Attorney Grievance Commission v. Nusbaum , 436 Md. 609 ( 2014 )

Circuit Court for Baltimore County
Case No. 03-C-11-007238
Argued: February 6, 2012
IN THE COURT OF APPEALS OF
MARYLAND
Misc. Docket AG No. 90
September Term, 2009
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
HARVEY MALCOLM NUSBAUM
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
*Bell,
JJ
Opinion by Bell, C.J. (Retired)
Filed: January 29, 2014
*Bell, C.J., now retired, participated in the hearing
and conference of this case while an active member
of this Court; after being recalled pursuant to the
Constitution, Article IV, Section 3A, he also
participated in the decision and adoption of this
opinion.
The Attorney Grievance Commission of Maryland (“the petitioner”), acting through
Bar Counsel and pursuant to Maryland Rule 16-751 (a),1 filed a Petition for Disciplinary or
Remedial Action against the respondent, Harvey M. Nusbaum. In that petition, the
petitioner alleged that, by pleading guilty to a violation of 15 U.S.C. § 1, the Sherman
Antitrust Act, the respondent admitted to the commission of a “serious crime,” within the
meaning of Maryland Rule 16-771 (b),2 and as defined in Maryland Rule 16-701 (k),3 thereby
1
Maryland Rule 16-751 (a) provides:
“(a) Commencement of disciplinary or remedial action.
“(1) Upon approval of Commission. Upon approval or direction of the
Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial
Action in the Court of Appeals.
“2) Conviction of Crime; Reciprocal Action. If authorized by Rule 16-771
(b) or 16-773 (b), Bar Counsel may file a Petition for Disciplinary or
Remedial Action in the Court of Appeals without prior approval of the
Commission. Bar Counsel promptly shall notify the Commission of the
filing. The Commission on review may direct the withdrawal of a petition
that was filed pursuant to this subsection.”
2
Maryland Rule 16-771 (b) provides:
“( b) Petition in Court of Appeals. Upon receiving and verifying information from
any source that an attorney has been convicted of a serious crime, Bar Counsel
may file a Petition for Disciplinary or Remedial Action in the Court of Appeals
pursuant to Rule 16-751 (a)(2). The petition may be filed whether the conviction
resulted from a plea of guilty, nolo contendere, or a verdict after trial and whether
an appeal or any other post-conviction proceeding is pending. The petition shall
allege the fact of the conviction and include a request that the attorney be
suspended immediately from the practice of law. A certified copy of the judgment
of conviction shall be attached to the petition and shall be prima facie evidence of
the fact that the attorney was convicted of the crime charged.”
3
According to Rule 16-701 (k), “serious crime means a crime that is in at least one of the
following categories: (1) a felony under Maryland law, (2) a crime in another state or under
federal law that would have been a felony under Maryland law had the crime been committed in
Maryland, and (3) a crime under federal law or the law of any state that is punishable by
imprisonment for three years or more.”
violating Rule 8.4 (b), ( c) and ((d), Misconduct,4 of the Maryland Lawyers’ Rules of
Professional Conduct (“MRPC”), as adopted by Maryland Rule 16-812. The petitioner
requested, pursuant to Maryland Rule 16-771 (c),5 which the Court granted, by order dated
August 17, 2010, the immediate suspension of the respondent from the practice of law.
As prescribed by Maryland Rule 16-771 (e)6 , acting pursuant to Maryland Rule 16-
752 (a), we referred the Petition to the Honorable John J. Nagle, III, of the Circuit Court for
4
MRPC 8.4 (b), (c) and (d) provide:
“It is professional misconduct for a lawyer to:
* * * *
“(b) commit a criminal act that reflects adversely on the lawyer’s
honesty, trustworthiness or fitness as a lawyer in other respects
“(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
“(d) engage in conduct that is prejudicial to the administration of
justice[.]”
5
“(c) Temporary Suspension of Attorney. Upon filing of the petition pursuant to section
(b) of this Rule, the Court of Appeals shall issue an order requiring the attorney to show
cause within 15 days from the date of the order why the attorney should not be suspended
immediately from the practice of law until the further order of the Court of Appeals. If,
after consideration of the petition and the answer to the order to show cause, the Court of
Appeals determines that the attorney has been convicted of a serious crime, the Court may
enter an order suspending the attorney from the practice of law until final disposition of
the disciplinary or remedial action. The Court of Appeals shall vacate the order and
terminate the suspension if the conviction is reversed or vacated at any stage of appellate
or collateral review.”
6
Maryland Rule 16-771 (e), as relevant, provides:
“(e) Further Proceedings on Petition. When a petition filed pursuant to
section (b) of this Rule alleges the conviction of a serious crime, the Court
of Appeals may enter an order designating a judge pursuant to Rule 16-752
to hold a hearing in accordance with Rule 16-757.”
2
Baltimore County for the evidentiary hearing required by Maryland Rule 16-757.7 Following
that evidentiary hearing, Judge Nagle made, pursuant to Maryland Rule 16-757 (c),8
Findings of Fact, as follows:
“Respondent was admitted to the Maryland Bar on October 1, 1963.
“On June 16, 2009, Respondent was indicted in the United States
District Court for the District of Maryland, along with co-defendant Jack W.
Stollof, on a charge of engaging in a combination and conspiracy ‘to suppress
and eliminate competition by submitting non-competitive and collusive bids
at certain auctions for tax liens conducted by a municipality and various
counties within the District of Maryland.’ The Indictment charged that the
combination and conspiracy engaged in by the defendants and other co-
conspirators was in unreasonable constraint of trade and commerce in violation
of Section 1 of the federal Sherman Antitrust Act, 15 U. S. C. § 1. Respondent
allegedly submitted the rigged bids described in the Indictment through certain
limited liability companies that he co-owned with Mr. Stollof.
7
Maryland Rule 16-757 provides, in relevant part:
“(a) Generally. The hearing of a disciplinary or remedial action is governed
by the rules of evidence and procedure applicable to a court trial in a civil
action tried in a circuit court. Unless extended by the Court of Appeals, the
hearing shall be completed within 120 days after service on the respondent
of the order designating a judge. Before the conclusion of the hearing, the
judge may permit any complainant to testify, subject to cross-examination,
regarding the effect of the alleged misconduct. A respondent attorney may
offer, or the judge may inquire regarding, evidence otherwise admissible of
any remedial action undertaken relevant to the allegations. Bar Counsel
may respond to any evidence or remedial action.”
8
Maryland Rule 16-757 (c) states:
“(c) Findings and conclusions. The judge shall prepare and file or dictate
into the record a statement of the judge’s findings of fact, including
findings as to any evidence regarding remedial action, and conclusions of
law. If dictated into the record, the statement shall be promptly transcribed.
Unless the time is extended by the Court of Appeals, the written or
transcribed statement shall be filed with the clerk responsible for the record
no later than 45 days after the conclusion of the hearing. The clerk shall
mail a copy of the statement to each party.”
3
“On May 4, 2010, a judgment in a Criminal Case was entered by the
United States District Court for the District of Maryland in the case of United
States of America v. Harvey M. Nusbaum, Case N. JFM-1-09-CR-00328-001.
This judgment of conviction was entered following Respondent’s guilty plea
to one count of violating the Sherman Antitrust Act. Judge J. Frederick Motz
of the U. S. District Court sentenced Respondent to imprisonment for a term
of 12 months and one day, to be followed by a two-year period of supervised
release, and ordered payment of a monetary fine in the amount of $
800,000.00. The judgment also provided for Respondent to perform 100 hours
of community service as a condition of probation.
“On July 13, 2010, Respondent reported to the Federal Correctional
Institution in Cumberland, Maryland to begin serving his term of
imprisonment. On May 26, 2011, he was released from custody. He is now
on probation subject to supervision of the District of Maryland federal
probation office.”
Significantly, Judge Nagle expressly found that “Respondent presented no evidence of any
mitigating factors or extenuating circumstances.”
From those findings of fact, Judge Nagle concluded that the respondent violated
MRPC 8.4 (b), ( c ), and (d). He reasoned:
“The final judgment of conviction entered against Respondent in the
United States District Court for the District of Maryland is conclusive evidence
of Respondent’s guilt of engaging in an illegal combination and conspiracy in
violation of 15 U. S. C. § 1. Maryland Rule 16-771 (g).[9] the crime of which
9
This section provides:
“(g) Conclusive Effect of Final Conviction of Crime. In any proceeding
under this Chapter, a final judgment of any court of record convicting an
attorney of a crime, whether the conviction resulted from a plea of guilty,
nolo contendere, or a verdict after trial, is conclusive evidence of the guilt
of the attorney of that crime. As used in this Rule, ‘final judgment’ means a
judgment as to which all rights to direct appellate review have been
exhausted. The introduction of the judgment does not preclude the
Commission or Bar Counsel from introducing additional evidence or the
attorney from introducing evidence or otherwise showing cause why no
discipline should be imposed.
4
Respondent stands convicted is a ‘serious crime’ as that term is defined in
Maryland Rule 16-701 (k).
“Respondent engaged in professional misconduct that violated several
sections of the Maryland Lawyers’ Rules of Professional Conduct. By
engaging in the illegal combination and conspiracy of which he stands
convicted, Respondent committed a criminal act that reflects adversely on his
honesty, trustworthiness or fitness as a lawyer in other respects, thereby
violating Rule 8.4 (b). The underlying conduct that resulted in Respondent’s
conviction involved dishonesty, fraud, deceit or misrepresentation, in violation
of Rule 8.4 ( c). Finally, such conduct unlawfully affected the tax lien bidding
process at auctions conducted in several Maryland jurisdictions and therefore
was conduct prejudicial to the administration of justice, in violation of Rule
8.4 (d).
Neither the petitioner nor the respondent filed exceptions to the Findings of Fact and
Conclusions of Law.10 Accordingly, we shall “treat the findings of fact as established for
the purpose of determining appropriate sanctions, if any.” Maryland Rule 16-759 (b) (2) (A).
On the other hand, we “shall review de novo the circuit court judge's conclusions of law,”
as Rule 16-759 (b) (1) mandates that we do.
Our de novo review of Judge Nagle’s conclusions of law convinces us that they are
supported by the facts found and, so, we shall accept, and adopt, them as established by clear
and convincing evidence.
10
Although represented by counsel, at oral argument, the respondent and his counsel stood
mute.
5
Turning to the question of the appropriate disposition,11 the petitioner filed its
Petitioner’s Recommendation for sanctions. It is that the respondent be disbarred. The
petitioner submits:
“Respondent stands convicted of a ‘serious crime’ as that term is
defined in Maryland Rule 16-701 (k). He engaged in an illegal combination
and conspiracy ‘to suppress and eliminate competition by submitting non-
competitive and collusive bids’ at tax lien auctions in various Maryland
jurisdictions, leading to his conviction in the United States District Court for
the District of Maryland of violating Section 1 of the federal Sherman
Antitrust Act, 15 U. S. C. § 1. ... Respondent’s actions while participating in
the illegal combination and conspiracy constituted professional misconduct
proscribed by Rule 8.4 of the Maryland Lawyers’ Rules of Professional
Conduct, including sections (b), ( c) and (d) of that rule. ...
“Respondent offered no evidence of any extenuating circumstances,
compelling or otherwise, that would justify a sanction less than disbarment for
conduct that was criminal, dishonest, fraudulent and prejudicial to the
administration of justice. In the absence of compelling extenuating
circumstances, disbarment is the appropriate sanction to be imposed. See, e.g.,
Attorney Grievance Commission v. Garcia, 410 Md. 507, 979 A. 2d 146(2009) [, reinstatement granted sub nom. In re Garcia, 430 Md. 640, 62 A.3d
728 (2013),] (respondent’s conviction in federal court of conspiracy to commit
immigration fraud resulted in disbarment), Attorney Grievance Commission
v. Wingerter, 400 Md. 214, 929 A. 2d 47 (2007)[, reinstatement granted sub
nom. In re Reinstatement of Wingerter, 430 Md. 7, 59 A.3d 504 (2013)]
(disbarment deemed appropriate following respondent’s conviction in federal
court of misprison of a felony).”
As earlier noted, the repondent and his counsel stood mute at oral argument, and,
consequently, offered no recommendation as to the appropriate sanction. We agree with Bar
Counsel’s analysis. Indeed, Garcia and Winegerter follow inexorably from this Court’s
statement of the rule in 2001, in Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376,
11
Oral argument was scheduled for February 7, 2012.. On that date, the Court issued a
Per Curiam Order disbarring the respondent, “ [f]or reasons to be stated in an opinion
later to be filed.”
6
418, 773 A.2d 463, 488 (2001): “Disbarment ordinarily should be the sanction for intentional
dishonest conduct.” See also Attorney Grievance Comm'n v. Pennington, 387 Md. 565, 597,
876 A.2d 642, 660-61 (2005); Attorney Grievance Comm'n v. Lane, 367 Md. 633, 646, 790
A.2d 621, 628 (2002). The rationale for this now well settled rule was enunciated most
persuasively in Attorney Grievance Comm'n v. Ward, 396 Md. 203, 218, 913 A.2d 41, 50
(2006):
“This is so, because ‘[u]nlike 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.’ Vanderlinde, 364 Md. at 418, 773
A.2d at 488. Thus, like in the case of a misappropriation of entrusted funds,
see Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087,
1091 (1991), in the absence of compelling extenuating circumstances
justifying a lesser sanction, intentional dishonest conduct by a lawyer will
result in disbarment.”
Accordingly, we adopted the petitioner’s recommendation and for the foregoing reasons, we
disbarred the respondent.
7