Attorney Grievance v. Shephard , 444 Md. 299 ( 2015 )

Attorney Grievance Commission v. Tawana D. Shephard, Misc. Docket AG No. 22,
September Term 2014, Opinion by Greene, J.
ATTORNEY DISCIPLINE – SANCTIONS – DISBARMENT – Respondent, Tawana D.
Shephard, violated Maryland Lawyers’ Rules of Professional Conduct 1.1, 1.2(a), 1.3,
1.4(a)(2), 1.5(a), 1.15(a), (c), and (d), 5.3, 5.5, and 8.4(d). Respondent also violated
Maryland Rule 16-606.1. These violations stemmed from Respondent’s engagement in
the unauthorized practice of law as well as her role as “Managing Attorney” with sole
signatory authority over attorney trust accounts at the Glenmore Law Firm. At the time
of these violations, which occurred in Maryland, Respondent was not a member of the
Maryland Bar; Respondent was admitted to the Bar of the United States District Court for
the District of Maryland as well as the Bars of the State of Virginia, the District of
Columbia, and the federal Bars of those jurisdictions. Under the circumstances, the
appropriate sanction is disbarment.
Circuit Court for Baltimore City
Case No. 24-C-14-003643
Argued: May 6, 2015
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 22
September Term, 2014
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
TAWANA D. SHEPHARD
______________________________________
Barbera, C.J.
*Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Greene, J.
McDonald, J., dissents.
______________________________________
Filed: August 6, 2015
*Harrell, 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.
This attorney disciplinary proceeding involves a lawyer, unlicensed to practice law
in the state of Maryland, assuming the role of “Managing Attorney” in a Maryland law
firm and meeting with clients in the firm’s Maryland office. On June 5, 2014, the
Attorney Grievance Commission of Maryland (“Petitioner” or “Bar Counsel”), filed in
this Court a “Petition for Disciplinary or Remedial Action” pursuant to Maryland Rule
16-751(a) against Tawana D. Shephard (“Respondent”). The Petition, as amended,1
alleges that Respondent violated numerous Maryland Lawyers’ Rules of Professional
Conduct (“MLRPC” or “Rule”), specifically Rules 1.1 (Competence),2 1.2(a) (Scope of
Representation and Allocation of Authority Between Client and Lawyer),3 1.3
(Diligence),4 1.4 (Communication),5 1.5 (Fees),6 1.15(a), (c), and (d) (Safekeeping
1
Petitioner dropped some allegations and charges against Respondent during the
course of the instant proceedings.
2
MLRPC 1.1 states that “[a] lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.”
3
MLRPC 1.2(a) provides in pertinent part that “a lawyer shall abide by a client’s
decisions concerning the objectives of the representation and, when appropriate, shall consult
with the client as to the means by which they are to be pursued. . . .”
4
MLRPC 1.3 provides that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.”
5
MLRPC 1.4 provides in relevant part that “(a) [a] lawyer shall . . . (2) keep the client
reasonably informed about the status of the matter.”
6
MLRPC 1.5 states in pertinent part that “[a] lawyer shall not make an agreement for,
charge, or collect an unreasonable fee or an unreasonable amount for expenses. . . .”
Property),7 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers),8 5.3
(Responsibilities Regarding Nonlawyer Assistants),9 5.5 (Unauthorized Practice of
7
MLRPC 1.15(a), (c), and (d) provide:
“(a) A lawyer shall hold property of clients or third persons that is in a lawyer’s
possession in connection with a representation separate from the lawyer’s own property.
Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the
Maryland Rules, and records shall be created and maintained in accordance with the Rules
in that Chapter. . . .
(c) Unless the client gives informed consent, confirmed in writing, to a different
arrangement, a lawyer shall deposit legal fees and expenses that have been paid in advance
into a client trust account and may withdraw those funds for the lawyer’s own benefit only
as fees are earned or expenses incurred.
(d) Upon receiving funds or other property in which a client or third person has an
interest, a lawyer shall promptly notify the client or third person. Except as stated in this
Rule or otherwise permitted by law or by agreement with the client, a lawyer shall deliver
promptly to the client or third person any funds or other property that the client or third
person is entitled to receive and, upon request by the client or third person, shall render
promptly a full accounting regarding such property.
8
MLRPC 5.1 provides, in pertinent part, that “(a) [a] partner in a law firm, and a
lawyer who individually or together with other lawyers possesses comparable managerial
authority in a law firm, shall make reasonable efforts to ensure that the firm has in effect
measures giving reasonable assurance that all lawyers in the firm conform to the [MLRPC].
. . . .”
9
MLRPC 5.3 provides that “[w]ith respect to a nonlawyer employed or retained by
or associated with a lawyer:
(a) a partner, and a lawyer who individually or together with other lawyers possesses
comparable managerial authority in a law firm shall make reasonable efforts to ensure that
the firm has in effect measures giving reasonable assurance that the person’s conduct is
compatible with the professional obligations of the lawyer;
(b) a lawyer having direct supervisory authority over the nonlawyer shall make
reasonable efforts to ensure that the person’s conduct is compatible with the professional
obligations of the lawyer;
(c) a lawyer shall be responsible for conduct of such a person that would be a violation
of the [MLRPC] if engaged in by a lawyer if:
(1) the lawyer orders or, with the knowledge of the specific conduct, ratifies
the conduct involved; or
(continued...)
2
Law),10 and 8.4(d) (Misconduct).11 Petitioner also charged Respondent with violations of
Maryland Rule 16-606.1 (Attorney Trust Account Record-Keeping)12 and § 10-306
(Misuse of Trust Money) of the Maryland Code (1989, 2010 Repl. Vol., 2014 Supp.),
Business Occupations and Professions Article (“BOP”).13
By order dated June 10, 2014, this Court referred the matter to Judge Pamela J.
White of the Circuit Court for Baltimore City to conduct an evidentiary hearing and to
render findings of fact and conclusions of law, in accordance with Maryland Rule 16-757.
(...continued)
(2) the lawyer is a partner or has comparable managerial authority in the law
firm in which the person is employed, or has direct supervisory authority over
the person, and knows of the conduct at a time when its consequences can be
avoided or mitigated but fails to take reasonable remedial action. . . .”
10
MLRPC 5.5 provides in pertinent part:
(a) A lawyer shall not practice law in a jurisdiction in violation of the regulation of
the legal profession in that jurisdiction, or assist another in doing so.
(b) A lawyer who is not admitted to practice law in this jurisdiction shall not:
(1) except as authorized by these Rules or other law, establish an office or other
systematic and continuous presence in this jurisdiction for the practice of law; or
(2) hold out to the public or otherwise represent that the lawyer is admitted to practice
law in this jurisdiction.
11
MLRPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to . . . (d)
engage in conduct that is prejudicial to the administration of justice.”
12
Rule 16-606.1 provides in pertinent part that a lawyer shall create and maintain
records “for the receipt and disbursement of funds of clients or of third persons[,]” as well
as “[a] record for each client matter in which the attorney receives funds in trust” and “[a]
record that identifies the funds of the attorney held in each attorney trust account as permitted
by Rule 16-607(b). . . .”
13
BOP § 10-306 provides that “[a] lawyer may not use trust money for any purpose
other than the purpose for which the trust money is entrusted to the lawyer.”
3
Judge White conducted a two day hearing on December 1-2, 2014, during which she
heard testimony from the Respondent as well as the following client witnesses: Edna
Kaileigh-Bailey, Helene Cunningham, Katrina Smith, Joyce Whitaker, and Debra
Lampton. On January 20, 2015, Judge White issued her written findings of fact and
conclusions of law in which she found, by clear and convincing evidence, that
Respondent violated MLRPC 1.1, 1.2(a), 1.3, 1.4(a), 1.5(a), 1.15(a), (c), and (d), 5.3, 5.5,
and 8.4(d), as well as Maryland Rule 16-606.1. We summarize Judge White’s findings as
follows.
FINDINGS OF FACT AND CONCLUSIONS OF LAW
Respondent was admitted to the Virginia Bar in 1993 and to the District of
Columbia Bar in 2006. She is also a member of the Bars of the federal courts in those
jurisdictions. She is not a member of the Maryland Bar, but was admitted to the Bar of
the United States District Court for the District of Maryland sometime in 2011. Her
application to the Maryland Bar is pending.
In June of 2010, Respondent was asked by her then-employer, Newton Gaynor, a
non-lawyer, to join a new firm he was creating with an attorney, J.R. Howell. The firm
was established as the Glenmore Law Firm, LLC (“Glenmore”), located in Beltsville,
Maryland. Services offered by Glenmore included mortgage loan modification
negotiations, forensic audits, litigation against lenders, and bankruptcy. Glenmore hired
Respondent as an independent contractor, and Respondent signed a “Memorandum of
Understanding” dated July 9, 2010, detailing the terms of her employment with the firm.
4
On the firm letterhead, Respondent was identified as a member of the Virginia and
District of Columbia Bars. At the time she was hired, Respondent expected to provide
primarily or exclusively bankruptcy services. According to the hearing judge,
Respondent “understood that her duties ordinarily included trying to resolve client
complaints, making suggestions to Mr. Gaynor for attorneys’ assignment to cases, and
meeting with bankruptcy clients or describing other firm services to be offered to clients.”
Respondent understood that other attorneys were contracted to represent clients in
foreclosure defense actions, and additional contract attorneys were hired to address
mortgage loan modifications. Mr. Gaynor, sometimes in consultation with Respondent,
met with and hired several lawyers, none of whom stayed longer than a few months at the
firm.
Soon after joining the firm in July 2010, and after the departure of Mr. Howell,
Respondent was identified and acted as the firm’s “Managing Attorney.” Respondent
remained in that capacity at the firm until her phased departure mid-2011, practicing
primarily from the firm’s Beltsville office. Following her departure from the firm,
Respondent continued to represent a number of her Glenmore clients in bankruptcy,
federal court, and non-Maryland matters, and she did not seek or accept any attorneys’
fees for her continuing client services.
Attorney Trust Accounts
As Managing Attorney, Respondent opened Glenmore’s two attorney trust
accounts, one in Maryland and one in the District of Columbia. The account forms
5
identified the account as “Glenmore Law Firm, PLLC, IOLTA.” The bank records did
not reflect any designation of either account as an “Attorney Trust Account,” “Clients’
Funds Account,” or “Escrow Account,” nor was Glenmore designated as an LLC. The
forms also identified Respondent as the “Managing Partner,” and she repeated that
designation when she signed the documents. Respondent was the sole signatory on the
two trust accounts. She was also a signatory on Glenmore’s operating account, and was
responsible for determining when to move funds from the trust accounts to the firm
operating account.
The firm employed an office staff including an accounting department.
Respondent oversaw the accounting department’s operations related to firm accounting
records, including ledgers, bank statements, and monthly reconciliations, and reviewed
those records from time to time.14 Respondent was also responsible for ensuring
compliance with Maryland trust account rules. She testified that she believed she had
fulfilled her responsibility by instructing the office staff regarding which funds received
from clients should be deposited into the trust account. As stated by the hearing judge,
Respondent instructed the staff that “litigation” fees should be deposited into the attorney
trust account, but “client retainer monies were not required to be deposited into the trust
account if those sums were intended for the cost of audits to be conducted by
contractors.” On two occasions, Respondent inquired and raised concerns as to account
errors regarding the accounting staff’s failure to deposit a client payment into the attorney
14
The firm’s internal accounting records were not introduced at the hearing.
6
trust account. As a result, she informed Mr. Gaynor and the accounting staff that such
lapses should not happen again.
Glenmore Clients
In addition to managing the firm’s finances, Respondent signed retainer
agreements and “Welcome to Glenmore Law Firm” form letters that were given to
clients. Respondent signed these letters in her capacity as Managing Attorney.
Respondent also regularly signed, as Managing Attorney, “Cease and Desist” form letters
that were sent to clients’ lenders, informing the lenders of Glenmore’s representation of
the respective clients and requesting documentation concerning the clients’ loans.
Respondent testified that she conducted or participated in client intake meetings from
time to time, but that she did not have any “initial” meetings with any of the clients who
testified in these proceedings. Respondent further testified that she performed no analysis
of new client matters, believed she was responsible only for her own cases, and did not
supervise other attorneys. In addition, as stated by the hearing judge, “[s]he testified that
she was not hired to do loan modifications, and did not do any loan modification work,
and thus, had no occasion to provide any reports to clients on loan modification matters.”
Edna Kaileigh-Bailey
Respondent met with Edna Kaileigh-Bailey (“Ms. Kaileigh-Bailey”) in September
2010 when Ms. Kaileigh-Bailey sought assistance with regard to a mortgage loan
modification related to her property located in Nottingham, Maryland. Respondent
provided her with a retainer agreement and letter of representation. The retainer
7
agreement, signed by Ms. Kaileigh-Bailey and Respondent on September 25, 2010,
specifically referenced Respondent as the “Managing Attorney” of Glenmore. During
their September 25, 2010, meeting, Ms. Kaileigh-Bailey provided Respondent a package
of loan documents from her mortgage lender.
The retainer agreement specified that Glenmore required a retainer amount of
$5,000. On or about September 28, 2010, Ms. Kaileigh-Bailey made a payment to
Glenmore by credit card in the amount of $1,500. Ms. Kaileigh-Bailey paid Glenmore an
additional $3,395 approximately between October 5, 2010 through December 7, 2010.
Ms. Kaileigh-Bailey’s receipts reflect that her payments were for “litigation” services.
Comparison of the firm’s billing records and bank account statements indicate that one or
more of Ms. Kaileigh-Bailey’s fee payments were not deposited into the firm’s attorney
trust account. In addition, a firm invoice dated October 22, 2010 states that an October 5,
2010 payment of $1500 was “Deposited to [the] Operating [account] as Requested [by]
Mr. Newton.”
On October 22, 2010, Glenmore sent Ms. Kaileigh-Bailey an invoice for $5,000.00
for “litigation services.” Ms. Kaileigh-Bailey sent Glenmore a letter dated October 29,
2010, stating that she was “satisfied with the audit” that had been completed by
Glenmore, but requested the return of “the balance of money for services that were not
rendered.” Ms. Kaileigh-Bailey received another invoice, dated December 29, 2010,
billing Ms. Kaileigh-Bailey two hours for services identified as “Drafted Cease and
Desist letter week October 29, 2010.” Thereafter, on January 4, 2011, Respondent sent
8
Ms. Kaileigh-Bailey a letter entitled “Privileged & Confidential Attorney-Client
Communication,” an invoice for $5,895.00, and authorized a refund of $305.00.
Ms. Kaileigh-Bailey testified that she believed that Respondent was her attorney,
and that she repeatedly called Glenmore asking to speak with Respondent. Respondent
met with Ms. Kaileigh-Bailey on March 11, 2011, at which time Respondent and Ms.
Kaileigh-Bailey signed a new retainer agreement. Nevertheless, Ms. Kaileigh-Bailey
testified that Respondent failed to keep her informed of the status of her matter, stating: “I
called [Glenmore] so many times. And they started charging me for the calls, as you can
see, so I stopped. And I paid for the calls, $1,800.00, for every call I made.” On June 21,
2011, Ms. Kaileigh-Bailey sent another letter to Respondent stating that nothing had been
done to assist her with her loan modification and requesting a refund. As stated by the
hearing judge, despite Ms. Kaileigh-Bailey’s “urgent interest to negotiate a modification
of her mortgage loan, Respondent did not take any action, or oversee any work on the
client’s behalf, or move to communicate with [the lender] on the client’s behalf until
preparing the form ‘Cease and Desist’ letter.” The hearing judge found that the firm’s
billing records reflected that no legal work on Ms. Kaileigh-Bailey’s account was
undertaken until the week of October 29, 2010, at the earliest, when the “Cease and
Desist” letter was drafted. Ms. Kaileigh-Bailey testified that she terminated her
relationship with Respondent and Glenmore, and necessarily pursued her mortgage loan
modification efforts herself.
9
Helene Cunningham and Robert Beebe
Helene Cunningham and Robert Beebe retained Glenmore in early March 2011 to
assist them with obtaining a mortgage loan modification. Ms. Cunningham and Mr.
Beebe met with Shiva Arati, a Glenmore attorney. Following the meeting with Mr. Arati,
Ms. Cunningham and Mr. Beebe met with Respondent, who, as “Managing Attorney,”
signed a retainer agreement, described as a “Welcome to Glenmore” letter, for Ms.
Cunningham and Mr. Beebe. On the same date, Respondent also signed a “Cease and
Desist” letter on behalf of Ms. Cunningham and Mr. Beebe addressed to their lender,
Bank of America.
Glenmore sent Ms. Cunningham and Mr. Beebe an invoice dated May 20, 2011,
reflecting charges for services including the preparation of the “Cease and Desist” form
letter and sending a certified letter to Bank of America. Although Ms. Cunningham and
Mr. Beebe remitted a total of $8,554.28 in attorney’s fees to Glenmore, they testified that
they never received any discernible legal services from Respondent or any of Glenmore’s
other staff members. The firm’s billing records also reflect that the firm did not complete
any substantive work to earn the fees paid by Ms. Cunningham and Mr. Beebe. In
addition, comparison of the firm’s billing records and bank account statements indicate
that two payments made by Ms. Cunningham and Mr. Beebe were not deposited into the
firm’s attorney trust account.
10
Katrina and Paul Smith
Katrina and Paul Smith (“the Smiths”) retained Glenmore in March 2011 seeking
assistance with a modification of their mortgage loan. Respondent “was assigned to [the
Smith] file” and directed a non-lawyer, identified as C. Bowman, to tell the Smiths to
submit their mortgage documents for review. Respondent signed a retainer agreement
with the Smiths and a “Cease and Desist” letter addressed to the Smiths’ lender dated
March 30, 2011. Thereafter, no further services were provided to the Smiths. Ms. Smith
testified that she made 30 or 40 telephone calls to Respondent that were not returned, and
that Respondent was never available to the Smiths. Thus, the Smiths paid fees to the firm
that were never earned. In addition, comparison of the firm’s billing records and bank
account statements reveals that a payment of $1,500 made by Mrs. Smith on March 29,
2011 was not deposited into the firm’s attorney trust account.
Joyce and William Whitaker
In July 2010, Joyce and William Whitaker (“the Whitakers”) contacted Glenmore
about a loan modification and met with Mr. Gaynor, who introduced them to Respondent.
Ms. Whitaker testified that she believed Respondent conducted an audit for them. Mr.
Gaynor telephoned the Whitakers, asking them to return for an additional meeting. He
reported that the audit had discovered some problems, and that a loan modification could
be negotiated. Respondent signed and sent a “Cease and Desist” letter dated November
16, 2010, on behalf of the Whitakers to the Whitakers’ lender. Respondent testified that
she did meet with the Whitakers, but that she did not recall having any responsibility to
11
perform work for the Whitakers.
The Whitakers paid $895 for the audit and an additional $5,000 over the course of
several months for additional services. Comparison of the firm’s billing records and bank
account statements produced at the hearing demonstrates that two payments made by the
Whitakers were not deposited into the firm’s attorney trust account. In August 2011, the
Whitakers learned from a Virginia law firm that a foreclosure auction was scheduled for
their residence and they therefore concluded that Glenmore had not undertaken or
performed any legal services on their behalf.
Debra Lampton
Mr. Arati, while employed as a Glenmore attorney, filed a lawsuit on behalf of
Debra Lampton (“Ms. Lampton”) in the Circuit Court for Prince George’s County. The
lawsuit was subsequently removed to the United States District Court for the District of
Maryland. After Mr. Arati left the firm, Respondent sought to enter her appearance in the
case for a limited time and purpose. United States District Court Judge Roger Titus
directed Respondent, appearing to respond to his Show Cause Order, to continue to
represent Ms. Lampton, and chastised her as follows:
THE COURT: . . .You entered your appearance for the plaintiff in this case.
MS. SHEPHARD: My intention, Your Honor, was to a limited appearance.
THE COURT: Now, you don’t do limit[ed] appearances. Lawyers
represent clients. You don’t represent the Glenmore Law Firm. You
entered your appearance for this client [Debra Lampton]. This client is now
adrift, with nothing being done for this client, and this client had a serious
case that was filed in the Prince George’s County Circuit Court, removed to
12
this court. You entered your appearance. You asked for more time so the
law firm could investigate something that apparently wasn’t investigated
very much in the first place. And you have a responsibility to this client. It
is your personal responsibility. You are a member of the bar of this court.
MS. SHEPHARD: Your Honor, if I may, the case before the [c]ourt, Ms.
Lampton, was a case, as it indicated, that was handled by Mr. Arati. I in no
way intended to represent Ms. Lampton.
THE COURT: When you file your appearance on behalf of a client, you are
representing the client.
MS. SHEPHARD: That was not my intent.
THE COURT: Well, it may not have been your intention, but as a matter of
law when you enter your appearance for a client you are representing that
client. This client is adrift. Nothing is being done for this client. Open
motions are out there that have not been responded to and this client stands
to lose her entire case because you have not done anything.
MS. SHEPHARD: Okay. Fine. I disagree with the [c]ourt, but that’s fine.
THE COURT: Well, you’re going to have to understand that this client is
represented by you now. If you wish to withdraw your appearance, you
need to make a motion to withdraw your appearance. And something needs
to be done to get services, legal services for this client. This client has been
abandoned, and this [is] just not something this [c]ourt is going to tolerate. .
..
The hearing judge, in this disciplinary proceeding, found that Respondent competently
represented Ms. Lampton after she was obliged by Judge Titus to undertake that
representation, and eventually she was able to negotiate a satisfactory settlement on
behalf of Ms. Lampton. Ms. Lampton testified that she was satisfied with Respondent’s
services, and that she never had any difficulties in communicating with Respondent.
13
Aggravation
The hearing judge made no findings as to mitigation. As to aggravation, however,
Judge White found that Respondent “diminishe[d] the nature and character of her role as
Glenmore’s ‘Managing Attorney’ to that of a ministerial functionary.” Based on her
findings of fact, Judge White concluded that Respondent’s responsibilities, which
included “directing, conducting, [and] necessarily controlling the client work and attorney
assignments,” were “far beyond the merely ministerial.” In addition, the hearing judge
specifically rejected Respondent’s reliance on the “Memorandum of Understanding” she
signed with the firm, as a description of her role as an independent contractor rather than
a supervisor at the firm. In Judge White’s view, this reliance on the “Memorandum” as
well as Respondent’s repeated denials regarding her responsibilities “serve to aggravate
both the perception and reality that Respondent defaulted on her professional
responsibilities to clients in Maryland, where she was not authorized to practice law.”
Conclusion
Accordingly, the hearing judge entered detailed conclusions of law, in which she
found, by clear and convincing evidence, that Respondent violated MLRPC 1.1, 1.2(a),
1.3, 1.4(a), 1.5(a), 1.15(a), (c), and (d), 5.3, 5.5, and 8.4(d), and Maryland Rule 16-606.1.
The hearing judge further concluded that Respondent did not violate either MLRPC 5.1 or
BOP § 10-306.
14
DISCUSSION
“This Court has original and complete jurisdiction over attorney discipline
proceedings in Maryland.” Attorney Grievance Comm’n v. Barton, 442 Md. 91, 119, 110
A.3d 668, 684 (2015) (quoting Attorney Grievance Comm’n v. O’Leary, 433 Md. 2, 28,
69 A.3d 1121, 1136 (2013)). The Court conducts an independent review of the record,
“giv[ing] deference to the hearing judge’s assessment of the credibility of the witnesses.”
Attorney Grievance Comm’n v. Thomas, 409 Md. 121, 147, 973 A.2d 185, 201 (2009).
“With respect to exceptions, upon our review of the record, the hearing judge’s findings
of fact generally will be accepted unless they are clearly erroneous. A hearing judge’s
factual finding is not clearly erroneous if there is any competent material evidence to
support it.” Barton, 442 Md. at 119, 110 A.3d at 684 (internal citations and quotations
omitted). We review the hearing judge’s conclusions of law for legal correctness. Md.
Rule 16-759(b)(1).
Petitioner filed no exceptions to the hearing judge’s findings of fact and
conclusions of law, and recommends that Respondent be disbarred. Respondent filed
numerous exceptions to both the hearing judge’s findings of fact and conclusions of law.
Respondent’s Exceptions to Findings of Fact
First, Respondent excepts to the finding that “one of the reasons [she] left
Glenmore was her concern about the unauthorized practice of law.” Based upon our
independent review of the record, we find no evidence to support this finding.
Accordingly, we sustain this exception.
15
Exceptions Regarding Ms. Kaileigh-Bailey
Respondent excepts to the hearing judge’s finding that she held herself out to Ms.
Kaileigh-Bailey as a Maryland attorney. She also excepts to the finding that she reviewed
Ms. Kaileigh-Bailey’s documents for the purpose of addressing the client’s request for a
loan modification, which, in any event, Respondent argues, constitutes a task that a
paralegal could (and, at Glenmore, often did) complete. Respondent contends that when
she met with Ms. Kaileigh-Bailey, she simply received the documents and the two had no
further meetings or conversations. We shall overrule in part and sustain in part
Respondent’s exceptions regarding Ms. Kaileigh-Bailey.
Notably, all of Respondent’s written communications with Ms. Kaileigh-Bailey
serve to indicate that Respondent was a Maryland attorney and that either she or her law
firm would render legal services. Respondent’s September 25, 2010, “Attorney Retainer
Agreement” with Ms. Kaileigh-Bailey specifically states that “[o]ur duties will include
advising and counseling you by investigating the law and facts, and seeking the release of
any deficiencies levied against you as a result of foreclosure.” On March 11, 2011,
Respondent and Ms. Kaileigh-Bailey signed a second retainer agreement authorizing
Glenmore to act as Ms. Kaileigh-Bailey’s “attorneys-in-fact.” Both agreements include
Respondent’s signature as “Managing Attorney.” On January 4, 2011, Respondent sent
Ms. Kaileigh-Bailey a letter entitled “Privileged & Confidential Attorney-Client
Communication.” In addition, an invoice from Glenmore describes a charge for Ms.
Kaileigh-Bailey’s meeting with Respondent as “litigation services.” Moreover,
16
Respondent and Ms. Kaileigh-Bailey met at least twice in order to sign the first and then
the second retainer agreements, and the second retainer agreement specifically included
additional paragraphs detailing the scope of the attorney-client relationship.
In addition, the record does not disclose any instance in which Respondent
disclosed her jurisdictional limitations with respect to Maryland. Where a law firm’s
primary office is located in Maryland, the presence of state designations such as “VA”
and “DC” on firm letterhead next to the Managing Attorney’s name, without more,
implies that the attorney is barred in Virginia and the District of Columbia in addition to
Maryland. See Attorney Grievance Comm’n v. Alsafty, 379 Md. 1, 7, 838 A.2d 1213,
1217 (2003) (accepting the hearing judge’s conclusion that “[i]t is a common practice to
designate the other jurisdictions in which an attorney is licensed to practice in addition to
the state where his/her principal offices are located”). Based on this record, we are
unable to conclude that Judge White’s finding that Respondent held herself out to Ms.
Kaileigh-Bailey as a Maryland attorney is clearly erroneous. Therefore, we overrule this
exception.
We will, however, sustain Respondent’s exception to the hearing judge’s finding
that she reviewed Ms. Kaileigh-Bailey’s documents for the purpose of addressing her
loan modification. We agree with Respondent that the record does not demonstrate that
Respondent actually reviewed Ms. Kaileigh-Bailey’s documents. The record indicates
only that Respondent received the documents during her meeting with Ms. Kaileigh-
Bailey.
17
Exceptions Regarding the Smiths
Next, Respondent excepts to the finding that she was assigned to the Smiths’ file
and that “Ms. Smith made 30 to 40 telephone calls to [Respondent].” The record
demonstrates that on March 30, 2011, Respondent signed and sent a form “Cease and
Desist” letter to HSBC Mortgage Services on behalf of the Smiths. At the evidentiary
hearing, Ms. Smith testified that she understood Respondent to be her attorney and that,
some time in March 2011, Respondent contacted her by telephone, stating that
“[Respondent] had sent out [Ms. Smith’s] documents to [Ms. Smith’s] mortgage lender,
which is HSBC, and that [Respondent] [would] be getting back to [Ms. Smith].”
Accordingly, the record demonstrates clearly that, whether or not she was specifically
assigned to the Smiths’ file or did any substantive work on their behalf, Respondent held
herself out to the Smiths and to the Smiths’ lender as the attorney working on or
responsible for their matter.
In addition, Respondent bases her exception to the finding that “Ms. Smith made
30 to 40 telephone calls” to her on her contention that Ms. Smith lacks credibility.
Respondent asserts that Ms. Smith’s testimony should be discredited in part because the
testimony was that Ms. Smith telephoned the firm, and there was no evidence presented
that Respondent was aware of the Smiths’ attempts to contact her. “The general rule is
that we defer to the credibility findings of the hearing judge.” Attorney Grievance
Comm’n v. Agbaje, 438 Md. 695, 722, 93 A.3d 262, 277 (2014). Where the hearing judge
apparently found Ms. Smith’s testimony to be more credible than Respondent’s, and
18
absent any indication that the hearing judge’s findings were clearly erroneous, we decline
to overrule this exception.
Exceptions Regarding Respondent’s Responsibilities
Respondent excepts to Judge White’s finding that she was responsible for
supervising the work of Glenmore attorney Shiva Arati. Respondent asserts that she “did
not supervise any of the Glenmore attorneys, who, like her, were independent
contractors.” Although there is evidence to suggest that Ms. Shephard had supervisory
responsibilities in Glenmore (for example, her title was “Managing Attorney”), the
hearing judge’s specific findings with regard to supervision of other attorneys are
somewhat contradictory. On the one hand, the hearing judge found that Respondent “did
not undertake to supervise or instruct other attorneys.” On the other hand, the hearing
judge found that “Ms. Shephard was responsible for supervising Arati’s work for the
firm’s clients.” In conducting our independent review, we do not find competent
evidence in the record to support the conclusion that Respondent supervised Arati’s work.
Based upon our independent review, and further considering that the hearing judge did
not find that Respondent violated MLRPC 5.1 (concerning the supervision of subordinate
lawyers), we sustain this exception.
Exceptions Regarding Aggravation
Finally, Respondent excepts to Judge White’s findings regarding aggravation. She
excepts to the finding that “she represented herself to firm clients as one who was
responsible for directing, conducting, and controlling client work and attorney
19
assignments.” She further states that she “attempted to perform her professional
responsibilities to the best of her ability” and that “her testimony genuinely reflected the
actuality of Glenmore’s structure and operations and her role and activities within the
firm.” The fact that Respondent repeatedly represented herself to firm clients as
Glenmore’s Managing Attorney, such as by signing retainer agreements as “Managing
Attorney” and sending “Cease and Desist” letters on clients’ behalf, plainly contradicts
Respondent’s assertion that she did not take on the responsibilities that led to the instant
disciplinary action. Moreover, based on Respondent’s repeated denials of her
responsibility in these matters, which she continues in her exceptions to this Court, we
shall overrule this exception. In sum, consistent with the above, we conclude that the
hearing judge’s findings that Respondent held herself out as the managing attorney of
Glenmore, with responsibilities over the firm’s attorney trust account and multiple client
matters, were not clearly erroneous.
Conclusions of Law – Respondent’s Violations and Exceptions
As a general matter, Respondent excepts to all conclusions relating to her
perceived responsibilities as Glenmore’s “Managing Attorney.” She argues that the
hearing judge incorrectly equated her with Glenmore as though their obligations were
identical, rather than focusing on Respondent’s own direct and personal involvement with
Glenmore operations and clients. Essentially, Respondent contends that she is being held
unreasonably “vicariously liable” for all activities undertaken by Glenmore as an entity
by virtue of her title as “Managing Attorney.”
20
The notion of vicarious responsibility in attorney discipline cases generally arises
in the context of MLRPC 5.115 and 5.3 violations. MLRPC 5.1 and 5.3 govern a lawyer’s
responsibilities regarding supervision of subordinate lawyers and nonlawyer assistants.
Subsection (c) of each of those rules, respectively, makes a lawyer vicariously responsible
for a subordinate lawyer’s violation of another rule or a nonlawyer’s conduct that, if
performed by a lawyer, would constitute a violation of another rule. Attorney Grievance
Comm’n v. McDowell, 439 Md. 26, 42 n.10, 44 n.11, 93 A.3d 711, 721 n.10, 721 n.11
(2014). Our rules place the burden on partners or managing attorneys to ensure that their
firm and staff are in compliance with their professional obligations. See Attorney
Grievance Comm’n v. Johnson, 409 Md. 470, 506-07, 976 A.2d 245, 266 (2009)
(“[Respondent] cannot shift the responsibility for the HUD–1 misrepresentations and
overall fraud committed by [his company] to an employee when he was clearly in a
position of management and authority.”); Attorney Grievance Comm’n v. Glenn, 341 Md.
448, 479, 671 A.2d 463, 478 (1996) (“An attorney must ascertain that his or her
employees perform their responsibilities in a competent manner.”); Attorney Grievance
Comm’n v. Goldberg, 292 Md. 650, 655, 441 A.2d 338, 341 (1982) (“An attorney may
not escape responsibility to his clients by blithely saying that any shortcomings are solely
the fault of his employee.”).
Attorney Grievance Commission v. Kimmel, 405 Md. 647, 955 A.2d 269 (2008), is
15
The Petition, as amended, did not charge Respondent with a violation of MLRPC
5.1.
21
instructive. In that case, partners of a Pennsylvania law firm (“K & S”) hired a Maryland
lawyer inexperienced in civil trial work to open and operate a new office for the firm
located in Maryland. Kimmel, 405 Md. at 653-55, 955 A.2d at 273-74. After completing
one month of training at the firm’s home office in Pennsylvania, the new associate, Ms.
Katz, began taking on a significant number of civil cases in Maryland. Kimmel, 405 Md.
at 655-56, 955 A.2d at 274. Katz soon became overwhelmed and began missing
numerous discovery deadlines, leading to dismissals in forty-seven cases. Kimmel, 405
Md. at 661, 955 A.2d at 277-78. Approximately one year after beginning her
employment with the firm, Katz resigned and the managing partners of K & S began to
resolve client problems that had accrued due to Katz’s inaction. Kimmel, 405 Md. at 663,
955 A.2d at 279. Subsequently, Bar Counsel charged the partners with failure to
supervise adequately the Maryland associate in violation of MLRPC 5.1, and failure to
communicate with one of the clients adversely affected by the associate’s ineptitude, in
violation of MLRPC 1.4. Kimmel, 405 Md. at 651-52, 955 A.2d at 272.
In addressing the MLRPC 5.1 violation, we explained that “[o]ur Rules require
that a firm’s executive lawyers design and implement supervisory procedures that
anticipate the ethical demands specific to the practice they lead.” Kimmel, 405 Md. at
672, 955 A.2d at 284. Perhaps more telling as to the responsibilities and burden placed
on managing attorneys is our discussion in Kimmel regarding the MLRPC 1.4 violation.
The partners argued that they should not be held responsible for the failure to
communicate with one of the affected Maryland clients because only the associate was
22
the counsel of record for that client. Kimmel, 405 Md. at 683, 955 A.2d at 290-91. We
strongly disagreed, stating that the client hired the firm, not the individual associate. Id.
We explained:
The onus was on Respondents [the partners], when [the associate] resigned,
to ensure that a response was made promptly to inquiries submitted to the
firm by affected clients. To conclude otherwise would mean that a firm
would have no responsibility to respond to its clients if a matter became
unassigned, for any reason, to a specific attorney within the firm. . . . The
purpose of the Rule would be thwarted if the firm [the client] hired was not
obligated to respond to his inquiries in such circumstances. Respondents, as
the firm’s managers, are accountable for this actionable delay.
Id.
Respondent suggests that, were we to fail to sustain her exceptions, future partners
could be held responsible–personally, not just for inadequate supervision–for all the
failures of their subordinates even if those partners merely signed welcome letters as a
matter of course when clients retained their firms. This case, however, involves an
attorney signing not just a welcome letter that outlines the firm’s responsibilities,
obligations, and promises to the client, but also meeting with clients, signing cease and
desist letters addressed to clients’ mortgage lenders and communicating with clients about
ongoing matters. A lawyer should understand that these kinds of activities constitute the
representation of a client, and that representation carries with it a set of professional
responsibilities that a lawyer with 18 years of experience will be expected to understand.
Moreover, an attorney in Maryland engaging in conduct like Respondent’s has a duty
either to follow through on the representation of clients or to make sure that another
23
attorney ably represents those clients.
In any event, Respondent took the title as well as certain responsibilities as
Glenmore’s “Managing Attorney.” Her management responsibilities included, primarily,
the oversight of the firm’s attorney trust account. In addition, as stated by the hearing
judge, Respondent “understood that her duties ordinarily included trying to resolve client
complaints, making suggestions to Mr. Gaynor for attorneys’ assignment to cases, and
meeting with bankruptcy clients or describing other firm services to be offered to clients.”
It is Respondent’s failure to uphold her responsibilities that have led to these disciplinary
proceedings. As we shall explain, the overall theory of Respondent’s responsibility in
this matter is based on her own negligence in acting as a Maryland attorney in the
representation of clients and inadequately managing Glenmore’s attorney trust account.
As our discussion below makes clear, Respondent is responsible for her own failures and
the consequences of accepting a managerial position.
MLRPC 1.1 (Competence)
MLRPC 1.1 provides that “[a] lawyer shall provide competent representation to a
client. Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” Competent representation
includes proper treatment and maintenance of client funds in a trust account. Attorney
Grievance Comm’n v. Bell, 432 Md. 542, 552, 69 A.3d, 1040, 1046 (2013) (“Incorporated
within the competence requirement is a lawyer’s duty to properly maintain his trust
account.”); Attorney Grievance Comm’n v. Maignan, 390 Md. 287, 296-97, 888 A.2d
24
344, 349 (2005) (agreeing that an attorney’s “failure to maintain [client] funds in a proper
trust account demonstrates incompetence under MLRPC 1.1”); Attorney Grievance
Comm’n v. Brown, 380 Md. 661, 667-68, 846 A.2d 428, 432 (2004) (“The [r]espondent’s
failure to properly maintain [the client’s] settlement monies in his escrow account
demonstrates his incompetence pursuant to Rule 1.1.”).
In this case, Respondent testified that she was the only person at Glenmore with
authority over the trust accounts and that she was responsible for reviewing the accounts.
The responsibility to properly maintain the accounts under MLRPC 1.1 therefore fell to
her. The hearing judge found that multiple payments of unearned attorney’s fees were
not deposited into the attorney trust account. Although Respondent originally filed an
exception with regard to MLRPC 1.1, Respondent’s attorney conceded during oral
argument before this Court that Respondent failed to ensure that funds were properly
deposited in the trust account. Accordingly, we agree with the hearing judge that
Respondent was incompetent for failing to maintain unearned client funds in the firm’s
trust account without the client’s consent in violation of MLRPC 1.1.
MLRPC 1.2 (Scope of Representation), 1.3 (Diligence), and 1.4 (Communication)
The hearing judge concluded that Respondent violated MLRPC 1.2(a), 1.3, and
1.4(a)(2) by failing to perform the work promised to clients, and by failing to respond
timely or keep clients informed about the status of their cases. Respondent excepts to
these conclusions on the basis that she did not owe a personal responsibility to these
clients because they were clients of the firm. The failures of Glenmore, as an entity,
25
Respondent argues, do not establish violations of professional obligations owed by
Respondent personally under these Rules. Respondent asserts that the evidence does not
support a conclusion that, after signing the “Welcome to Glenmore” and “Cease and
Desist” letters, Respondent undertook, or should be charged with, a personal
responsibility for the representation of these former clients. We overrule these
exceptions.
In essence, Respondent avers that no attorney-client relationship existed between
her and the clients. As we explain throughout this opinion, Respondent’s contact and
involvement in each client matter extended beyond mere incidental involvement. Indeed,
Respondent, among other things, signed retainer agreements identifying herself as the
“Managing Attorney” and signed “Cease and Desist” letters to lenders on behalf of
clients. In light of her involvement with each client’s legal matter it is unsurprising that
Ms. Kaileigh-Bailey expressly testified that she believed Respondent to be her attorney,
or that Ms. Kaileigh-Bailey, along with the Smiths, made repeated attempts to contact
Respondent during their representation.
Rule 1.2(a) requires that “a lawyer shall abide by a client’s decisions concerning
the objectives of the representation and, where appropriate, shall consult with the client as
to the means by which they are to be pursued.” We have explained:
When a lawyer fails to take any steps towards the client’s objective, the
lawyer necessarily fails to abide by the client’s decision concerning that
objective. Moreover, we have held that the failure to prosecute a client’s
case, combined with a failure to communicate with the client about the
status of the case, constitutes a violation of MLRPC 1.2(a).
26
Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 223, 46 A.3d 1169, 1177 (2012)
(citations omitted). All of the clients at the hearing testified that they did not receive the
services for which they sought assistance and were billed. As their attorney, Respondent
was required to ensure that the clients received the services promised to them and that the
clients remained reasonably informed of the status of their cases. Respondent’s failure to
do so clearly establishes a violation of Rule 1.2(a). See id. (concluding that the attorney
violated Rule 1.2(a) where “the hearing judge found the necessary combination of a
failure to pursue a client matter and a failure to communicate with the client about the
status of the matter”).
MLRPC 1.3 requires that “[a] lawyer shall act with reasonable diligence and
promptness in representing a client.” “A lawyer who takes ‘no action whatsoever’ in
representing a client violates this rule.” Attorney Grievance Comm’n v. Gage-Cohen, 440
Md. 191, 198, 101 A.3d 1043, 1047 (2014) (citation omitted). As noted above,
Respondent failed to provide the services for which the clients sought assistance. Indeed,
after signing the “Cease and Desist” letters on the behalf of Ms. Kaileigh-Bailey, Ms.
Cunningham and Mr. Beebe, the Smiths, and the Whitakers, Respondent took no action
on behalf of these clients. This failure to take action for or on behalf of her clients
violates Rule 1.3.
MLRPC 1.4(a)(2) requires an attorney to “keep the client reasonably informed
about the status of the matter.” We have stated that “[a]ttorneys violate MLRPC 1.4
27
when they fail to communicate with their clients and keep them informed of the status of
their legal matters, especially when clients attempt repeatedly to speak with them.”
Attorney Grievance Comm’n v. Thomas, 440 Md. 523, 553, 103 A.3d 629, 647 (2014). In
this case, Ms. Smith and Ms. Kaileigh-Bailey testified that they repeatedly attempted to
contact Respondent to no avail. Similarly, the Whitakers only discovered that their
matter had not been pursued when they learned from a Virginia law firm that a
foreclosure auction was scheduled for their residence. Thus, Respondent’s conduct in this
case clearly demonstrates a failure to keep clients informed about the status of their cases,
in violation of MLRPC 1.4(a)(2).
Rule 1.5 (Fees)
MLPRC 1.5(a) provides that “[a] lawyer shall not make an agreement for, charge,
or collect an unreasonable fee or an unreasonable amount for expenses.” As we have
previously explained, “[w]hen an attorney charges a fee but does no work, the fee is per
se unreasonable. It is irrelevant that the fee [was] ‘initially reasonable’ if the attorney
fails to perform any of the services for which the attorney was paid.” Gage-Cohen, 440
Md. at 198-99, 101 A.3d at 1047 (emphasis in original) (citations omitted). In this case,
the hearing judge found a violation of MLRPC 1.5(a) where Glenmore collected fees for
legal services that were not delivered.
Respondent excepts to this conclusion on the grounds that client fees “were paid to
Glenmore, not to [Respondent], [and] client services were to be performed by various
Glenmore attorneys or contractors” other than Respondent. (Emphasis in original).
28
Moreover, she asserts that even if she were a true managing attorney, she should not be
held vicariously responsible for acts in which she did not personally participate.
Respondent maintains that it would be unfair to find her responsible under a rule
concerning personal conduct when she did not personally take money from clients.
Under the facts of this case, we disagree.
The record demonstrates that Respondent signed retainer agreements–requesting
funds–as well as invoices charging clients for services that clients never received. She
also authorized a refund of client fees in at least one instance. These activities, combined
with Respondent’s admission that she maintained responsibility for the firm’s attorney
trust account as well as decision making regarding where funds were to be deposited,
demonstrate that Respondent had at least some authority over the collection of fees.
Moreover, acting as an attorney representing clients, Respondent has a responsibility to
ensure that client fees are collected only for work actually performed, and that a client
receives adequate representation. Respondent failed to carry out those responsibilities,
and therefore we agree with the hearing judge that she violated MLRPC 1.5.
Rule 1.15 (Safekeeping Property)
The hearing judge concluded that Respondent violated MLRPC 1.15(a), (c), and
(d). MLRPC 1.15(a) requires that “[f]unds shall be kept in a separate account maintained
pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall be created and
maintained in accordance with the Rules in that Chapter.” MLRPC 1.15(c) requires a
lawyer to obtain informed consent, in writing, to any fee arrangement other than one
29
requiring Respondent to deposit fees paid in advance into a trust account. MLRPC
1.15(d) requires a lawyer to “deliver promptly to the client. . . any funds or other property
that the client. . . is entitled to receive.” In sum, Rule 1.15 “mandates that attorneys
‘maintain a separate account to safeguard funds of clients . . . and . . . deposit unearned
fees into the client trust account, unless the client gives informed consent, confirmed in
writing, to a different arrangement.’” Gage-Cohen, 440 Md. at 200-01, 101 A.3d at 1048
(citation omitted). See also Attorney Grievance Comm’n v. Khandpur, 421 Md. 1, 16, 25
A.3d 165, 174 (2011) (“Our cases hold that fee payments, even if a flat fee, must be
placed in escrow upon receipt if the work has not yet been performed at the time of
payment.”).
Respondent argues that she did not violate Rule 1.15 because (1) she instructed
staff on proper attorney trust account procedures, (2) she attempted to correct trust
account irregularities when she observed them, and (3) there is no evidence that she
personally deposited, authorized or approved a deposit, or withdrew funds in
contravention of the Maryland rules regarding attorney trust accounts. She maintains that
to hold otherwise would be to impermissibly hold her vicariously responsible for such a
violation. We overrule this exception.
Respondent was the sole person at Glenmore with authority over the trust
accounts. That Ms. Shephard instructed staff on proper procedures is insufficient on its
own to avoid violating MLRPC 1.15. As the attorney managing the firm’s trust account,
it was Respondent’s responsibility to ensure that client funds were properly deposited
30
and/or maintained in an attorney trust account. The failure to do so, evidenced in the
record here, constitutes a violation of MLRPC 1.15(a). Further, no informed consent was
obtained that might have authorized a different arrangement, in violation of MLRPC
1.15(c). As the sole person with responsibility for keeping the trust accounts in
conformance with Maryland Rules, Respondent was expected to direct that these
unearned (and not intended to be earned) fees be refunded. Her failure to do so clearly
constitutes a violation of MLRPC 1.15(d).
Rule 5.3 (Responsibilities Regarding Nonlawyer Assistants)
MLRPC 5.3 provides in relevant part that “a lawyer having direct supervisory
authority over [a] nonlawyer shall make reasonable efforts to ensure that the person’s
conduct is compatible with the professional obligations of the lawyer.” It is well
established that these obligations include those relating to the maintenance of an attorney
trust account. See, e.g., Attorney Grievance Comm’n v. Kobin, 432 Md. 565, 582, 69
A.3d 1053, 1064 (2013) (concluding that the “respondent violated MLRPC 5.3 by failing
to advise [his non-lawyer assistant] of the rules regarding trust accounts or . . . how to
comply with those rules.” Here, the hearing judge concluded that Respondent violated
Rule 5.3 by failing to properly supervise non-lawyer assistants who mishandled trust
account funds. Although Respondent originally excepted to this conclusion, her attorney
conceded at oral argument that Respondent failed to uphold her responsibilities in relation
to the trust account.
As the sole person at Glenmore with authority over the firm’s trust accounts,
31
Respondent had a responsibility under MLRPC 5.3 to affirmatively monitor the
employees with whom she tasked the maintenance of the firm’s trust accounts. An
attorney violates MLRPC 5.3 “when an attorney delegates a task to an employee, the
unsuccessful or improper completion of which would result in a violation of the Rules.”
Attorney Grievance Comm’n v. Barton, 442 Md. 91, 136, 110 A.3d 668, 694 (2015). For
example, in Attorney Grievance Commission v. Zuckerman, 386 Md. 341, 872 A.2d 693
(2005), we held that an attorney violated MLRPC 5.3(a) and (b) by failing to supervise
adequately his assistant to whom he assigned the task of balancing his attorney trust
account. In that case, the nonlawyer employee failed to properly balance the checkbook,
and as a result, the employee and the attorney did not discover timely a theft from his
trust account by one of his other employees. Zuckerman, 386 Md. at 352, 872 A.2d at
700. We explained that the lawyer’s failure to oversee his employees’ tasks violated the
MLRPC because he failed to “make reasonable efforts to ensure that his employees’
conduct complied with his own professional obligations.” Zuckerman, 386 Md. at 374,
872 A.2d at 712-13. Similarly, in this case, the fact that Respondent instructed staff on
proper procedures is insufficient. As the attorney overseeing the trust accounts,
Respondent had an affirmative duty to continue to supervise the accounting department to
ensure that the ethical obligations relating to the maintenance of the trust account were
being met. Where the record discloses multiple instances of trust account mistakes and
failures, we conclude that Respondent failed to supervise adequately her nonlawyer
assistants.
32
Rule 5.5 (Unauthorized Practice of Law)
MLRPC 5.5 provides that “(a) [a] lawyer shall not practice law in a jurisdiction in
violation of the regulation of the legal profession in that jurisdiction[.]” Subsection (b)
further prohibits “[a] lawyer who is not admitted to practice in this jurisdiction” from
establishing “an office or other systematic and continuous presence in this jurisdiction for
the practice of law” and from “hold[ing] out to the public or otherwise represent[ing] that
the lawyer is admitted to practice law in this jurisdiction.” Generally, “[t]o determine
whether an individual has engaged in the practice of law, the focus of the inquiry should
be on whether the activity in question required legal knowledge and skill in order to apply
legal principles and precedent.” Attorney Grievance Comm’n v. Hallmon, 343 Md. 390,
397, 681 A.2d 510, 514 (1996) (citations and quotations omitted).
Respondent excepts to the conclusion that she violated MLRPC 5.5 based on her
assertion that the clients who testified in these proceedings sought legal assistance from
Glenmore, not Respondent, and had only “incidental contact” with her.16 She further
contends that there is insufficient evidence to conclude that she prepared or interpreted
legal documents, applied legal principles to legal problems, or otherwise provided legal
services to clients other than for bankruptcy and other federal matters. We shall overrule
Respondent’s exception.
16
Respondent also excepted to this conclusion on the grounds that “management of
a trust account does not fall within the definition of the practice of law as requiring legal skill
or knowledge.” The hearing judge, however, did not rely on the fact that Respondent
managed the firm’s trust account to hold her responsible for a violation of MLRPC 5.5(b).
Therefore, we do not address this argument.
33
We discussed the unauthorized practice of law under similar circumstances in
Attorney Grievance Commission v. Harris-Smith, 356 Md. 72, 737 A.2d 567 (1999). In
that case, Ms. Harris-Smith was an attorney licensed to practice in Pennsylvania,
Virginia, the District of Columbia, and the United States District Court for the District of
Maryland, but not the State of Maryland. Harris-Smith, 356 Md. at 74, 737 A.2d at 568.
Ms. Harris-Smith limited her law practice to bankruptcy matters. Id. Her law practice
was based out of a firm in Landover, Maryland, where she regularly met with clients. Id.
In addition to meeting with her own bankruptcy clients, Ms. Harris-Smith engaged in
“prescreening” interviews with prospective clients in order to identify their legal matters
and refer them to the appropriate attorney within the firm. 356 Md. at 77, 737 A.2d at
570. Despite listing a Maryland address, Ms. Harris-Smith’s law firm advertisements and
business cards did not specify that she was not licensed to practice in Maryland. Id.
Based upon her activities in Maryland, Bar Counsel charged Ms. Harris-Smith with the
unauthorized practice of law in violation of MLRPC 5.5.
Before this Court, Ms. Harris-Smith argued that she did not engage in the
unauthorized practice of law because her practice was limited to bankruptcy matters and,
therefore, she was engaged in a solely federal practice.17 In concluding that Ms. Harris-
17
We note that in this case, Petitioner has acknowledged the existence of a “federal
overlay” for Respondent’s conduct in the United States District Court proceeding on behalf
of Ms. Lampton. See Attorney Grievance Comm’n v. Alsafty, 379 Md. 1, 19, 838 A.2d 1213,
1224 (2003) (explaining that the “federal overlay” of one’s practice of law is tantamount to
“a valid admission to the federal bar, and thus, a right to practice in Maryland, if done
consistent with that admission[,]” and that “[t]he existence of the federal overlay negates any
(continued...)
34
Smith violated MLRPC 5.5, we explained that Ms. Harris-Smith held herself out as
practicing law in Maryland and failed to advise clients that she limited her legal
representation of them to specific bankruptcy matters. Harris-Smith, 356 Md. at 83, 737
A.2d at 573. In addition, we explained that the fact that Ms. Harris-Smith met with
clients for the purpose of “triage” or “prescreening” further constituted the unauthorized
practice of law. We stated:
In determining that a bankruptcy proceeding in the Maryland District is the
appropriate remedy for the client’s problem, Harris-Smith was
professionally required to review the facts and to decide the appropriate
course of action, e.g., to determine whether there were any contract
defenses to the claims of the principal creditors. There is a danger that
lawyers in the position in which Harris-Smith placed herself would be
motivated to cant advice artificially in the safe direction. Further, there is
always the danger that the operation of the triage by the unadmitted
attorney, from an office for the general practice of law in Maryland, will be
used as a shield behind which to conduct an unlimited-in-fact law practice.
356 Md. at 84, 737 A.2d at 573 (citations and quotations omitted).
Similarly, in Attorney Grievance Commission v. Johnson, 363 Md. 598, 625, 770
A.2d 130, 146 (2001), we concluded that Mr. Johnson, who asserted that he maintained a
solely federal practice out of his law office located in Maryland, engaged in the
unauthorized practice of law when he “met with clients in a Maryland office and advised
clients in that office.” In addition, Mr. Johnson “misled the public, as well as his clients,
(...continued)
allegation of a deliberate and willful intent to violate the unauthorized practice Rule, where
cases are brought only in federal court and no clients are represented in State court.”).
Nonetheless, it is the totality of Respondent’s other actions, not related to the federal court
case, that persuade us that she engaged in the unauthorized practice of law.
35
by not including his jurisdictional limitations on the firm’s letterhead, which bore only a
Maryland address.” Id. We explained that Mr. Johnson “placed himself within the
proper reach of our disciplinary investigatory authority under MLRPC 8.5(b)” because
“he maintained an office in Maryland where he met clients, made phone calls to clients
from his Maryland home, executed retainer agreements in Maryland, and ‘routinely’ sent
out correspondence on letterhead that indicated a Maryland office but did not indicate
[his] jurisdictional limitations.” Johnson, 363 Md. at 628, 770 A.2d at 148.
Based on the facts as established before the hearing judge in this matter,
Respondent engaged in activities similar to those in Harris-Smith and Johnson. She
practiced law from a law office in Beltsville, Maryland. She failed at all times to disclose
that she was unlicensed to practice law in Maryland, including on the firm’s letterhead.
She met with clients, signed retainer agreements, and explained the services offered by
Glenmore. She requested documents from clients, and signed “Cease and Desist” letters
sent to various banking institutions on behalf of Glenmore clients as “Tawana Shephard,
Attorney at Law,” again without disclosing her jurisdictional limitations. Based on these
facts, we conclude that, in engaging in these activities, Respondent “was professionally
required to review the facts and to decide the appropriate course of action” for the clients.
Harris-Smith, 356 Md. at 84, 737 A.2d at 573. This, we have determined, constitutes the
unauthorized practice of law. Moreover, we note that these activities rise above the level
of “incidental contact” that Respondent suggests. Taken together, her actions and
responsibilities constituted the unlicensed practice of law in the state of Maryland, in
36
violation of MLRPC 5.5.
As the objective of attorney disciplinary proceedings is the protection of the
public, the public’s perception is vitally important within this inquiry. See Hallmon, 343
Md. at 397, 681 A.2d at 514 (“The purpose of Rule 5.5 ‘is to protect the public from
being preyed upon by those not competent to practice law—from incompetent, unethical,
or irresponsible representation.’”); Attorney Grievance Comm’n v. Harper & Kemp, 356
Md. 53, 64, 737 A.2d 557, 563 (1999) (stating that where a lawyer “furnished his name to
the enterprise[,] . . . [f]rom the standpoint of the public Kemp was Harper’s partner.”). In
this case, from the standpoint of the public, it would be reasonable to believe that an
individual introduced as the managing attorney of a firm with its main location in
Maryland was authorized to practice law in Maryland, was responsible for the
management of the attorneys at the law firm, and was the attorney who actually managed
the law firm. Respondent could have (and indeed should have) informed the clients of
her jurisdictional limitations, but she did not. See Attorney Grievance Comm’n v.
Maignan, 423 Md. 191, 203, 31 A.3d 467, 474 (2011) (stating that an attorney’s “failure
to notify his client of [his] suspension [from the practice of law] serves as a ground for a
violation of Rule 5.5(a)”); Attorney Grievance Comm’n v. Awuah, 374 Md. 505, 521, 823
A.2d 651, 661-62 (2003) (concluding that an attorney violated Rule 5.5 where, following
his suspension from the practice of law in Maryland, his legal letterhead and business
cards made “no mention of his privilege to practice having been suspended in Maryland
nor that his practice was limited solely to immigration law”).
37
Rule 8.4(d) (Misconduct)
MLRPC 8.4(d) provides that “[i]t is professional misconduct for a lawyer to . . .
engage in conduct that is prejudicial to the administration of justice.” “An act prejudicial
to the administration of justice is one that ‘tends to bring the legal profession into
disrepute.’” Attorney Grievance Comm’n v. Goodman, 426 Md. 115, 128, 43 A.3d 988,
995 (2012) (quoting Attorney Grievance Comm’n v. Rose, 391 Md. 101, 111, 892 A.2d
469, 475 (2006)). “We have long recognized that the commingling of personal and client
funds is conduct which erodes public confidence in the legal profession, in violation of
MRPC 8.4(d).” Attorney Grievance Comm’n v. Carithers, 421 Md. 28, 56, 25 A.3d 181,
198 (2011).
Here, the hearing judge concluded that Respondent violated MLRPC 8.4(d) based
upon the mishandling of the trust account over which she exercised supervisory authority.
Respondent excepts to this conclusion based on her exceptions to the other findings and
conclusions related to the trust account. For the reasons we overruled Respondent’s other
exceptions, we shall overrule this exception as well. The facts of this case demonstrate
that multiple client payments of unearned attorneys’ fees were not deposited into the
firm’s attorney trust account. In addition, clients paid fees for work that was never
performed without receiving refunds. Because Respondent was responsible for the firm’s
trust account and issuing refunds to clients, we conclude that under the circumstances, her
failure to manage the trust account adversely affected the public’s perception of the legal
profession. See Attorney Grievance Comm’n v. Mungin, 439 Md. 290, 315, 96 A.3d 122,
38
136 (2014) (concluding that Mungin violated MLRPC 8.4(d) where he “was out of trust
in each of the nine client matters, and failed to properly account for and disburse funds in
a prompt fashion”). Accordingly, we conclude that Respondent violated MLRPC 8.4(d).
Md. Rule 16-606.1 (Attorney Trust Account Record-Keeping)
Maryland Rule 16-606.1 requires that trust account records “shall be created and
maintained for the receipt and disbursement of funds of clients or of third persons.” The
hearing judge concluded that Respondent violated Rule 16-606.1 based on Respondent’s
admission that accounting errors had occurred.18 In Judge White’s (and Petitioner’s)
view, Respondent’s acknowledgment of accounting errors would have precluded her from
properly maintaining the records required by Md. Rule 16-606.1.
Respondent excepts to this conclusion, arguing that there was insufficient evidence
to conclude that she did not keep the required records in violation of Rule 16-606.1.
First, she argues that the evidence was insufficient because the account records
themselves were not produced at the hearing. She states that she was unable to present
the records because she had departed Glenmore before the firm’s demise. Nevertheless,
she testified at the hearing that the records were in fact kept. She further argues that the
18
The hearing judge also concluded that Glenmore’s trust account was not properly
designated in breach of Maryland Rule 16-606. “Rule 16–606 is quite clear; it requires that
all attorney trust accounts be designated in one of three manners[,]” namely, “Attorney Trust
Account,” “Attorney Escrow Account,” or “Client Funds Account.” Attorney Grievance
Comm’n v. Ross, 428 Md. 50, 80-81, 50 A.3d 1166, 1183 (2012) (quoting Attorney
Grievance Comm’n v. Ellison, 384 Md. 688, 708, 867 A.2d 259, 271 (2005)). Glenmore’s
account was simply labeled “Glenmore Law Firm, PLLC, IOLTA,” which is impermissible
under the Rule. See id. Petitioner, however, did not charge Respondent with violating Md.
Rule 16-606.
39
“[m]ishandling of funds does not establish . . . that the records were not maintained.” We
agree that the mishandling of client funds does not, without more, prove that a lawyer
with responsibility for the maintenance of an attorney trust account violated Md. Rule 16-
606.1. Nonetheless, based upon our independent review of the record, we agree with the
hearing judge’s ultimate conclusion. Respondent testified that she was responsible for the
maintenance of Glenmore’s attorney trust account and that she gave instructions to
Glenmore’s accounting department, reviewed the account records, and made efforts to
correct the records when she encountered errors. Multiple client payments did not have
corresponding entries in the bank statements for the trust account produced at the hearing.
With the exception of one payment, which an invoice demonstrated was placed in the law
firm’s operating account, Respondent was unable to explain or identify where those
payments were deposited and/or recorded. See Attorney Grievance Comm’n v. Harmon,
433 Md. 612, 625, 72 A.3d 555, 563 (2013) (concluding that Harmon’s inability to
determine the correct source of client funds in his attorney trust account, as well as his
failure to produce records to Bar Counsel, indicated that he failed to keep adequate
records in violation of Maryland Rule 16-606.1); Attorney Grievance Comm’n v. Van
Nelson, 425 Md. 344, 361, 40 A.3d 1039, 1048 (2012) (concluding that the respondent
violated Maryland Rule 16-606.1 where he “did not maintain a record of the deposits of
the retainer fees that he did not deposit into a trust account”). We are unpersuaded by
Respondent’s arguments and apparent excuses for failing to produce the records or satisfy
her burden of proof. See Md. Rule 16-757(b) (“A respondent who asserts an affirmative
40
defense or a matter of mitigation or extenuation has the burden of proving the defense or
matter by a preponderance of the evidence.”). As the attorney in charge of the trust
account, she had a duty to create, or cause to be created, and maintain adequate client
ledgers. The evidence in the record demonstrates that she did not do so. We overrule
Respondent’s exception.
Rule 5.1 and BOP § 10-306
The hearing judge concluded that Respondent did not violate MLRPC 5.1 because
she did not supervise lawyers and BOP § 10-306 because there was no evidence that she
personally misused trust money. Neither party has taken exception to the hearing judge’s
conclusions with regard to these allegations. Based on the facts as presented above, we
agree with the hearing judge’s conclusion.
SANCTION
“It is well settled that our obligation in disciplinary matters is to protect the public
and maintain the public’s confidence in the legal system rather than to punish the attorney
for misconduct.” Attorney Grievance Comm’n v. Nichols, 405 Md. 207, 217, 950 A.2d
778, 785 (2008) (quoting Attorney Grievance Comm’n v. Ward, 394 Md. 1, 32-33, 904
A.2d 477, 496 (2006)). “Imposing a sanction protects the public interest because it
demonstrates to members of the legal profession the type of conduct which will not be
tolerated.” Attorney Grievance Comm’n v. Mooney, 359 Md. 56, 96, 753 A.2d 17, 38
(2000) (citations and quotations omitted). The sanction imposed depends on the facts and
circumstances of each case, and in arriving at an appropriate sanction, “we consider the
41
nature of the ethical duties violated in light of any aggravating or mitigating
circumstances.” Attorney Grievance Comm’n v. Paul, 423 Md. 268, 284, 31 A.3d 512,
522 (2011). Accordingly, the sanction should be “commensurate with the nature and
gravity of the violations and the intent with which they were committed.” Attorney
Grievance Comm’n v. Stein, 373 Md. 531, 537, 819 A.2d 372, 375 (2003).
Although Respondent is not an attorney admitted to practice in Maryland, non-
Maryland attorneys engaging in the unauthorized practice of law in Maryland can be
sanctioned by this Court. See MLRPC 8.5(a)(2) (“A lawyer not admitted to practice in
this State is also subject to the disciplinary authority of this State if the lawyer (i) provides
or offers to provide any legal services in this State, [or] (ii) holds himself or herself out as
practicing law in this State[.] . . .”). Based upon the list of violations in this case,
Petitioner recommends that Respondent be disbarred. At oral argument before this Court,
counsel for Respondent suggested that a reprimand or a definite suspension between 30
and 60 days would be more appropriate.
In unauthorized practice of law cases, “we primarily consider[] factors of
deterrence, whether the respondent’s conduct was wilful and deliberate, and whether the
respondent cooperated with Bar Counsel’s investigation.” Attorney Grievance Comm’n v.
Shryock, 408 Md. 105, 126, 968 A.2d 593, 605 (2009). In support of its recommended
sanction of disbarment, Bar Counsel cites Attorney Grievance Commission v. Alsafty, 379
Md. 1, 838 A.2d 1213 (2003) and Attorney Grievance Commission v. Barneys, 370 Md.
566, 805 A.2d 1040 (2002), cases in which this Court applied those factors and disbarred
42
lawyers who had engaged in the unauthorized practice of law and other serious
intentional misconduct.
In Barneys, the respondent, who was barred in several states and federal courts but
not barred in Maryland, opened a law office and began representing clients in Maryland,
to include entering his appearance in at least five cases in Maryland state courts.
Barneys, 370 Md. at 571-72, 805 A.2d at 1043. In addition to finding that Barneys
engaged in the unauthorized practice of law, the hearing judge in that case concluded that
Barneys engaged in multiple instances of dishonest and deceitful conduct. Barneys, 370
Md. at 574, 805 A.2d at 1044. Similarly, Alsafty involved an attorney licensed to practice
in New York and before some federal courts, who maintained a law practice in Baltimore,
Maryland, consisting of domestic, civil, bankruptcy and immigration cases. Alsafty, 379
Md. at 6, 838 A.2d at 1216. From his office in Baltimore, Alsafty held himself out as a
Maryland attorney and provided “no indication on [his] stationary or [his] business cards
that [his] practice was limited to federal courts.” Id. Indeed, the disciplinary proceedings
arose out of a client complaint relating to a civil case filed in Maryland state court.
Alsafty, 379 Md. at 8, 838 A.2d at 1217. In deciding that disbarment was the appropriate
sanction in that case, we explained:
A sanction of disbarment, using the logic of Barneys, would certainly serve
the purpose of deterrence. Although there was a federal overlay in this case,
the facts found indicate that it does not negate the respondent’s wilful and
intentional violation of the unauthorized practice rules. Indeed, the
respondent was found to have begun his practice both in Maryland and in
the federal court before he had been admitted by the federal court and that,
even after admission to the federal court, he continued to practice in the
43
State court without license to do so and without apprising prospective
clients that he was restricted to practicing only in federal court. For the
same reasons just stated, the respondent is not assisted by the third factor.
The fourth factor does not assist the respondent either. To the extent that he
refrained from practicing in State court, he only did so after the fact of his
unauthorized practice had come to light. But the respondent did not stop
practicing right away. The hearing court determined that he continued to
practice after February 13, 2002, when, according to his testimony, he knew
he was not allowed to practice law in Maryland.
Nor is the respondent assisted by the distinction this Court has drawn
between intentional dishonest conduct and negligently dishonest conduct. In
this case, the respondent was found to have made misrepresentations,
engaged in conduct characterized by dishonesty, fraud and deceit and even
to have engaged in criminal conduct. Rather than characterize the
respondent’s conduct in a manner favorable to a mitigated sanction, the
hearing court expressed itself strongly in stating its disbelief of the
respondent’s explanations and in characterizing them as non-forthcoming
attempts to mislead.
Alsafty, 379 Md. at 19-20, 838 A.2d at 1224.
We note that both of these cases involved an unlicensed attorney’s appearance in
state court actions and intentional deceitful or dishonest conduct in violation of 8.4(b) and
(c). Alsafty, 379 Md. at 10-14, 838 A.2d at 1218-21; Barneys, 370 Md. at 574, 805 A.2d
at 1044. By contrast, in this case, Respondent did not appear in state court on behalf of
any client, nor has Respondent been found to have violated MLRPC 8.4(b) or (c). In
addition, though the facts of this case demonstrate neither a failure to cooperate with Bar
Counsel nor wilful and deliberate dishonest or deceitful behavior, it is clear that
Respondent wilfully and deliberately assumed responsibilities as a “Managing Attorney”
in a law firm in Maryland, met with clients in Maryland, and undertook the representation
of those clients in Maryland. In doing so, she misled clients and the general public by
44
failing to disclose the fact that she was not licensed to practice law in Maryland. Further,
during Respondent’s tenure as “Managing Attorney,” several clients paid fees to Gilmore
and did not receive the services that they were promised. As an attorney with 18 years of
experience, albeit practicing in other states, we would expect Respondent to understand
the nature of her actions and the responsibilities related thereto. Moreover, as Petitioner
pointed out, Respondent applied for admission to the Maryland Bar at some point during
her tenure with Glenmore, indicating her awareness that she required a license to practice
law in this State.
At oral argument before this Court, counsel for Respondent urged us to rely on
Attorney Grievance Commission v. Barton, 442 Md. 91, 110 A.3d 668 (2015), a case
factually similar to this one. Barton involved a similar bevy of alleged violations, arising
out of “a lack of competence and diligence” as well as “a pattern of client neglect and a
failure to properly supervise nonlawyer employees.” Barton, 442 Md. at 148, 110 A.3d at
701. In addition to Ms. Barton’s failure to supervise her nonlawyer colleague, Ms. Barton
was also responsible for assisting a nonlawyer in the unauthorized practice of law, in
violation of 5.5(a). Noting the substantial mitigation in Ms. Barton’s case–50 pro bono
cases and a second job to try to make restitution to the victims of her nonlawyer assistant–
we determined that a sanction of indefinite suspension was appropriate. Barton, 442 Md.
at 147, 150, 110 A.3d at 701, 702.
In response, Petitioner argued that Respondent’s misconduct is more egregious
than that present in Barton, and therefore Respondent should receive a sanction more
45
severe than an indefinite suspension. Under the circumstances, we agree. Not only did
the hearing judge make no findings as to mitigation, but, as Petitioner points out,
Respondent engaged in a variety of misconduct. Respondent’s misconduct stems from
her ineffective supervision of the firm’s attorney trust account and her engagement in the
unauthorized practice of law in Maryland. Although Respondent maintains that her
misconduct was unintentional, in some instances her misconduct led to harmful
consequences to clients, and that harm was not remedied. By inadequately supervising
the attorney trust account, Respondent harmed clients in failing to ensure that unearned
attorneys’ fees were being held in trust, and by failing to issue refunds when work was
not performed. In addition, though Respondent signed retainer agreements promising
services to clients and initial letters on behalf of clients in furtherance of those promised
services, several clients’ matters were either not completed or not undertaken at all.
Finally, one crucial feature of the instant case is Respondent’s role as “Managing
Attorney.” When an attorney engages in managerial conduct like Respondent’s, from
which a reasonable client could conclude that the attorney is in some real way responsible
for the client’s matter and the legal matters of the firm generally, then that attorney has
adopted a significant set of responsibilities. That Respondent took no reasonable steps to
ensure that client matters were handled correctly is a serious violation. As noted, in cases
involving the unauthorized practice of law, one of the factors we consider is deterrence.
Here the misconduct evolved from an arrangement between an unlicensed attorney and a
nonlawyer, whereby the unlicensed attorney agreed to manage a law firm for the
46
nonlawyer. Although the primary duties and responsibilities of the unlicensed lawyer
related to the management of the law firm’s attorney trust accounts, Respondent’s
ineffective management led to the firm’s deposit of unearned client fees into the firm’s
operating account before performing any meaningful client services. Taking all of this
into account, the appropriate sanction is disbarment.
IT IS SO ORDERED; RESPONDENT
SHALL PAY ALL COSTS AS TAXED BY
THE CLERK OF THIS COURT,
INCLUDING THE COSTS OF ALL
TRANSCRIPTS, PURSUANT TO RULE 16-
761, FOR WHICH SUM JUDGMENT IS
ENTERED IN FAVOR OF THE
ATTORNEY GRIEVANCE COMMISSION
AGAINST TAWANA D. SHEPHARD.
47
Circuit Court for Baltimore City
Case No. 24-C-14-003643
Argued: May 6, 2015
IN THE COURT OF APPEALS
OF MARYLAND
AG No. 22
September Term, 2014
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
TAWANA D. SHEPHARD
Barbera, C.J.
*Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
Dissenting opinion by McDonald, J., as to
sanction
Filed: August 6, 2015
*Harrell, J., now retired, participated in the
hearing and conference of the 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.
I have no problem with the very fine opinion of the Majority which carefully reviews
the record to determine the extent of Ms. Shephard’s misconduct. I disagree only as to
sanction. In my view, given the similarity of this case to our recent decision in Attorney
Grievance Comm’n v. Barton, 442 Md. 91, 110 A.3d 668 (2015), a suspension would be
more appropriate than disbarment.
1