
Action (“Petition”) against Respondent Keith M. Bonner, in connection with his
misappropriation of funds from his former law firm. The Petition alleged that Mr. Bonner
violated the Maryland Attorneys’ Rules of Professional Conduct 19-308.4(a), (b), (c) and
(d).1 Thereafter, Bar Counsel filed an Amended Petition, asserting that, in the event that the
Court determined that under the choice of law provisions set forth in Maryland Rule 8.5(b),
the District of Columbia Rules of Professional Conduct (“D.C. Rules”) applied to the
underlying conduct, then Mr. Bonner’s conduct violated D.C. Rules 8.4(a), (b), (c), and (d).
Pursuant to Maryland Rule 19-722(a) and 19-727, this Court designated the
Honorable Harry C. Storm of the Circuit Court for Montgomery County (“hearing judge”)
to conduct a hearing regarding the alleged violations and to make findings of fact and
conclusions of law. The hearing judge held an evidentiary hearing over Zoom for
Government on April 26 and 27, 2021. Following the hearing, Bar Counsel withdrew the
charge relating to a violation of D.C. Rule 8.4(d).
Following the hearing, the hearing judge issued written Findings of Fact and
Conclusions of Law. The hearing judge applied the choice of law provisions in Maryland
1
During much of the period relevant to this case, the ethical rules governing
attorneys were entitled the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
and were codified in an appendix to Maryland Rule 16-812. Effective July 1, 2016, the
MLRPC were renamed the Maryland Attorneys’ Rules of Professional Conduct
(“MARPC”) and recodified in Title 19 of the Maryland Rules without substantive changes.
See Maryland Rules 19-300.1 et seq. We shall use the current codification of those rules
in this opinion. Additionally, for readability, we will use shortened references – i.e.,
Maryland Rule 19-301.1 will be referred to as “Maryland Rule 1.1.”
2
Rule 8.5(b)2 and determined that the D.C. Rules applied to Mr. Bonner’s conduct because
the “predominant effect of the conduct” occurred in the District of Columbia. The hearing
judge concluded that Mr. Bonner violated D.C. Rules 8.4(a), (b), and (c). The hearing
judge also made findings related to the presence of aggravating factors and mitigating
factors for this Court’s consideration in devising the appropriate sanction.
This Court has original and complete jurisdiction in attorney discipline proceedings
and conducts an independent review of the record. Attorney Grievance Comm’n v. Ambe,
425 Md. 98, 122–23 (2012) (internal citations omitted). We review the hearing judge’s
findings of fact under the clearly erroneous standard. Id. When no exceptions are filed to
a hearing judge’s findings of fact, we accept them as established. Md. Rule 19-
2
Maryland Rule 8.5(b) states:
In any exercise of the disciplinary authority of this State, the rule of
professional conduct to be applied shall be as follows:
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the attorney’s
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. An attorney shall not be subject to the discipline if the
attorney’s conduct conforms to the rules of a jurisdiction in which the
attorney reasonably believes the predominant effect of the attorney’s
conduct will occur.
(Emphasis added). The hearing judge correctly applied Maryland Rule 8.5(b) and
determined that the D.C. Rules should apply to the conduct. See Attorney Grievance
Comm’n v. Tatung, 476 Md. 45 (2021). Bar Counsel initially filed exceptions to the
hearing judge’s legal conclusion that the D.C. Rules applied. Prior to oral arguments in
this case, Bar Counsel withdrew its exception.
3
740(b)(2)(A). Additionally, we “may confine [our] review to the findings of fact
challenged by the exceptions.” Md. Rule 19-740(b)(2)(B). In this case, neither party filed
any exceptions to the hearing judge’s findings of fact. Indeed, since the inception of Bar
Counsel’s investigation, Mr. Bonner has admitted to the misconduct that forms the basis
of the charges. We summarize these undisputed facts below.
I
Facts
Mr. Bonner’s Education and Bar Admissions
Mr. Bonner obtained a bachelor’s degree from Marquette University in 1976 and
his law degree from Georgetown University Law Center in 1979. Immediately thereafter,
he clerked in the Superior Court of the District of Columbia. He was admitted to the
District of Columbia Bar in 1980 and to the Maryland Bar in 1990.
Mr. Bonner’s Partnership in Bonner Kiernan Trebach & Crociata, LLP
Throughout his career, Mr. Bonner specialized in insurance defense, working at two
law firms prior to forming Bonner Kiernan Trebach & Crociata LLP (“the Firm”) with
three of his colleagues in 2001. Because Mr. Bonner’s surname generated name
recognition (largely due to his father’s prominence associated with representing two
government actors in the Watergate hearings), the partners decided to list Mr. Bonner’s
name first in the Firm’s name. The Firm started with 42 attorneys, and grew to
approximately 86 attorneys, including 12 equity partners, with offices in nine states. The
Firm’s largest office and the administrative headquarters is in D.C. The Firm primarily
4
represents corporations and insurance companies, focusing on defense litigation and risk
management.
From the Firm’s beginning and continuing to the present, Barry Trebach has
functioned as the managing partner. Kevin McCarthy, CPA, is the Firm’s Chief Financial
and Administrative Officer. Mr. Trebach and Mr. McCarthy both testified in this matter
on behalf of Bar Counsel.
Under the Firm’s compensation system, the four founding partners were generally
compensated equally within a compensation tier. However, after the implementation of a
Compensation Committee in 2012, each equity partner had the opportunity to make a
presentation on why an individual adjustment was appropriate. On an annual basis, each
equity partner made a presentation to the Committee addressing the scope and status of his
work, planned actions for client and business development, projections for the upcoming
year, etc., and the Committee would decide whether to change that attorney’s
compensation.
Mr. Bonner was an important part of the Firm, and unquestionably a successful and
respected attorney. He worked hard, generated substantial business, and had strong client
relationships. Christopher Hassell, a former partner of Mr. Bonner’s, testified that Mr.
Bonner was an excellent trial lawyer who had the ability to spot strengths and weaknesses
in cases.3 According to Mr. Hassell, Mr. Bonner was also a tremendous marketer, who
kept his clients well informed.
3
The hearing judge noted that in 2016, Mr. Bonner was recognized by the District
of Columbia Defense Lawyers Association as its “Lawyer of the Year.”
5
Notwithstanding the apparent success of both Mr. Bonner and the Firm, the
relationship between Mr. Bonner and some of his partners was less than harmonious. Mr.
Bonner believed that certain equity partners were not making the same efforts to contribute
to the success of the Firm. For example, Mr. Bonner testified that, from the inception of
the Firm, he was frustrated by what he perceived to be unequal contributions by some
equity partners and asserted that a couple of his partners repeatedly billed approximately
one-half of the hours that were expected of them.
Mr. Bonner described feeling alienated and isolated at the Firm. He testified that
he was routinely not invited to lunch or other events, or he was invited after the fact, “as a
kind of joke.” Mr. Bonner also recounted that, following a heart attack in June 2012, none
of his partners came by to see how he was doing upon his return to the office. On another
occasion, after he was injured on a client golf outing, no one came to check on him when
he returned to the office. He testified that he felt like no one at the Firm cared about him.
According to Dr. Sidney Binks, a clinical neuropsychologist who testified on Mr. Bonner’s
behalf, Mr. Bonner “felt edged out,” “like there was a move afoot to take [him] out of
leadership.” In 2016, Mr. Bonner stepped down from the Firm’s Executive Committee.
Mr. Bonner felt that he was not being appropriately compensated and deserved more
money. In his mind, whether real or perceived, no one at the Firm was working the same
number of hours or generating a comparable amount of business as him. Although he
presented his case to the Compensation Committee for a number of years, he was kept in
the same compensation tier as the other founding partners. Mr. Bonner testified that he
was frustrated and angry over the manner in which some partners treated him, and in
6
particular, what he perceived to be the inequity in the compensation structure. Rather than
leaving the Firm, as he acknowledged he should have done, he determined that if he
“wasn’t going to get paid any more[, he] would treat himself to certain things.” His
misconduct followed.
Mr. Bonner’s Misconduct
1. The 2012 Misconduct
Mr. Bonner’s first acts of misconduct occurred in 2012, at a time when the Firm’s
equity partners had an unwritten policy that legitimate business expenses would be
reimbursed by the Firm. The policy had been in effect since at least 2002. The Firm did
not have a per diem for meals and travel; rather, it relied on the partners to be reasonable
in their spending with the understanding that valid business expenses would be reimbursed
by the Firm.
On July 23, 2012, Mr. Bonner booked flights to Bermuda for himself, his wife, and
their four children. One of the Firm’s primary clients, XL Catlin Insurance Company
(“XL” or “XL Catlin”), maintained an office in Bermuda. On July 25, 2012, Mr. Bonner
emailed XL Catlin’s CEO, Michael McGavick,4 and asked Mr. McGavick if he would be
in Bermuda during the time period of Mr. Bonner’s trip. Mr. McGavick replied that he
would not be in Bermuda at that time.
While in Bermuda, Mr. Bonner did not perform any work or client development
associated with XL Catlin and improperly charged $3,070.11 to the Firm’s American
4
Mr. Bonner and Mr. McGavick are also close personal friends. They are the
godparents of one another’s children.
7
Express credit card for his family’s personal hotel and restaurant expenses. Mr. Bonner
also submitted false time entries for August 15–18, 2012, which reflected eight hours of
non-billable time each day with a description, “XL Group, Mike McGavick.” The hearing
judge determined that Mr. Bonner made knowing and intentional misrepresentations that
he had engaged in client development activities in Bermuda to conceal the personal nature
of his expenses for which he was seeking reimbursement.
On August 24, 2012, Mr. McCarthy asked Mr. Bonner for additional information
regarding his Bermuda charges. Mr. Bonner replied in writing that, “Mike McGavick
invited me to Bermuda last week. Bermuda charges are client dev. [sic] I ate a lot of
charges.” On September 13, 2012, Mr. Bonner emailed the Firm’s equity partners with the
subject line “XL Group - Status.” In this email, Mr. Bonner again falsely stated that he
went to Bermuda at Mr. McGavick’s invitation, and summarized the trip as follows:
I recently had the opportunity to travel to XL’s beautiful offices in Bermuda
@ Mike McGavick’s invitation . . . Mike has invited me a number of times
previously, but I decided to go this time because we didn’t have a stellar
beginning on our first case with them. I had struck out all summer trying to
re-establish contact with Ginny Lloyd (VP Global Claims) and needed some
“guidance” regarding getting back in the mix. Mike couldn’t have been nicer
about it and brought up all of the good things [the Firm] had done for him
and his companies in the past. He said he’d talk to Jim DiV. to see what
could be done. It was clear from our discussions (and there were many) that
we needed to get in front of the adjusters and Ginny again. To make a long
story short, I have spoken with Ginny (finally) and have reached out to some
of the adjusters. I am going to meet with several on Sept 25 and actually play
golf with them. While Ginny is not available, she says she will find time
early next month for a face-to-face. It’s almost like starting over again, but
I think it’s the best path.
The hearing judge determined that Mr. Bonner’s email to his partners contained knowing
and intentional false statements, specifically, that: his trip to Bermuda was at Mr.
8
McGavick’s invitation; he visited XL’s office in Bermuda; and he engaged in client
development while in Bermuda. The hearing judge determined that Mr. Bonner made these
false statements to conceal the personal nature of his Bermuda trip that he was attempting
to improperly pass off as a business trip for reimbursement purposes.
Members of the Firm’s Executive Committee investigated the Bermuda charges and
discovered Mr. Bonner’s July 25, 2012 email to Mr. McGavick, as well as the folio of Mr.
Bonner’s hotel stay, which reflected charges for two hotel rooms to the Firm’s credit card.
Two of the Firm’s equity partners confronted Mr. Bonner about the charges. Mr. Bonner
initially denied the allegations. Minutes later, he confessed, apologized, promised that the
conduct would not be repeated, and offered to tender his resignation. The Firm took no
official action but required that Mr. Bonner repay the $3,070.11 in trip expenses, which he
repaid in full.
In response to this incident, on October 5, 2012, the Firm issued a written
“Standardization of Bonner Kiernan Equity Partner Expense Policy” (the “Expense
Policy”). The policy contained language confirming that the policy was not new and had
been in existence since the Firm’s founding. The Expense Policy included the following:
Petty Cash Expenses and Advances
All petty cash funds should be supported by original receipts, similar to any
other expense reimbursement. There are times when this is not practical (i.e.
small cash tips of small cash payments for services), however receipts are
generally available and need to be included. For petty cash advances it is
incumbent on the partner receiving an advance to substantiate the advance
with actual receipts similar to any other expense reimbursement. Advances
that are not substantiated within two weeks will be treated as a draw and
reconciled with any true up distribution.
9
American Express and Other Credit Card Charges
All charges on the firm American Express card (as well as personal credit
card charges where you are seeking reimbursement) need to be supported
with actual receipts, and not just notes on the credit card statement. In the
case of the firm American Express card these receipts should be submitted to
Beth Lavilla with a description of the charge within one week of your
receiving a copy of the charges on the current month’s statement. For firm
expenses on your personal card these receipts should be submitted with your
reimbursement request.
2. The 2015–2019 Misconduct
In the fall of 2019, Mr. McCarthy noticed that Mr. Bonner had submitted
reimbursement requests for two different activities that had taken place on the same
evening. One reimbursement request was for the District of Columbia Defense Lawyers
Association’s (“DCDLA”) annual banquet, and the other consisted of expenses incurred
for an Argyle Country Club Independence Day Celebration, which Mr. Bonner attributed
to “client development” with Mr. McGavick. Mr. McCarthy was suspicious of these
charges and raised them with the Firm’s Executive Committee. The Committee tasked Mr.
McCarthy with investigating both the charges in question, as well as Mr. Bonner’s other
business expenses dating back to 2015.
The investigation uncovered a pattern of misconduct by Mr. Bonner beginning in
2015. Mr. McCarthy determined that Mr. Bonner had improperly submitted the Argyle
Country Club charges described above, and he also identified dozens of other questionable
charges, which were ultimately determined to be personal expenses that Mr. Bonner was
attempting to masquerade as business expenses. The Executive Committee reviewed Mr.
McCarthy’s findings and presented them to the equity partners.
10
On November 4, 2019, Mr. McCarthy, along with two of the Firm’s equity partners,
John Kiernan and Alan Block, confronted Mr. Bonner with the findings of the
investigation. Mr. Kiernan advised Mr. Bonner that he could resign or face expulsion at a
meeting scheduled for the following week. Mr. Bonner pleaded with Messrs. Kiernan and
Block to reconsider his expulsion without success. Mr. Bonner was given a notice barring
him from the Firm’s premises and was escorted from the office.
Mr. Bonner retired from the Firm effective November 9, 2019. In March 2020, Mr.
Bonner and the Firm finalized the details surrounding his retirement. Through an offset of
his capital account balance, he paid the Firm the sum of $35,000, which the Firm agreed
“constitute[d] full restitution by Bonner for any allegedly improper expenses, including the
costs of the investigations related thereto.”
The Firm’s Disciplinary Complaint Against Mr. Bonner
The Firm filed a complaint with the D.C. Office of Disciplinary Counsel and with
the Commission. As it pertains to the charges in the Petition filed by the Commission, the
Firm’s complaint included the $3,070.11 charge from Mr. Bonner’s 2012 Bermuda trip,
and over $20,000 that the Firm contended Mr. Bonner improperly charged from 2015–
2019. Mr. Bonner cooperated with the investigation, responded to the complaint, and
provided substantial detail regarding the allegations. On March 24, 2020, Mr. Bonner
submitted a lengthy narrative response to Bar Counsel. Although Mr. Bonner contended
that some of expenses identified in the complaint were proper business expenses, he
acknowledged that much of the conduct identified in the complaint violated his ethical
obligations. He also conveyed remorse.
11
Summary of Improper Expenses and Misconduct Related Thereto
The hearing judge found “that Mr. Bonner engaged in a pattern of misconduct that
involved expensing personal items” to the Firm and by “making a variety of false
statements to cover up the true nature of those expenses by characterizing them as client
development.” The hearing judge determined that “[h]e engaged in this behavior once in
2012 and on approximately 35 occasions between 2015 and 2019. In doing so, [Mr.
Bonner] improperly expensed $3,070.11 in 2012 and $11,184.84 [between 2015 and 2019],
for a total of $14,254.95.” The hearing judge summarized the improper charges submitted
during the 2015–2019 time period as follows.
1. Improper Country Club Expenses.
The hearing judge found that Mr. Bonner submitted “illegitimate charges” related
to the Argyle Country Club, on four days in 2018 and 2019, totaling $639.86. In each
instance, the charges were for personal use, and Mr. Bonner, through notations on
reimbursement requests, knowingly and intentionally mispresented that they were for
“client development.”
2. Improper Personal Charges to the Firm’s Credit Card (Without Any Explanation
by Mr. Bonner)
The hearing judge found that between 2015–2019, Mr. Bonner knowingly and
intentionally charged personal expenses to the Firm’s credit card for meals at D.C.
restaurants on 13 occasions without any explanation, totaling $1,449.68.
3. Improper Personal Charges to the Firm’s Credit Card (With Accompanying
Knowing and Intentional Misrepresentations)
12
On 14 occasions, Mr. Bonner improperly charged personal expenses to the Firm’s
American Express credit card, totaling $7,967.30, and in doing so, made knowing and
intentional misrepresentations about the nature of the charges. With respect to these
charges, the hearing judge found that “on numerous occasions,” Mr. Bonner made
intentional misrepresentations “to cover up that the expenses were actually personal in
nature.” These misrepresentations included handwritten notes on credit card statements
and receipts falsely attributing expenses to “client development.” For some charges, Mr.
Bonner created false calendar entries and false time entries in a further effort to conceal the
improper nature of the charges. For example, Mr. Bonner took his wife to see the
Broadway musical, “Hamilton” in New York City between September 13–14, 2016, and
improperly charged $1,156.82 to the Firm’s credit card for transportation, meals, and hotel
expenses. To conceal the improper nature of these charges, Mr. Bonner created false
calendar entries for those dates indicating that he was scheduled to engage in client
development activities in New York City with two different clients from 8:00 a.m. through
6:00 p.m. each day. He also submitted false time entries for those dates.5
Mr. Bonner also charged similar improper personal expenses, making similar
knowing and intentional misrepresentations (through false calendar entries and false time
5
In Mr. Bonner’s false time entries for September 13–14, 2016, Mr. Bonner
misrepresented that he spent 4 hours of travel time to New York City “for client meetings”;
1 hour of client development with “QBE”; 4.5 hours of client development for “meeting
and lunch” with “XL Carlin [sic] in New York City”; and 10 hours of client development
time with “Berkley and AIG”, and return travel to Washington, D.C.
13
entries) associated with a family trip to San Francisco in March 2017,6 a vacation in
Nashville in September 2017,7 a trip to see a Broadway show in New York City in
September 2018,8 a trip to Boston and Maine in July 2019,9 as well as several personal
meals at D.C. restaurants. In connection with trips to San Francisco and Nashville, Mr.
Bonner sent emails to the Firm’s equity partners describing client development activities
and meetings that never happened. With respect to the restaurant expenses, Mr. Bonner
knowingly and intentionally misrepresented that the personal expenses were associated
with “client development” on the credit card statements and/or receipts. Some of the
6
In connection with the family vacation in San Francisco, in addition to creating
false calendar entries and false time entries, Mr. Bonner sent an email to the Firm’s equity
partners in which he knowingly and intentionally misrepresented that he had engaged in
client development activities during his trip, describing a meeting that never happened.
7
The primary purpose of the vacation was for the Bonners to see one of their
daughters perform at the Grand Ole Opry. While in Nashville, Mr. Bonner stopped by the
office of one of his clients for approximately one hour and dropped off a box of donuts.
He did not engage in any other client development while in Nashville, and improperly
charged $1,638.66 to the Firm’s credit card for airfare, car rental, meals, and hotel
expenses. Similarly, he submitted false time entries for client development, including
“meetings” and “dinner.” He followed up with an email to the Firm’s equity partners on
September 25, 2017, in which he knowingly and intentionally mispresented that he
engaged in client development activities during his Nashville trip, describing in detail client
development and meetings that did not happen.
8
Mr. Bonner improperly charged the Firm credit card $1,949.90 for train tickets,
meals, hotel, parking, and transportation expenses. Like the other expenses, Mr. Bonner
created false calendar entries and false time sheets to conceal the improper nature of these
charges, misrepresenting that he spent 4.5 hours traveling to New York for “meeting with
AIG, Berkley, XL and Zurich,” 3 hours of client development and meetings with XL, and
8 hours of client development meetings and lunch with AIG.
9
The hearing judge found that Mr. Bonner traveled to Boston, where he met with
partners at the Firm’s Boston office for a few hours, and then continued to Maine for a
vacation with his wife. The hearing judge determined that Mr. Bonner improperly charged
$742.07 to the Firm’s credit card for airfare, meals, and hotel expenses.
14
restaurant expenses were accompanied by false calendar entries indicating that he was
having meals with clients.
4. Misappropriation of Amtrak Vouchers
On three occasions between 2018 and 2019, Mr. Bonner improperly used vouchers
totaling $878.00 issued by Amtrak for cancelled tickets previously charged to the Firm’s
credit card for personal travel by his daughters, his wife, and himself.
5. Misappropriation of Petty Cash
Between 2015 and 2019, Mr. Bonner received petty cash advances from the Firm
totaling $5,770. Mr. Bonner admits that he improperly used the Firm’s petty cash on four
occasions, totaling $250. On those occasions, he withdrew petty cash for trips that he
anticipated would involve client development but on which he spent little or no client
development time. Mr. Bonner never returned the funds to the Firm, which he admitted
was improper. Other than the $250 described above, the hearing judge determined that
there was no evidence that Mr. Bonner improperly spent other petty cash advances or had
a general practice of doing so.10
10
The hearing judge accepted Mr. Bonner’s testimony that he routinely used petty
cash for incidentals such as tipping volunteers at the Firm’s annual golf outings, waitstaff
at the Firm’s annual holiday parties, and hotel staff while traveling. Mr. Bonner provided
records and details corroborating these instances, which were also confirmed by Mr.
Hassell. Although the hearing judge determined that these expenses were not improper, he
nonetheless determined that “[t]he record establishes that Mr. Bonner did not provide
receipts substantiating his petty cash expenditures and that this violated the Firm’s internal
policy.”
15
II
Conclusions of Law
The hearing judge determined that Mr. Bonner violated D.C. Rule 8.4(a), (b), and (c).
We conduct a de novo review of the hearing judge’s conclusions of law. Md. Rule 19-
740(b)(1). Neither party filed exceptions to the hearing judge’s conclusions of law. Based
upon our independent review of the record, we agree with the hearing judge’s conclusions
that Bar Counsel established a violation of these rules by clear and convincing evidence.
D.C. Rule 8.4(a)
D.C. Rule 8.4(a) provides: “It is professional misconduct for a lawyer to: (a)
[v]iolate or attempt to violate the Rules of Professional Conduct[.]” As discussed below,
because we determine that Mr. Bonner violated D.C. Rule 8.4(b) and (c), we conclude that
he also violated D.C. Rule 8.4(a).
D.C. Rule 8.4(b)
D.C. Rule 8.4(b) provides: “It is professional misconduct for a lawyer to: (b) [c]ommit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness, or fitness as
a lawyer in other respects[.]” The hearing judge concluded that, between 2012 and 2019,
Mr. Bonner engaged in a “pattern of misconduct” in which he “intentionally
misappropriated more than $14,000 from the Firm in about 35 separate transactions.” The
hearing judge determined that “Mr. Bonner used deception and false pretenses—conduct
amounting to theft11 despite the absence of criminal charges—by misrepresenting either
11
The District of Columbia Theft statute is found at D.C. Code § 22-3211 and
provides:
16
directly, or by omission, that charges and expenses were legitimate business expenses.”
Based upon our independent review of the record, we agree with the hearing judge’s
conclusion.
D.C. Rule 8.4(c)
D.C. Rule 8.4(c) provides: “It is professional misconduct for a lawyer to: (c) [e]ngage
in conduct involving dishonesty, fraud, deceit, or misrepresentation[.]” We agree with the
hearing judge’s conclusion that Mr. Bonner violated D.C. Rule 8.4(c) through his actions taken
in an effort to conceal the personal nature of expenses that he submitted to the Firm for
reimbursement, including: falsely reporting “client development” time through entries on
expenses receipts and statements and by falsely creating calendar entries and time entries
identifying time spent with clients. The hearing judge correctly determined that each false and
dishonest statement made in connection with these personal expenses constituted a violation
of D.C. Rule 8.4(c).
(a) For the purpose of this section, the term “wrongfully obtains or uses”
means: (1) taking or exercising control over property; (2) making an
unauthorized use, disposition, or transfer of an interest in or possession of
property; or (3) obtaining property by trick, false pretense, false token,
tampering, or deception. The term “wrongfully obtains or uses” includes
conduct previously known as larceny, larceny by trick, larceny by trust,
embezzlement, and false pretenses.
(b) A person commits the offense of theft if that person wrongfully obtains
or uses the property of another with intent:
(1) To deprive the other of a right to the property or a benefit of the
property; or
(2) To appropriate the property to his or her own use or to the use of
a third person.
17
III
Legal Questions Involving the Choice of Law Provisions
(Maryland Rule 8.5(b))
As noted above, neither party filed exceptions to the findings of fact or conclusions
of law as found by the hearing judge and summarized above. The key dispute in this case
involves the appropriate sanction that this Court should impose for Mr. Bonner’s admitted
misconduct. Before we turn to sanctions, we address two legal issues raised in this case
that pertain to the hearing judge’s application of the D.C. Rules to Mr. Bonner’s
misconduct, one of which is raised by Bar Counsel in the form of exceptions, and the other
of which is asserted by Mr. Bonner in connection with his sanction argument. We address
Bar Counsel’s exception first.
1. Bar Counsel’s Exception to the Hearing Judge’s Failure to Apply Both the D.C.
Rules and the Maryland Rules to the Same Underlying Misconduct Under Rule
8.5(b)
As noted above, Bar Counsel initially charged Mr. Bonner with violating Maryland
Rule 8.4 (a)–(d). Bar Counsel subsequently amended its petition by charging Mr. Bonner
with violating D.C. Rule 8.4(a)–(d), as an alternative to the charges filed under the
corresponding Maryland Rule, in the event that this Court determined that the D.C. Rules
applied under the choice of law provisions of Maryland Rule 8.5(b).
Based upon charges filed, the hearing judge correctly applied Maryland Rule 8.5(b)
and determined that, because the predominant effect of Mr. Bonner’s misconduct occurred
in the District of Columbia, the D.C. Rules should apply to the underlying conduct. The
hearing judge proceeded to make conclusions of law pertaining only to the D.C. Rules, and
18
found violations of D.C. Rule 8.4 (a), (b), and (c). The hearing judge did not make any
legal conclusions pertaining to D.C. Rule 8.4(d) because Bar Counsel dismissed that
charge. Nor did the hearing judge make conclusions pertaining to the corresponding
Maryland Rule for the same underlying misconduct.
Although Bar Counsel initially excepted to the hearing judge’s application of the
D.C. Rules to the underlying conduct, Bar Counsel withdrew its exception, presumably
based upon our decision in Attorney Grievance Commission v. Tatung, 476 Md. 45, 74
(2021). Notwithstanding the fact that Bar Counsel is no longer excepting to the application
of the D.C. Rules, Bar Counsel nonetheless asserts that the hearing judge erred in failing
to make legal conclusions under both the Maryland Rules and the D.C. Rules that were
pleaded in the alternative, which pertain to the same underlying misconduct. We overrule
Bar Counsel’s exceptions for the reasons set forth herein.
We recently described the genesis of Maryland’s choice of law rule that applies to
allegations of an attorney’s professional misconduct—Maryland Rule 8.5(b)—in Tatung.
476 Md. at 74. It was added by a rules order of this Court in February 2005 in light of
changes that were made in 2000 to the ABA Model Rules. Id. Maryland Rule 8.5(b)
“establishes the set of professional conduct rules that apply when an attorney practices in
more than one jurisdiction—either by virtue of their physical presence or contacts with a
particular jurisdiction, or their license to practice in more than one jurisdiction.” Id. at 77.
Maryland Rule 8.5(b) states:
In any exercise of the disciplinary authority of this State, the rule of
professional conduct to be applied shall be as follows:
19
(1) for conduct in connection with a matter pending before a tribunal, the
rules of the jurisdiction in which the tribunal sits, unless the rules of the
tribunal provide otherwise; and
(2) for any other conduct, the rules of the jurisdiction in which the attorney’s
conduct occurred, or, if the predominant effect of the conduct is in a
different jurisdiction, the rules of that jurisdiction shall be applied to the
conduct. An attorney shall not be subject to the discipline if the
attorney’s conduct conforms to the rules of a jurisdiction in which the
attorney reasonably believes the predominant effect of the attorney’s
conduct will occur.
(Emphasis added). Under the plain language of the rule, the rule specifically contemplates
that one set of professional rules should apply to a particular act or acts of conduct. The
reasons for the Rule are described in the comments.12 Comment 2 explains that “[a]n
attorney may be potentially subject to more than one set of rules of professional conduct
that impose different obligations.” Maryland Rule 8.5, cmt. 2. The choice of law
provisions established by Rule 8.5(b) recognize that “[t]he attorney may be licensed to
practice in more than one jurisdiction with differing rules, or may be admitted to practice
before a particular court with rules that differ from those of the jurisdiction or jurisdictions
in which the attorney is licensed to practice. Additionally, the attorney’s conduct may
involve significant contacts with more than one jurisdiction.” Id.
Comment 3 explains that subsection (b) “seeks to resolve such potential conflicts”
in the professional conduct rules between the jurisdictions based upon the “premise . . . that
minimizing conflicts between rules, as well as uncertainty about which rules are applicable,
12
As we pointed out in Attorney Grievance Comm’n v. Tatung, 476 Md. 45, 75
(2021), our Rule 8.5(b) and our comments to our rule are “substantially similar” to ABA
Model Rule 8.5(b), as well as the ABA comments to that rule.
20
is in the best interest of both clients and the profession (as well as the bodies having
authority to regulate the profession).” Accordingly, subsection (b)
takes the approach of (i) providing that any particular conduct of an attorney
shall be subject to only one set of rules of professional conduct, (ii) making
the determination of which set of rules applies to particular conduct as
straightforward as possible, consistent with recognition of appropriate
regulatory interests of relevant jurisdictions, and (iii) providing protection
from discipline for attorneys who act reasonably in the face of uncertainty.
Maryland Rule 8.5, cmt. 3 (emphasis added). The overarching principle behind Maryland
Rule 8.5(b) is to ensure the consistent application of one set of ethics rules where the
misconduct is potentially subject to two sets of rules. To that end, comment 6 states:
If two admitting jurisdictions were to proceed against attorney [sic] for the
same conduct, they should, applying this Rule, identify the same governing
ethics rules. They should take all appropriate steps to see that they do apply
the same rule to the same conduct, and in all events should avoid proceeding
against an attorney on the basis of two inconsistent rules.
In this case, it was appropriate for Bar Counsel to file charges under the D.C. Rules,
and for the hearing judge to apply the same, given that the predominant effect of Mr.
Bonner’s misconduct occurred in the District of Columbia. However, given Bar Counsel’s
filing of charges under the D.C. Rules (albeit pleaded “in the alternative” to the Maryland
Rules), and the hearing judge’s correct application of those rules, it was unnecessary for
the hearing judge to also render legal conclusions under the corresponding Maryland Rule
based upon the same underlying misconduct. The comments to the Rules expressly
contemplate that only one set of ethics rules will apply to particular acts of misconduct.
Where particular misconduct is identified and charged, the conduct should be subject to
the application of only one set of professional rules. To hold otherwise would be to create
21
situations where more than two sets of rules apply to the same discrete acts of misconduct,
and with potentially inconsistent results, particularly where the professional rules are not
identical. Indeed, the charges filed “in the alternative” by Bar Counsel in this case—under
D.C. Rule 8.4(d) and Maryland Rule 8.4(d)—highlight this very point. Maryland Rule
8.4(d) appears to be a watered-down version of D.C. Rule 8.4(d). Compare Maryland Rule
8.4(d) (“[i]t is professional misconduct for an attorney to: [] engage in conduct that is
prejudicial to the administration of justice[]”) with D.C. Rule 8.4(d) (“[i]t is professional
misconduct for a lawyer to: [] engage in conduct that seriously interferes with the
administration of justice[]”). (Emphasis added). Bar Counsel withdrew its charge under
D.C. Rule 8.4(d) presumably because it is not identical to Maryland Rule 8.4(d) as far as
the nature and degree of misconduct required to prove a violation. Having withdrawn the
charge under D.C. Rule 8.4(d), Bar Counsel asserts that the hearing judge erred by failing
to render legal conclusions concerning Maryland Rule 8.4(d). To permit Bar Counsel to
charge, and a hearing judge to apply, in a mix and match fashion, two sets of professional
rules to the same acts of misconduct is inconsistent with the plain language and purpose of
Maryland Rule 8.5(b)—which is to apply one set of professional rules to particular
misconduct.13 Having correctly determined that the D.C. Rules applied to Mr. Bonner’s
13
In support of its argument that the hearing judge erred in failing to make legal
conclusions pertaining to the violations of the Maryland Rules, Bar Counsel cites to
Maryland Rule 19-727(e), which provides that the hearing judge is required to “prepare
and file a written statement which shall contain [] findings of fact and conclusion of law as
to each charge.” Although Bar Counsel correctly cites to the legal rule concerning the
hearing judge’s obligation, that rule must be read consistently with the choice of law
provisions contained in Maryland Rule 8.5(b), which requires that one set of professional
rules apply to the misconduct alleged. It would be inconsistent with the plain language of
22
acts of misconduct, the hearing judge did not err in failing to make conclusions of law
pertaining to the same acts of misconduct under the corresponding Maryland Rules.
2. Mr. Bonner’s Legal Argument that this Court Should Apply D.C. Sanctions
Jurisprudence
We next turn to Mr. Bonner’s legal argument that arises from the application of the
choice of law provisions set forth in Maryland Rule 8.5(b). Mr. Bonner argues that,
because the D.C. Rules applied to the misconduct, this Court should similarly apply the
District of Columbia’s case law when fashioning an appropriate sanction. Although Mr.
Bonner admits that there is no case law that supports his position,14 he directs us to
Maryland Rule 8.5(b) and points out that the express goal of the choice of law rules is to
“ensure a single set of applicable rules, minimizing uncertainty for both courts and
attorneys and providing the latter with sufficient notice of their ethics obligations.”
According to Mr. Bonner, “it makes little sense to apply a foreign jurisdiction’s rules on
the choice of law provisions contained in Maryland Rule 8.5(b) for the hearing judge to
apply the D.C. Rules and the Maryland Rules to the same underlying misconduct. To be
sure, if a petition involves charges involving separate acts of misconduct, each separate act
of misconduct may involve the application of a separate set of professional rules. For
example, in Tatung, we applied the federal professional immigration rules to the attorney’s
conduct arising from his representation of clients in federal immigration proceedings and
applied the Maryland Rules to separate allegations of misconduct arising from the
disciplinary proceeding itself. See Tatung, 476 Md. at 92–93. It was appropriate in Tatung
to apply the Maryland Rules to the separate acts of alleged misconduct related to the
Maryland disciplinary proceeding. In disciplinary matters arising under Maryland Rule
8.5(b), Bar Counsel should identify the discrete act or acts of misconduct and apply one set
of professional rules to the particular act or acts of misconduct.
14
At oral argument, in response to questions from the Court concerning whether
Maryland Rule 8.5(b) requires the Court to apply another jurisdiction’s sanctions
jurisprudence, counsel for Mr. Bonner admitted that “we haven’t found any cases that
squarely address this question in Maryland or elsewhere.”
23
liability, only to then revert to Maryland’s rules on sanction.” For the reasons outlined
below, we disagree with Mr. Bonner’s analysis of Maryland Rule 8.5(b). We do not find
any support for his argument in the plain language of the rule or our case law.
Although the Commission correctly charged Mr. Bonner under the D.C. Rules,
and the hearing judge correctly applied them, it does not follow that we apply the
sanctions jurisprudence of the District of Columbia. The plain language of Maryland
Rule 8.5(b) specifically addresses the “rule of professional conduct to be applied” when
the conduct in question may be subject to more than one set of professional rules. The
rules of conduct identify the conduct that is and is not permitted. Once a rule violation
is found to have occurred, we consider the imposition of sanctions based upon the
aggravating and mitigating factors proven and our case law. The professional rules do
not address sanctions, rather, that body of law has been developed and applied through
our case law. There is nothing in the plain language of Maryland Rule 8.5, its comments,
or our case law, that requires or even hints at a suggestion that we would apply the District
of Columbia’s sanction jurisprudence when devising the appropriate sanction for the
misconduct. And as we explain below, there is good reason for the absence of such a
suggestion.
This Court’s Original Jurisdiction and Duty to Uphold the
Purpose of Maryland Sanctions
“The Court of Appeals has original jurisdiction over attorney discipline matters.”
Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 544 (2014). Although we “refer
petitions for disciplinary actions to a circuit court judge to act as our hearing officer, for
24
that judge to receive evidence and thereafter present to the Court findings of fact and
recommended conclusions of law,” this Court retains complete jurisdiction over the matter,
including the sanction to be imposed. Id. at 545.
In Maryland, the “chief purpose of the sanction is to protect the public.” Id. at 556.
We have explained that it is our duty to ensure that the purpose underlying the imposition
of sanctions is properly served. Attorney Grievance Comm’n v. Weiss, 389 Md. 531, 548
(2005). In upholding that duty,
we have recognized that the public interest is served when this Court imposes
a sanction which demonstrates to members of the legal profession the type
of conduct that will not be tolerated. Moreover, such a sanction represents
the fulfillment by this Court of its responsibility to insist upon the
maintenance of the integrity of the bar and to prevent the transgression of an
individual lawyer from bringing its image into disrepute. Therefore, the
public interest is served when sanctions designed to effect general and
specific deterrence are imposed on an attorney who violates the disciplinary
rules.
Id. at 548 (cleaned up). Our duty with respect to upholding the purpose underlying the
imposition of sanctions is paramount and is reflected in our approach to sanctions in
reciprocal discipline cases. Although this is not a reciprocal discipline case (and therefore,
in our view, we have even less justification to apply the sanctions jurisprudence of another
jurisdiction), our approach to sanctions in such cases illustrates the importance that we
place on the independent exercise of our duty.
In reciprocal discipline cases, “we have held that, ordinarily, when the purpose for
the discipline in the original jurisdiction is congruent with ours, we follow the original
jurisdiction’s sanction.” Id. at 547 (emphasis in original). In Weiss, we noted that:
25
“When the Court considers the appropriate sanction in a case 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.”
Id. at 548 (quoting Attorney Grievance Comm’n v. Parsons, 310 Md. 132, 142 (1987)).
We observed that “[t]his standard is in agreement with our duty to protect the public, gives
appropriate deference to our sister jurisdictions and ensures that every member of the
Maryland Bar is subject to the same sanctions for similar conduct.” Id. at 548. We noted
that “[i]n reciprocal discipline cases where we impose the original jurisdiction’s sanction,
we usually find that the same discipline would be given in Maryland.” Id. at 549. After
conducting a survey of some reciprocal discipline cases, we pointed out that, “[a]s these
cases illustrate, although we usually do not deviate from the original jurisdiction’s sanction,
we will do so when the conduct involved is of such nature that it would not be tolerated
from any member of the Bar in this State if the conduct occurred here.” Id. at 552.
Our professional rules governing reciprocal discipline incorporate the potentially
competing objectives of giving deference to a sister jurisdiction, but also ensuring that
members of the Maryland Bar are subject to the same sanctions for similar conduct. See
Md. Rule 19-737(e) (“Reciprocal discipline shall not be ordered if Bar Counsel or the
attorney demonstrates by clear and convincing evidence that . . . (4) the conduct established
. . . warrants substantially different discipline in this State.”). When we have determined
that the sanction imposed in the original jurisdiction was not in line with our sanction
jurisprudence, we have not hesitated to impose a greater sanction. See, e.g., Attorney
Grievance Comm’n v. Vanderslice, 435 Md. 295 (2013) (declining to impose reciprocal
26
discipline of a one-year suspension, in favor of disbarment, for an attorney who
misappropriated funds from the law firm, in which he was a partner, on eight separate
occasions over a ten-month span, totaling $1,780); Attorney Grievance Comm’n v. Zodrow,
419 Md. 286, 302 (2011) (determining that disbarment was the proper sanction in a
reciprocal action, even though the Colorado Supreme Court only imposed a one year and
one day suspension, because the “purpose of [Md. Rule 19-737(e)] is to ensure that all
attorneys of this Bar are subject to similar sanctions for similar misconduct, regardless of
whether the misconduct takes place in this State or another jurisdiction[]”).
Here, we are not imposing reciprocal discipline. Rather, we are exercising our
original jurisdiction pursuant to charges filed by the Commission and imposing a sanction
based upon findings of fact and legal conclusions made by the hearing judge appointed by
this Court. The hearing judge correctly applied D.C. Rule 8.4 (a), (b), and (c) to the
underlying conduct, which ensures the uniform application of charges consistent with the
purpose and objective of Maryland Rule 8.5(b). However, nothing in our rules or our case
law suggests that we would apply the sanctions jurisprudence of another jurisdiction when
considering the appropriate sanction to impose upon Mr. Bonner, who is an attorney
licensed in this State.
We also observe that, when other states have applied the professional rules of
another state in disciplinary proceedings pursuant to their choice of law rules that are
similar or identical to ABA Model Rule 8.5(b), the state applied its own case law when
considering the appropriate sanction. See, e.g., In re Vega, 241 So.3d 993 (La. 2018)
(Louisiana Supreme Court applying Texas ethics rules where the Louisiana lawyer’s
27
conduct occurred in Texas, but discussing Louisiana case law in connection with the
imposition of the sanction of disbarment); In re Lyons, 780 N.W.2d 629 (Minn. 2010)
(Minnesota disciplinary proceeding applying Montana ethics rules to misconduct in
connection with federal litigation in Montana, but applying Minnesota case law in
connection with aggravating and mitigating circumstances and the imposition of
sanctions); In re Overboe, 745 N.W.2d 852 (Minn. 2008) (Minnesota Supreme Court
applying North Dakota ethics rules for violations involving a trust account where the
attorney practiced and had bank accounts, but applying Minnesota case law in connection
with the imposition of the sanction); In re Ponds, 888 A.2d 234 (D.C. 2005) (District of
Columbia disciplinary proceeding applying the Maryland professional rules of conduct
where the attorney’s misconduct occurred in a Maryland case, but applying District of
Columbia case law in determining the appropriate sanction).
We will not apply the case law of another jurisdiction when imposing a sanction for
misconduct by a Maryland attorney. Such a notion is inconsistent with our paramount duty
to protect the public when considering a sanction and could lead to less-than-uniform
sanctions being imposed on Maryland attorneys who engage in similar misconduct. In
other words, we will not impose a less severe sanction upon a Maryland attorney simply
because the attorney engaged in a pattern of deceit and misappropriation in the District of
Columbia instead of in Maryland.
Having determined that we will apply our case law where the choice of law
provisions of Maryland Rule 8.5(b) require the application the professional rules of another
jurisdiction, we address the appropriate sanction for Mr. Bonner’s misconduct in this case.
28
IV
Sanction
Turning to sanctions, Bar Counsel recommends that Mr. Bonner be disbarred, citing
to our well-established principle that disbarment is warranted where the attorney engages
in intentional misconduct involving misappropriation of funds. Mr. Bonner asserts that,
given the significant mitigating factors that the hearing judge found in this case, he should
be suspended. Assuming that we reject Mr. Bonner’s argument that this Court should apply
District of Columbia case law when determining the appropriate sanction,15 Mr. Bonner
suggests that under Maryland case law, an indefinite suspension with the right to reapply
for reinstatement after one year is consistent with the sanctions that we have imposed in
similar cases.
We have previously commented that “determining the appropriate sanction requires
this Court to consider the facts and circumstances of each particular case, including
consideration of any mitigating factors.” Attorney Grievance Comm’n v. Miller, 467 Md.
176, 223 (2020) (internal quotations omitted). “It is well-established that the purpose of
sanctions is not to punish the attorney.” Attorney Grievance Comm’n v. Keating, 471 Md.
614, 651 (2020). “Sanctions are also designed to effect general and specific deterrence.”
Attorney Grievance Comm’n v. Shapiro, 441 Md. 367, 395 (2015). “Our guiding principle
15
In his written pleadings and oral arguments before this Court, Mr. Bonner relied
upon disciplinary cases from the District of Columbia to support a suspension ranging from
60 days to six months. Given that we have determined that it is appropriate to apply our
case law, we will not consider whether the District of Columbia Court would impose a less
severe sanction.
29
in determining sanctions for ethical violations is our interest in protecting the public and
the public’s confidence in the legal profession.” Attorney Grievance Comm’n v.
McDonald, 437 Md. 1, 45 (2014) (internal citation omitted). “We look not to the number
of rules broken, but to the lawyer’s conduct.” Thomas, 440 Md. at 556. Or stated
otherwise, when deciding the proper sanction for an errant attorney’s conduct, “we do not
simply tote up the number of possible violations and aggravating factors to arrive at an
appropriate sanction.” Attorney Grievance Comm’n v. Ndi, 459 Md. 42, 65 (2018). As we
always do, we consider the aggravating and mitigating factors found by the hearing judge
and address any exceptions thereto.
Aggravating Factors
“Aggravating factors are essentially the antithesis of mitigating factors and militate
in favor of a more severe sanction.” Miller, 467 Md. at 233 (internal quotations omitted).
When fashioning a sanction, we consult the aggravating factors articulated in Standard 9.22
of the ABA Standards for Imposing Sanctions.16
16
We have recognized the following aggravating factors when considering the
imposition of sanctions:
(1) prior attorney discipline; (2) a dishonest or selfish motive; (3) a pattern
of misconduct; (4) multiple violations of the [MARPC]; (5) bad faith
obstruction of the attorney discipline proceeding by intentionally failing to
comply with the Maryland Rules or orders of this Court or the hearing judge;
(6) submission of false evidence, false statements, or other deceptive
practices during the attorney discipline proceeding; (7) a refusal to
acknowledge the misconduct’s wrongful nature; (8) the victim’s
vulnerability; (9) substantial experience in the practice of law; (10)
indifference to making restitution or rectifying the misconduct’s
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
30
The hearing judge found four aggravating factors that applied to Mr. Bonner’s
conduct: (i) dishonest or selfish motive; (ii) pattern of misconduct; (iii) illegal conduct; and
(iv) substantial experience in the practice of law. Bar Counsel has not excepted to any of
the hearing judge’s conclusions concerning aggravating factors. Mr. Bonner excepts to the
hearing judge’s conclusion with respect to one aggravating factor—his substantial
experience in the practice of law. Concerning this factor, the hearing judge noted that “Mr.
Bonner practiced civil litigation, including insurance defense work, for nearly 40 years.”
Mr. Bonner asserts that the hearing judge erred in finding this aggravating factor because
he contends that this Court only considers substantial experience in the law as an
aggravating factor when the misconduct pertains to the practice of law. We disagree with
Mr. Bonner on this point and overrule his exception. As a seasoned lawyer in the Firm that
Mr. Bonner helped establish, he knew that misappropriating funds for personal use and
creating a false paper trail of emails, false time and calendar entries, and notations on
receipts was wrong. After his misappropriation of funds was discovered in 2012 in
connection with the Bermuda trip, he resumed his misconduct in 2015, which lasted until
it was discovered was once again in 2019. That Mr. Bonner stole from and lied to his
partners in connection with the practice of law, as opposed to clients, is of no moment. We
decline to carve out an exception to the presence of this aggravating factor because Mr.
Bonner’s misconduct involved deceit and misappropriation that affected his law partners
Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 275 (2018) (citation omitted).
31
instead of clients. See, e.g., Attorney Grievance Comm’n v. Levin, 438 Md. 211 (2014)
(upholding substantial experience in the law as an aggravating factor where the attorney
violated Maryland Rule 8.4 (a), (b), (c) and (d) by misrepresenting his caseload to his law
firm and creating fictitious clients and paperwork in an effort to obtain more money from
the firm than he was otherwise entitled to receive).
Mitigating Factors
In attorney grievance proceedings, this Court considers several mitigating factors
based upon ABA Standard 9.32.17 The hearing judge found the following eight mitigating
factors in this case: no prior discipline; imposition of other penalties/sanctions or
significant consequences; restitution; cooperation with and disclosure to Bar Counsel;
17
This Court has recognized the following mitigating factors when considering the
imposition of sanctions:
(1) the absence of prior attorney discipline; (2) the absence of a dishonest or
selfish motive; (3) personal or emotional problems; (4) timely good faith
efforts to make restitution or to rectify the misconduct’s consequences; (5)
full and free disclosure to the Commission or a cooperative attitude toward
the attorney discipline proceeding; (6) inexperience in the practice of law;
(7) character or reputation; (8) a physical disability; (9) a mental disability or
chemical dependency, including alcoholism or drug abuse, where: (a) there
is medical evidence that the lawyer is affected by a chemical dependency or
mental disability, (b) the chemical dependency or mental disability caused
the misconduct, (c) the lawyer’s recovery from the chemical dependency or
mental disability is demonstrated by a meaningful and sustained period of
successful rehabilitation, and (d) the recovery arrested the misconduct, and
the misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the [MARPC]; and (14) unlikelihood
of repetition of the misconduct.
Sperling, 459 Md. at 277–78 (citation omitted).
32
character or reputation; remorse; unlikelihood of repetition; and emotional problems. Bar
Counsel excepts to five of these eight factors: imposition of other penalties or sanctions;
timely good faith efforts to make restitution; remorse; and personal or emotional problems.
We address Bar Counsel’s exceptions as we consider each factor.
1. No Prior Discipline
It is undisputed that, over the course of his nearly 40-year legal career, Mr. Bonner
was never the subject of attorney discipline and has never been sanctioned by a court.
2. Imposition of Other Penalties/Sanctions or Significant Consequences
The hearing judge found that Mr. Bonner had proven the “imposition of other
penalties/sanctions or significant consequences.” The hearing judge explained that Mr.
Bonner’s “reputation has been tarnished; he is unemployed; he has lost his ownership
interest in the Firm which bore his name and which he co-founded; and he will face
disciplinary consequences in the District of Columbia.” In its exceptions, Bar Counsel
asserts that the “facts as found by the hearing judge are not recognized mitigation but are
merely the natural consequences of [Mr. Bonner’s] scheme to defraud his law partners and
law firm over a period of years.” We agree with Bar Counsel and sustain the exception to
the presence of this mitigating factor.
In Attorney Grievance Commission v. Spery, 371 Md. 560 (2002), we determined
that an attorney’s misappropriation of funds from a real estate partnership warranted
disbarment. In arguing for a lesser sanction, the respondent urged us to consider, as a
mitigating factor, the fact that his partners undertook an illegal blackmail scheme to recover
the funds. Id. at 571. The respondent argued that these “exorbitant payments” exacted by
33
blackmail constituted the “imposition of other penalties or sanctions” under ABA Standard
9.32(k). We noted that we “have not had an occasion to discuss the application of this
factor” and observed that, in jurisdictions that had considered it, courts had limited its
application to circumstances where the “sanctions were disciplinary or punishment in
nature.” Id. (citations omitted). We rejected the respondent’s argument, concluding that
the financial ramifications of the partners’ separate misconduct did not constitute a
mitigating factor in the attorney’s disciplinary case for misappropriation. In Levin, 438
Md. at 221–22, we rejected respondent’s argument that his embarrassment and fear for his
reputation should be considered as mitigation where the respondent misrepresented his
caseload and created fictitious clients and paperwork in order to receive more money from
his law firm.
We similarly reject consideration of these types of facts as mitigation here. In many
instances, an attorney’s misconduct—particularly where theft and deceit are involved—is
certain to cause significant, natural consequences beyond those related to the disciplinary
proceeding. Indeed, it is often the case that more egregious misconduct leads to more
serious consequences, such as the termination of employment or loss of a reputation. We
will not recognize the natural consequences of intentional misconduct as constituting a
mitigating factor that would militate against the imposition of a more serious sanction. To
do so could potentially create an illogical “seesaw” effect—where more egregious
misconduct that results in greater adverse natural consequences leads to a reduced sanction
because we consider the adverse consequences as a mitigating factor.
3. Restitution
34
The hearing judge found that Mr. Bonner made timely good faith efforts to make
restitution and to rectify the consequences of his actions. The hearing judge noted that Mr.
Bonner made complete restitution to the Firm with respect to the misappropriated funds
involved in both the 2012 and 2015–2019 misconduct. Although restitution was not made
until after Mr. Bonner’s conduct was exposed, the hearing judge concluded that it was
nonetheless promptly made.
Bar Counsel excepts to this mitigating factor and relies upon Attorney Grievance
Commission v. Miller, 467 Md. 176 (2020) and Attorney Grievance Commission v. Frank,
470 Md. 699 (2020). We overrule Bar Counsel’s exception. We disagree with Bar Counsel
that Miller and Frank provide support for a rejection of restitution as a mitigating factor in
this case. In Miller, the attorney argued that she made timely good faith efforts to make
restitution because she apologized to the client numerous times and eventually returned the
client’s money. 467 Md. at 225. We concluded that the refund did not constitute good
faith efforts to make restitution because the refund “came long after [the attorney’s] dispute
with [the client] and after [the client] had filed her complaint with Bar Counsel.” Id. In
Frank, the hearing judge found that the respondent provided restitution “only as a result
of” Bar Counsel’s investigation. 470 Md. at 730. To be sure, Mr. Bonner did not make
restitution until after his misconduct was discovered. However, Mr. Bonner promptly
repaid the $3,070.11 in 2012 after he was confronted and repaid the Firm $35,000 for his
subsequent misconduct. With respect to the 2012 repayment, he repaid the funds even
though there was no implication that the Firm would report his conduct. The restitution
for his subsequent misconduct occurred before Bar Counsel initiated its investigation.
35
Concerning the second payment, Mr. Bonner repaid the Firm significantly more than the
amounts that he misappropriated—he paid the actual expenses and the cost of the Firm’s
investigation in the matter. We determine that the hearing judge did not err in concluding
that Mr. Bonner established this mitigating factor.
4. Remorse
The hearing judge noted that, although “Mr. Bonner may not have been genuinely
remorseful after the first incident of misconduct in 2012 or when he was engaging in his
later incidents of misconduct, he has since accepted responsibility for his actions[.]” The
hearing judge determined that Mr. Bonner met his burden and demonstrated by a
preponderance of the evidence that he was remorseful for his actions. The hearing judge
commented that Mr. Bonner “testified credibly about his regret in disappointing his
colleagues and losing their trust, causing shame to his family and friends, and failing in his
efforts to be a role model for his children.” The hearing judge also credited the testimony
of three of Mr. Bonner’s former law partners, Chris Hassell, Michael Hicks, and Joseph
Crociata, who testified about their perception of Mr. Bonner’s remorse.
Bar Counsel excepted to the hearing judge’s finding of remorse and argues that Mr.
Bonner’s expressions of remorse are insincere. Bar Counsel points out that during the
hearing in this matter, Mr. Bonner admitted on cross-examination that, while he knew his
conduct was improper, he did not feel any remorse between 2015, when he again began
misappropriating funds from the Firm, and November 2019, when he was confronted by
his partners. Bar Counsel also refers us to the testimony of Mr. Bonner’s expert witness,
Dr. Binks, who testified on cross-examination that Mr. Bonner did not feel significant
36
remorse about his misconduct in 2012 or between 2015 and 2019, and it was not until
sometime after he was caught and left the Firm that he began to feel remorse.
Based upon our review of the record, we overrule Bar Counsel’s exception. The
hearing judge credited Mr. Bonner’s testimony, as well as Mr. Hassell’s and Mr. Hicks’s
testimony concerning Mr. Bonner’s remorse. These are credibility determinations within
the purview of the hearing judge. See Md. Rule 19-740(b)(2)(B) (this Court gives “due
regard to the opportunity of the hearing judge to assess the credibility of witnesses[]”). We
will not substitute our judgment for the judgment of the hearing judge with regard to
credibility determinations.
5. Cooperation with and Disclosure to Bar Counsel
The hearing judge found that Mr. Bonner “provided full and free disclosure to Bar
Counsel and demonstrated a cooperative attitude toward the attorney discipline
proceedings.” Bar Counsel acknowledged the existence of this mitigating factor.
6. Character or Reputation
In his Findings of Fact and Conclusions of Law, the hearing judge commented
extensively on the testimony concerning Mr. Bonner’s character and reputation in the
community. The hearing judge stated that Mr. Bonner was “highly regarded within the
profession.” The hearing judge noted that Mr. Bonner was named the 2016 Lawyer of the
Year by the DCDLA. The hearing judge credited the testimony of several witnesses who
described Mr. Bonner’s good character. Mr. Hicks, one of Mr. Bonner’s former law
partners, described Mr. Bonner’s character as “impeccable,” and someone who was always
there for people at the Firm. John Youmans, a neighbor and good friend, described Mr.
37
Bonner as “one of the more upstanding people I’ve ever known” and “the epitome of
somebody who would give [you the] shirt off [his] back.” Mr. McGavick noted that,
although “we are in a room because a flaw emerged, [] I have never [personally] observed
a flaw in Keith’s character. I hold him in the utmost respect and trust and always have.”
Another former partner, Joseph Crociata, described how, upon the death of his father, he
went to Mr. Bonner’s office and was touched by “the sympathy [Mr. Bonner] showed me
and the way he received me on what was probably the most difficult day of my life.” The
hearing judge stated that “[t]he conclusion drawn from the testimony of these witnesses is
that Mr. Bonner is a man who is always willing to help when others are having problems.
[] Each witness was aware of Mr. Bonner’s misconduct and testified that it did not affect
their view of his character.” The hearing judge found “by a preponderance of the evidence
that Mr. Bonner’s professional reputation and character generally, including the traits of
kindness, generosity,[18] empathy and compassion, should be and are a mitigating factor.”
Upon our independent review of the record, we agree with the hearing judge’s assessment
of Mr. Bonner’s professional reputation and character.
18
Concerning Mr. Bonner’s generosity, the hearing judge commented on the
community service that Mr. Bonner has performed during the COVID-19 pandemic,
including looking after elderly neighbors who needed assistance due to significant health
issues. The hearing judge also pointed out that Mr. Bonner has spent a substantial amount
of his free time since his departure from the Firm volunteering at Martha’s Table, a
nonprofit organization that provides food to those in need. The hearing judge noted that
Mr. Bonner was recognized as one of the “top 20 volunteers of 2020,” through his
performance of nearly 200 hours of community service.
38
7. Unlikelihood of Repetition
The hearing judge found that, because Mr. Bonner is 67 years old, unlikely to ever
practice law again, and has meaningfully participated in counselling, he is unlikely to
repeat this misconduct. The hearing judge commented on Mr. Bonner’s counseling with
Denise Perme, the Associate Director of the District of Columbia Lawyer Assistance
Program who has helped “Mr. Bonner learn how to deal with his anger and [] accept that
he cannot change other people.” The hearing judge credited Ms. Perme’s testimony that
Mr. Bonner has “‘made enormous strides’ in allowing people to be different and
understanding that, if he is emotionally troubled by something, he needs to change his own
situation.” The hearing judge also referred to Dr. Binks’s expert opinion that Mr. Bonner’s
behavior was “unique to a set of circumstances that are unlikely to be repeated both because
of their uniqueness and because of who he is, a different man now than he once was.” Bar
Counsel did not file exceptions to the hearing judge’s finding on this mitigating factor.
Upon our independent review of the record, we agree with the hearing judge’s assessment
that Mr. Bonner is unlikely to repeat this behavior in the future.
8. Emotional Problems
This brings us to the final mitigating factor found by the hearing judge—the
presence of emotional problems. The hearing judge found that, although Mr. Bonner’s
“emotional problems in no way justify [his] actions, they at least provide some insight into
why he acted as he did, and the Court finds that his emotional problems are properly
considered in mitigation.” In support of this finding, the hearing judge commented on the
testimony provided by Ms. Perme and Dr. Binks
39
related to [Mr. Bonner’s] emotional issues and the causal connection between
those issues and Mr. Bonner’s conduct, i.e., that his conduct arose from the
dynamics of his experience at the Firm and emotional distress that resulted
therefrom. Ms. Perme observed that Mr. Bonner “allowed his experience at
the firm and with his partners to influence his perspective and his behavior
to the point where he developed a pattern of misconduct.” In Ms. Perme’s
opinion, “his misconduct was fueled by a level of resentment that he was not
dealing with effectively at the time.” Dr. Binks described Mr. Bonner’s
conduct as “situational—unique to a set for circumstances” related to both
the dynamics at the Firm and to Mr. Bonner’s underdeveloped emotional
awareness. According to Dr. Binks, Mr. Bonner ultimately “consciously and
unconsciously took matters into his own hands and inappropriately
reimbursed himself of expenses unrelated to firm business.”
(Cleaned up) (footnote omitted). The hearing judge also credited Mr. Bonner’s testimony
that he experienced frustration and anger that he could not control to the point that, at times,
he had to leave the office, fearing that he might “stroke out.” The hearing judge noted that
Mr. Bonner testified to being so upset at times that “he couldn’t even sleep and couldn’t
even eat.” (Cleaned up). Based upon this evidence, the hearing judge found that “[a]
preponderance of the evidence supports a finding that Mr. Bonner was experiencing
significant emotional problems during the time of his misconduct, and that his misconduct
was related thereto[.]” The hearing judge found this to be a mitigating factor.
Bar Counsel excepts to the hearing judge’s finding of a mitigating factor, and
relies upon Attorney Grievance Commission v. Vanderlinde, 364 Md. 376 (2001) and
Weiss, 389 Md. 531, in which this Court rejected the attorneys’ emotional and personal
problems as constituting mitigating factors. Bar Counsel asserts that Mr. Bonner’s case
for personal or emotional problems is much weaker than the cases presented in
Vanderlinde and Weiss, and contends that “[b]eing angry, feeling isolated, and feeling
that others are not billing enough hours do not, in any instance, justify, mitigate, or
40
explain a years-long scheme of knowing and intentional misrepresentation accompanied
by numerous misrepresentations.” Bar Counsel points out that Dr. Binks testified that Mr.
Bonner had become “self-righteous and entitled” and that he felt “justified” in engaging in
intentional misconduct because Mr. Bonner felt that “he wasn’t getting his due in financial
compensation from the other partners based on the amount of work he was doing[.]” Bar
Counsel contends that Dr. Binks’s diagnosis of “Adjustment Disorder with Anxiety” is
“related to the after-effects of his misconduct, including the loss of his career and the
anxiety associated with disciplinary proceedings.” In further support of Bar Counsel’s
position that any anxiety suffered by Mr. Bonner relates to the consequences arising from
his misconduct being discovered rather than a cause of the misbehavior, Bar Counsel
directs us to Dr. Binks’s testimony that Mr. Bonner has “developed significant anxiety
symptoms” and that a “positive outcome of his [disciplinary] case would go a long way to
ameliorate his symptoms.” Bar Counsel points out that there is no evidence that Mr.
Bonner was suffering from any mental health disorder during the period of misconduct and
argues that Mr. Bonner’s feelings of self-righteousness and entitlement do not constitute
mitigation. According to Bar Counsel, Mr. Bonner’s “anxiety in facing the natural
consequences of his illegal and dishonest conduct similarly does not constitute mitigation.”
Mr. Bonner argues that he has established “more mitigation” than the respondents
in Vanderlinde and Weiss, and that the mitigation he has established “meets the compelling
circumstances standard” established in Vanderlinde, which we describe in more detail
below. Mr. Bonner relies on Attorney Grievance Commission v. Brigerman, 441 Md. 23,
43 (2014)—a case in which this Court found the respondent’s divorce and custody
41
proceeding created “personal problems” which constituted a mitigating factor where the
underlying misconduct involved intentional dishonesty.
Like many cases involving intentional misconduct such as theft or misappropriation,
we start our discussion with the Vanderlinde case. In that case, the attorney was found to
have misappropriated $3,880.67 from her employer over a period of time. Vanderlinde,
364 Md. at 381. Like Mr. Bonner here, Ms. Vanderlinde admitted that she had violated
Maryland Rules 8.4 (a), (b) and (c). Id. The evidence was undisputed that Ms. Vanderlinde
had a history of depression, that her marriage was falling apart, her daughter was suffering
from psychological problems, that she had lost her job and was unsuccessful as a real estate
agent, and that she began taking the money because she needed to pay her bills. She argued
that the “pressures of her life” and mental health issues, including periods of depression,
mitigated against disbarment. Id. Similar to attorney disciplinary proceedings where this
Court had considered alcohol and drug problems in respect to mitigation of sanctions, Ms.
Vanderlinde likened her mental condition to an attorney with a drug or alcohol problem.
As such, she argued that “where is there is a finding that the attorney’s conduct is, in whole
or in part, a result of a mental condition that affects her or his actions, the Court should
recognize a new mitigation circumstance that warrants less than a serious sanction.” Id. at
387.
After examining the history of cases involving attorneys who were attempting to
use drug or alcohol abuse to mitigate their sanction in disciplinary proceedings, we held:
[I]n cases of intentional dishonesty, misappropriation cases, fraud, stealing,
serious criminal conduct and the like, we will not accept, as ‘compelling
extenuating circumstances,’ anything less than the most serious and utterly
42
debilitating mental or physical health conditions, arising from any source that
is the ‘root cause’ of the misconduct and that also result in an attorney’s utter
inability to conform his or her conduct in accordance with the law and with
the M[A]RPC. Only if the circumstances are that compelling, will we even
consider imposing less than the most severe sanction of disbarment in cases
of stealing, dishonesty, fraudulent conduct, the intentional misappropriation
of funds or other serious criminal conduct, whether occurring in the practice
of law, or otherwise.
Id. at 413–14. We explained that, although we will generally accept a hearing judge’s
findings concerning the existence of certain mental conditions and their effect, it is for this
Court to answer whether “such findings are ‘compelling extenuating circumstances,’
justifying a lesser sanction in cases of dishonesty, deceit, fraud, intentional
misappropriation, stealing, and the like[.]” Id. at 414.
Applying these standards to Ms. Vanderlinde, we concluded that she had not
demonstrated that her mental condition constituted compelling extenuating circumstances.
The evidence demonstrated that, although she had “personal problems, some of which were
severe, there [was] little evidence that she was not able to handle the every day economic
affairs of the life to which she had, in a manner of speaking, descended.” Id. at 415. We
noted that “[h]er mental problems did not affect her ability to be a competent, and, for a
period, successful thief. Her judgment when acting as a thief was appropriate—for a thief.”
Id. We stated that:
Upon reflection as a Court, in disciplinary matters, we will not in the future
attempt to distinguish between degrees of intentional dishonesty based upon
convictions, testimonials or other factors. Unlike matters relating to
competency, diligence and the like, intentional dishonest conduct is closely
entwined with the most important matters of basic character to such a degree
as to make intentional dishonest conduct by a lawyer almost beyond excuse.
Honesty and dishonesty are, or are not, present in an attorney’s character.
43
Id. at 418. We further noted that “[d]isbarment ordinarily should be the sanction for
intentional dishonest conduct.” Id. We explained that, when considering cases in which
an attorney’s misconduct relates to honesty, especially in cases “where there is any type of
theft or intentional misappropriation of funds or other serious criminal conduct,”
there[] needs to be almost conclusive, and essentially uncontroverted
evidence that would support a hearing judge’s finding not only that the
attorney had a serious and debilitating mental condition, but that the mental
condition, in a sustained fashion, affected the ability of the attorney in normal
day to day activities, such that the attorney was unable to accomplish the
least of those activities in a normal fashion. Unless that standard is met[,]
the impairment is not the ‘root cause’ of the misconduct.
Id. at 418–19. Applying these principles to Ms. Vanderlinde, we concluded that disbarment
was the appropriate sanction for her misconduct. Id. at 419.
In the two decades since Vanderlinde, the standards announced in that case have
been considered and discussed in numerous cases. Attorney Grievance Comm’n v. Collins,
___ Md. ____ (filed Feb. 25, 2022). In fact, it is not surprising that our decision in this
case coincides with our decision in Collins, which discusses Vanderlinde and its progeny.
However, as discussed in Collins, our application of the Vanderlinde standard has not been
without exceptions.
In Collins, we conducted a survey of cases in which we have applied the
Vanderlinde standard to impose a sanction of disbarment and described “an increasing
number of cases involving intentional dishonesty in which we have not imposed the
sanction of disbarment.” Collins, slip op. at 35. We will not repeat that analysis here.
However, we make some important observations and pronouncements in Collins that are
worth repeating. First, as noted, given the “long line of cases in which we have not imposed
44
the sanction of disbarment,” which we discuss in detail in Collins, “it is time to expressly
recognize that our holding in Vanderlinde no longer exclusively sets the standard for
imposition of the sanction in cases involving intentional dishonesty.” Id. at 49. Based
upon our survey of cases,
[w]hat can be gleaned from the sanctions imposed in cases involving
intentional dishonesty post-Vanderlinde in recent years, is that, increasingly,
we have not imposed the sanction of disbarment where the dishonest conduct
at issue does not involve theft, fraud, harm to a client or third party, or the
intentional misappropriation of funds. We have on multiple occasions
imposed a sanction less than disbarment in cases involving intentional
dishonest conduct where there was no theft or intentional misappropriation
of funds by the attorney, the attorney had not benefited or profited from the
misconduct, and no client had been harmed. Going forward, it is clear that
cases involving dishonesty and knowingly made false statements will be
assessed on an individual basis to determine whether the misconduct at issue
gives rise to deployment of the standard set forth in Vanderlinde, namely,
whether compelling extenuating circumstances that are the “root cause” of
the misconduct are required to warrant a sanction less than disbarment.
Collins, slip op. at 49–50.
Applying the principles articulated above to Mr. Bonner’s conduct, we first start
with the notion that, in cases involving intentional dishonesty, disbarment is ordinarily
warranted. See Attorney Grievance Comm’n v. Sperling, 432 Md. 471, 497 (2013)
(observing that “the sanction for dishonest conduct is generally disbarment”); Attorney
Grievance Comm’n v. Vlahos, 369 Md. 183, 186 (2002) (holding that disbarment is the
proper sanction when an attorney engages in the misappropriation of funds, regardless of
the source of the money). However, we do not apply this generalization as a bright-line
rule and will look at the individual facts and circumstances of the particular case. See
Attorney Grievance Comm’n v. Lane, 367 Md. 633, 647 (2002) (explaining that “[w]e did
45
not apply Vanderlinde as a bright-line rule,” and explaining our holding in that case as
“‘ordinarily’ disbarment will be the appropriate sanction when dishonesty is involved,
however, we must still examine the facts, circumstances and mitigation in each case[]”);
Attorney Grievance Comm’n v. Palmer, 417 Md. 185, 211 (2010) (explaining that the
Vanderlinde principle, “as clarified in Lane,” is “consistent with the long-chanted mantra
that the appropriate sanction in an attorney-discipline matter ‘depends on the facts and
circumstances of each case[]’”) (citations omitted).
Here, we determine that Mr. Bonner’s intentional dishonest conduct involving
misappropriation does not align itself with the intentional dishonest conduct in cases in
which we have imposed a sanction less than disbarment. As we observed in Collins,
although these “non-disbarment” cases involve intentional dishonest conduct, they have a
common nexus—specifically, there was no theft or intentional misappropriation of funds
by the attorney, and the attorney did not benefit or profit from the misconduct. See, e.g.,
Attorney Grievance Comm’n v. Johnson, 472 Md. 491, 547–48 (2021) (imposing a
sentence of indefinite suspension, with the right to reapply after one year, where an
attorney’s nephew, a non-attorney employee, misappropriated client’s funds from the
attorney trust account, and after discovering the employee’s theft, the attorney acted in a
deceitful manner by “lying to his clients to prolong the time in which he had to remit their
settlement funds[]”); Attorney Grievance Comm’n v. Riely, 471 Md. 458 (2020) (imposing
a sanction of indefinite suspension, with the right to apply for reinstatement no sooner than
one year, where the attorney made a false statement to a government agency at a meeting
during the course of representing a client, misled a client about the efforts made on her
46
behalf in a case, and made false statements to Bar Counsel in a letter about the case);
Keating, 471 Md. 614 (imposing a sanction of indefinite suspension, with the right to apply
in six months, where the attorney submitted a will to the Register of Wills which she falsely
represented that she had witnessed (when in fact she signed the will after her client’s death,
in an effort to carry out her client’s wishes)); Attorney Grievance Comm’n v. Singh, 464
Md. 645 (2019) (imposing a sanction of sixty days’ suspension where the attorney falsely
testified at a deposition during Bar Counsel’s investigation that his practice was to deposit
a client’s filing fees into a trust account instead of his operating account, where the fees
remained until he paid the filing fee); Attorney Grievance Comm’n v. Hecht, 459 Md. 133(2018) (imposing a sanction of indefinite suspension, with the right to petition for
reinstatement after twelve months where the attorney undertook representation of a client
during a period when he was suspended, made misrepresentations to his client about his
suspension, and made misrepresentations to Bar Counsel during the investigation);
Attorney Grievance Comm’n v. Steinhorn, 462 Md. 184 (2018) (imposing a sanction of
indefinite suspension with the right to apply for reinstatement after six months where the
attorney knowingly included false information in complaint forms filed in a trial court by
lumping together an amount of an underlying debt and attorney’s fees and representing the
total as the underlying debt in an effort to conceal that he was collecting attorney’s fees);
Attorney Grievance Comm’n v. Shapiro, 441 Md. 367 (2015) (imposing a sanction of
indefinite suspension where the attorney concealed from a client the status of a malpractice
case for five years and made direct misrepresentations to the client leading her to believe
that the case was active); Brigerman, 441 Md. 23 (imposing a sanction of indefinite
47
suspension where the attorney misrepresented to his client and Bar Counsel that he would
promptly return the client’s file to the client); Sperling, 432 Md. 471 (imposing a sanction
of indefinite suspension where the attorney made material misrepresentations to the trial
court in his representation of clients in an attempt to mislead the court into reopening his
client’s case).19
19
We similarly reject Mr. Bonner’s reliance on Attorney Grievance Comm’n v.
Burghardt, 442 Md. 151 (2015) and Attorney Grievance Comm’n v. Stillwell, 434 Md. 248(2013)—two reciprocal discipline cases involving intentional dishonest conduct where we
imposed a sanction less than disbarment. We determine that these cases are inapposite for
purposes of determining a sanction in this case. In Burghardt, the attorney submitted
requests for reimbursement of expenses to her law firm, which were for personal expenses.
Id. at 156. She intentionally misrepresented that they were business expenses instead of
personal and falsified invoices. After the firm questioned her, she acknowledged her
misconduct, and she was terminated. Id. Although we imposed reciprocal discipline
consisting of suspension, her misconduct spanned only a few months. Here, Mr. Bonner
engaged in misappropriation activities, was caught, expressed remorse, and then resumed
his misconduct for a period spanning several years. In Stillwell, the attorney failed to return
a partial fee payment after the client terminated the attorney’s services. 434 Md. at 257.
We imposed a sanction of indefinite suspension with the right to apply for readmission
after 60 days. Id. at 274. In imposing the sanction of indefinite suspension, we noted that
this case involved charges related to safekeeping of the client’s property but did not involve
“misappropriation or other dishonest conduct.” Id. at 273. Here, Mr. Bonner’s conduct
involved misappropriation and dishonest conduct.
Mr. Bonner also cites to Attorney Grievance Commission v. McCulloch, 397 Md.
674 (2007) as support for a sanction less than disbarment. In McCulloch, the attorney
deposited unearned funds into her operating account, spent the funds before they were
earned, and failed to timely refund unearned fees to the client after the client terminated
the representation. Id. at 681. We imposed a sanction of indefinite suspension. Although
we upheld the violation of Rule 8.4(c), we observed that the hearing judge found that the
attorney’s conduct in spending an unearned portion of the retainer lacked the requisite
criminal intent to constitute theft and noted that the hearing judge’s findings on that issue
were “at best ambiguous, indicating that, at the least, the hearing [judge] had some doubt
as to the level of the respondent’s culpability.” Id. at 689. As such, we determined that
“[d]isbarment should not rest on such a finding.” Id. Here, the misconduct was not related
to one isolated incident, and the record clearly supports a finding of intentional
misappropriation of funds.
48
We conclude that Mr. Bonner’s intentional dishonest conduct involving
misappropriation of funds is of the variety in which we have imposed a sanction of
disbarment. See, e.g., Vanderlinde, 364 Md. 376 (underlying misconduct involved theft of
funds from an employer); Levin, 438 Md. 211 (disbarring attorney who misrepresented his
case load and anticipated fees to his employer by creating fictitious clients and paperwork
in order to obtain additional salary); Vanderslice, 435 Md. 295 (rejecting the imposition of
reciprocal discipline of a one-year suspension in favor of disbarment where the attorney
intentionally committed theft eight times over a period of ten months); Attorney Grievance
Comm’n v. Carithers, 421 Md. 28 (2011) (disbarring attorney for conduct including
misappropriation of attorney’s fees owed to his law firm); Weiss, 389 Md. 531 (declining
to impose reciprocal discipline of suspension, in favor of disbarment, where attorney
misappropriated funds from his law firm in the District of Columbia); Vlahos, 369 Md. 183(disbarment was the appropriate sanction where attorney misappropriated funds belonging
to his law firm over a period of approximately one and one-half years); Spery, 371 Md. 560(disbarment was the appropriate sanction where an attorney misappropriated $47,821.16.
from his real estate partnership over a period of five years and made misrepresentations to
his partners to conceal the theft).
As such, Mr. Bonner’s intentional misconduct involving the misappropriation of
funds “gives rise to deployment of the standard set forth in Vanderlinde, namely whether
compelling extenuating circumstances that are the ‘root cause’ of the misconduct are
required to warrant a sanction less than disbarment.” Collins, slip op. at 50. We further
determine that Mr. Bonner’s emotional problems described by Dr. Binks, Ms. Perme, and
49
Mr. Bonner do not satisfy that standard. Mr. Bonner readily acknowledges he acted out in
anger and frustration over his perception of unfairness in the compensation structure at the
Firm. In his testimony, Mr. Bonner repeatedly used the words “angry” and “frustrated” to
describe his feelings toward some of his partners during the years in which he engaged in
the misappropriation of funds from the Firm. Concerning his perception that other equity
partners were not billing as many hours as him, he testified that he was “really angry.” He
acknowledges that his anger manifested itself through his misappropriation of funds. To
be sure, after his misappropriation was discovered and his relationship with the Firm was
terminated, through counseling, Mr. Bonner appears to have developed some self-
awareness that his misconduct that was driven by his anger was wrong:
I was like [sic] had just started treating myself to make myself feel better and
unfortunately it was the way I coped with it to compensate myself for not
being what [sic] I thought was being properly compensated. And so that’s
how I dealt with things instead of [sic] if I wasn’t going to get paid any more
then I would treat myself to certain things. And it’s crazy, I know it. I know
it sounds crazy but that’s the way I felt.
I mean I was so angry and resentful I can’t even tell you.
Dr. Binks’s testimony is consistent with Mr. Bonner’s description of his feelings and
emotions during this period in which he was engaging in misdeeds. Dr. Binks testified that
Mr. Bonner had become “self-righteous and entitled” and that he felt “justified in engaging
in intentional misconduct” because Mr. Bonner felt that “he wasn’t getting his due in
financial compensation from the other partners based on the amount of work he was
doing[.]”
50
We reject Mr. Bonner’s emotional problems arising from his anger and frustration
over what he perceived to be his inequitable treatment within the Firm’s compensation
structure as constituting a mitigating factor that demonstrates compelling extenuating
circumstances thereby warranting a sanction less than disbarment. At bottom, Mr.
Bonner’s anger and frustration resulted in him taking actions for dishonest and selfish
purposes. Mr. Bonner’s contention that we should consider these emotional problems as a
mitigating factor here employs some circular logic. We consider “dishonest or selfish
motive” as an aggravating factor, which was proven here. We will not cancel out the
presence of this aggravating factor in mitigation simply because the dishonest and selfish
motives were fueled by feelings of anger, frustration, and self-righteousness.
Although we have considered the mitigating factors that Mr. Bonner has proven,
such as his remorse for acting out, his acceptance of responsibility through the repayment
of the misappropriated funds, his full cooperation with Bar Counsel, and his admission in
full of his various misdeeds, as well as the efforts that he has made in counseling to
understand and acknowledge the reasons that he engaged in this misconduct, in addition to
his character and reputation, we conclude that, under the facts and circumstances of this
case, these mitigating factors do not tip the scales in favor of a sanction less than
disbarment. See, e.g., Levin, 438 Md. at 231–32 (disbarment was the appropriate sanction
where the attorney misrepresented his case load and clients in an effort to obtain additional
salary despite the respondent’s recognition of the wrongfulness of his action, his full
payment of the financial debt to the law firm within two months, and his self-reported
misrepresentations to Bar Counsel); Vanderlinde, 364 Md. at 419 (disbarment was the
51
appropriate sanction notwithstanding the fact that the respondent returned the funds before
being caught, freely acknowledged the misappropriation, and despite the presence of
impaired mental faculties, including depression).
In addition to the presence of a dishonest and selfish motive, Mr. Bonner engaged
in a pattern of misconduct that spanned several years. Mr. Bonner knew that his conduct
was wrong. When his misdeeds were discovered in 2012, he had an opportunity to right
the ship. Instead, in 2015, he veered the ship back onto the wrong course and continued to
steer it awry until he hit ground in 2019. His pattern of misconduct involved not simply
misappropriating funds but sometimes engaging in elaborate lies to his partners to cover
his tracks, such as sending emails describing client meetings that never happened and
creating false calendar entries and time sheets.
Considering the nature of Mr. Bonner’s misconduct and the various mitigating and
aggravating factors present here, we conclude that disbarment is the appropriate sanction.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THIS COURT, FOR
WHICH SUM JUDGMENT IS ENTERED
IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION AGAINST
KEITH M. BONNER.
52