Attorney Grievance Commission v. McDowell , 439 Md. 26 ( 2014 )

Attorney Grievance Comm’n v. Matthew John McDowell & John Stephen Burson, Misc.
Docket AG No. 50, September Term, 2012
ATTORNEY DISCIPLINE – SANCTIONS – REPRIMAND – Court of Appeals
reprimanded lawyer who “robo-signed” large number of foreclosure-related documents.
Such conduct violated Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”)
8.4(d) (Conduct That Is Prejudicial to Administration of Justice) and 8.4(a) (Violating
MLRPC).
ATTORNEY DISCIPLINE – SANCTIONS – REPRIMAND – Court of Appeals
reprimanded managing partner who made no efforts to ensure that law firm had in effect
measures giving reasonable assurance that lawyers did not robo-sign documents and that
notaries public did not falsely notarize documents. Such conduct violated MLRPC 5.1(a)
(Responsibilities of Partners, Managers, and Supervisory Lawyers), 5.3(a)
(Responsibilities Regarding Nonlawyer Assistants), and 8.4(a) (Violating MLRPC).
Circuit Court for Montgomery County
Case No. 28110-M
Argued: April 29, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 50
September Term, 2012
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
MATTHEW JOHN MCDOWELL & JOHN
STEPHEN BURSON
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: June 19, 2014
This attorney discipline proceeding involves a lawyer who “robo-signed” a large
number of foreclosure-related documents, 1 and the managing partner of the law firm at
which the robo-signing occurred.
While John Stephen Burson (“Burson”), Respondent, a member of the Bar of
Maryland, was the managing partner of the law firm that is now Shapiro Brown & Alt,
LLP (“the Shapiro Firm”), 2 Matthew John McDowell (“McDowell”), Respondent, a
member of the Bar of Maryland and a lawyer at the Shapiro Firm, signed trustee’s deeds 3
and affidavits on behalf of William M. Savage (“Savage”), another lawyer and partner at
the Shapiro Firm. At the Shapiro Firm, paralegals (who were also notaries public)
notarized the trustee’s deeds and affidavits. Although McDowell had signed the trustee’s
deeds and affidavits outside the paralegals’ presence, the notary jurats stated that the
trustee’s deeds and affidavits had been signed in the paralegals’ presence. The robo-
signing and notarizations at the Shapiro Firm came to the attention of the Attorney
1
“‘Robo-signing’ most often refers to the process of mass-producing affidavits for
foreclosures without having knowledge of or verifying the facts. ‘Robo-signing’ may
also refer to the mass-production of affidavits that the affiant did not sign.” Attorney
Grievance Comm’n v. Geesing, 436 Md. 56, 58 n.1, 80 A.3d 718, 719 n.1 (2013)
(quoting Attorney Grievance Comm’n v. Dore, 433 Md. 685, 688-89, 711, 73 A.3d 161,
163, 176 (2013) (ellipsis and some internal quotation marks omitted). As discussed
below, this attorney discipline proceeding involves the latter type of robo-signing.
2
The Shapiro Firm was originally named “Shapiro & Burson”; later became
“Shapiro & Burson, LLP”; and still later became “Shapiro Brown & Alt, LLP.”
3
Through a trustee’s deed, a substitute trustee conveys title of a foreclosed
property to the entity that purchased the foreclosed property at a foreclosure sale. After a
trial court ratifies the foreclosure sale, the trustee’s deed is recorded among the land
records. “[A]ny failure [by the trustee’s deed] to comply with [] formal requisites[,]” such
as an improper affidavit of consideration, “has no effect unless [the trustee’s deed] is
challenged in a judicial proceeding commenced within six months after [the trustee’s
deed] is recorded.” Md. Code Ann., Real Prop. (1974, 2010 Repl. Vol.) § 4-109(b).
Grievance Commission (“the Commission”), Petitioner.
On October 17, 2012, on the Commission’s behalf, Bar Counsel filed in this Court
a “Petition for Disciplinary or Remedial Action” against Burson and McDowell, charging
Burson with violating Maryland Lawyers’ Rule of Professional Conduct (“MLRPC”) 5.1
(Responsibilities of Partners, Managers, and Supervisory Lawyers) and 5.3
(Responsibilities Regarding Nonlawyer Assistants); charging McDowell with violating
MLRPC 5.2(a) (Responsibilities of a Subordinate Lawyer); 4 and charging Burson and
McDowell with violating MLRPC 1.1 (Competence) and 8.4 (Misconduct).
On October 22, 2012, this Court designated the Honorable Marielsa A. Bernard
(“the hearing judge”) of the Circuit Court for Montgomery County to hear this attorney
discipline proceeding. On July 9, 2013, the hearing judge conducted a hearing. On
September 27, 2013, the hearing judge filed in this Court an opinion including findings of
fact and conclusions of law that McDowell had not violated any MLRPC and that
Burson: had violated MLRPC 5.1(a) and 5.3(a); had not violated MLRPC 1.1, 5.3(b), or
8.4; 5 was not vicariously responsible for McDowell’s conduct under MLRPC 5.1(c); and
4
MLRPC 5.2(a) states: “A lawyer is bound by the [MLRPC] notwithstanding that
the lawyer acted at the direction of another person.” In other words, MLRPC 5.2(a)
establishes that it is not a defense to a violation of another MRLPC that a lawyer was
following orders. Thus, technically speaking, a lawyer cannot violate MLRPC 5.2(a)
itself.
5
The hearing judge did not determine whether Burson had violated MLRPC
5.1(b); the hearing judge stated that, in the Petition for Disciplinary or Remedial Action,
the Commission did “not allege that [] Burson failed to supervise [] Savage[.]” The
hearing judge’s statement is accurate, and the Commission does not dispute that it did not
charge Burson with violating MLRPC 5.1(b). Thus, below, we do not determine whether
Burson violated MLRPC 5.1(b).
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was not vicariously responsible for the paralegals’ conduct under MLRPC 5.3(c).
On April 29, 2014, we heard oral argument. For the below reasons, we reprimand
Burson and McDowell.
BACKGROUND
In her opinion, the hearing judge found the following facts, which we summarize.
In 1985, this Court admitted Burson to the Bar of Maryland. In June 1985, Burson
helped form the Shapiro Firm, which represented mortgagees in foreclosure actions in
Maryland and Virginia. Burson was the Shapiro Firm’s managing partner.
On December 12, 2001, this Court admitted McDowell to the Bar of Maryland. In
2009 (for present purposes), McDowell began working for the Shapiro Firm. 6 Savage
was McDowell’s supervisor. At Savage’s direction and over the relevant period of time,
McDowell reviewed for accuracy trustee’s deeds and affidavits in approximately 900
foreclosure actions and signed the trustee’s deeds and affidavits on Savage’s behalf. The
affidavits contained averments regarding facts that trial courts had already found (e.g.,
that the mortgagors were not serving in the military). McDowell had the legal knowledge
that was reasonably necessary to review for accuracy the trustee’s deeds and affidavits.
McDowell was conscientious in reviewing for accuracy the trustee’s deeds and affidavits;
McDowell did not make any errors in doing so, and none of the trustee’s deeds were
defective or challenged in court. McDowell believed (albeit mistakenly) that it was not
improper to sign trustee’s deeds and affidavits on Savage’s behalf. Burson neither
6
McDowell had previously worked for the Shapiro Firm from January 2002
through September 2004.
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ordered nor ratified McDowell’s conduct.
At the Shapiro Firm, paralegals (who were also notaries public) notarized the
trustee’s deeds and affidavits that McDowell had signed on Savage’s behalf. Although
McDowell had signed the trustee’s deeds and affidavits outside the paralegals’ presence,
the notary jurats stated that the trustee’s deeds and affidavits had been signed in the
paralegals’ presence. Burson neither ordered nor ratified the paralegals’ conduct; at the
hearing, Burson testified that he believed that the notarizations at the Shapiro Firm did
not violate Virginia law. 7
Sometime in or before 2010, two other lawyers at the Shapiro Firm signed each
other’s names on foreclosure-related documents. Various circuit courts issued show
cause orders regarding the lawyers’ signatures.
In 2011, Burson learned that McDowell had signed trustee’s deeds and affidavits
on Savage’s behalf outside the paralegals’ presence. Until then, Burson had made no
efforts to ensure that the Shapiro Firm had in effect measures giving reasonable assurance
that lawyers did not robo-sign documents and that paralegals did not falsely notarize
documents. After learning that McDowell had signed trustee’s deeds and affidavits on
7
Va. Code Ann. § 55-118.3 (1970) states:
The person taking an acknowledgment shall certify that: (1) The person
acknowledging appeared before him and acknowledged he executed the
instrument; and (2) The person acknowledging was known to the person
taking the acknowledgment or that the person taking the acknowledgment
had satisfactory evidence that the person acknowledging was the person
described in and who executed the instrument.
(Paragraph breaks omitted).
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Savage’s behalf outside the paralegals’ presence, Burson made timely good faith efforts
to rectify the misconduct’s consequences and to prevent future misconduct by ensuring
that McDowell’s past signing of the trustee’s deeds on Savage’s behalf neither created
any problems as to title nor necessitated that the trustee’s deeds be executed again,
requiring all employees at the Shapiro Firm to promise in writing that they would neither
sign others’ names nor allow others to sign their names, and requiring all notaries public
at the Shapiro Firm to promise in writing that they would not violate laws regarding
notarizations.
Burson is respected for his integrity. As a result of the robo-signing at the Shapiro
Firm, Burson was sued, received adverse media coverage, voluntarily stopped the active
practice of law, and withdrew from the Shapiro Firm, which no longer bears his name.
Burson and McDowell have never before received attorney discipline. In the
matter before us, they lacked dishonest or selfish motives, were cooperative with Bar
Counsel, and showed remorse.
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of
law. See Md. R. 16-759(b)(2)(B) (“The Court [of Appeals] shall give due regard to the
opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney
Grievance Comm’n v. Reno, 436 Md. 504, 508, 83 A.3d 781, 783 (2014) (“[T]his Court
reviews for clear error a hearing judge’s findings of fact[.]” (Citations omitted)); Md. R.
16-759(b)(1) (“The Court of Appeals shall review de novo the [hearing] judge’s
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conclusions of law.”). This Court determines whether clear and convincing evidence
establishes that a lawyer violated the MLRPC. See Md. R. 16-757(b) (“The
[Commission] has the burden of proving the averments of the petition [for disciplinary or
remedial action] by clear and convincing evidence.”).
DISCUSSION
(A) Findings of Fact
Burson and McDowell state that they do not except to any of the hearing judge’s
findings of fact.8 The Commission excepts to the hearing judge’s finding that, at the
hearing, Burson testified that he believed that the notarizations at the Shapiro Firm did
not violate Virginia law.
We need not rule on the exception; as Burson’s counsel conceded at oral
argument, the hearing judge’s other findings of fact establish that the notarizations at the
Shapiro Firm were false, regardless of whether Burson believed that the notarizations at
the Shapiro Firm did not violate Virginia law. Specifically, the hearing judge found that,
although McDowell had signed the trustee’s deeds and affidavits outside the paralegals’
presence, the notary jurats stated that the trustee’s deeds and affidavits had been signed in
8
Although Burson does not label his allegation as an exception to the hearing
judge’s findings of fact, Burson alleges that, before 2011, he orally forbade lawyers at the
Shapiro Firm from robo-signing. Burson testified in support of this contention at the
hearing, but Burson’s allegation does not appear in the hearing judge’s opinion; indeed,
the hearing judge expressly found that, before Burson learned that McDowell had signed
trustee’s deeds and affidavits on Savage’s behalf, “Burson did not take any preventative
action” and “took no measures to ensure that [robo-signing] did not” occur. To the extent
that Burson’s allegation constitutes an exception to the hearing judge’s findings of fact,
we overrule the exception because we “give due regard to the opportunity of the hearing
judge to assess the credibility of witnesses.” Md. R. 16-759(b)(2)(B).
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the paralegals’ presence. Although Va. Code Ann. § 55-118.3 permits a notary public to
notarize a document that has been signed outside the notary public’s presence, Virginia
law does not permit a notary public to falsely represent that a document has been signed
in the notary public’s presence.
(B) Conclusions of Law
Burson does not except to any of the hearing judge’s conclusions of law.
Originally, McDowell did not except to any of the hearing judge’s conclusions of law,
but the Commission excepted to the hearing judge’s conclusion that McDowell had not
violated MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation). Later,
however, McDowell and the Commission filed in this Court a “Joint Petition for
Reprimand by Consent” in which McDowell and the Commission agree that McDowell
violated MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice).
MLRPC 1.1 (Competence)
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” MLRPC 1.1.
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that Burson had violated MLRPC 1.1. Nothing in the hearing
judge’s findings of fact indicates that Burson failed to provide competent representation
to any client.
The hearing judge was correct in concluding that clear and convincing evidence
did not establish that McDowell had violated MLRPC 1.1. McDowell had the legal
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knowledge that was reasonably necessary to review for accuracy trustee’s deeds and
affidavits. McDowell was conscientious in reviewing for accuracy the trustee’s deeds
and affidavits, and McDowell did not make any errors in doing so. Although McDowell
signed the trustee’s deeds on Savage’s behalf, none of the trustee’s deeds were defective
or challenged timely in court.
MLRPC 8.4(b) (Criminal Act)
“It is professional misconduct for a lawyer to . . . commit a criminal act that
reflects adversely on the lawyer’s honesty, trustworthiness or fitness as a lawyer in other
respects[.]” MLRPC 8.4(b).
It is a crime to “willfully make a false entry in a public record[.]” Md. Code Ann.,
Crim. Law (2002, 2012 Repl. Vol.) (“CR”) § 8-606(b)(1). Additionally, it is a crime to
“willfully and falsely make an oath or affirmation as to a material fact . . . in an affidavit
required by any state, federal, or local law[.]” CR § 9-101(a)(2).
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that McDowell had violated MLRPC 8.4(b). Although
McDowell signed trustee’s deeds and affidavits on Savage’s behalf, none of the trustee’s
deeds were defective, and the affidavits contained averments regarding facts that trial
courts had already found; thus, the signatures did not render the trustee’s deeds and
affidavits “false entr[ies]” under CR § 8-606(b)(1). Because the affidavits contained
averments regarding facts that trial courts had already found, that McDowell signed the
affidavits was obviously not “material” under CR § 9-101(a)(2) for purposes of
determinations by trial courts.
-8-
8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
“It is professional misconduct for a lawyer to . . . engage in conduct involving
dishonesty, fraud, deceit[,] or misrepresentation[.]” MLRPC 8.4(c).
Here, we refrain from reviewing the hearing judge’s conclusion that McDowell
had not violated MLRPC 8.4(c). As noted above, originally, the Commission had
excepted to the hearing judge’s conclusion that McDowell had not violated MLRPC
8.4(c); later, however, McDowell and the Commission filed in this Court the Joint
Petition for Reprimand by Consent, which contains a stipulation that McDowell violated
MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice), but does
not contain a stipulation that McDowell violated MLRPC 8.4(c) (Dishonesty, Fraud,
Deceit, or Misrepresentation). At oral argument, Bar Counsel stated that the Commission
had not officially withdrawn its exception to the hearing judge’s conclusion that
McDowell had not violated MLRPC 8.4(c). Nonetheless, Bar Counsel made it clear that
the Commission recommends that we reprimand McDowell based on his violation of
MLRPC 8.4(d), regardless of any conclusion as to whether McDowell also violated
MLRPC 8.4(c). At oral argument, McDowell’s counsel advised that he believed that the
Commission had withdrawn its exception to the hearing judge’s conclusion that
McDowell had not violated MLRPC 8.4(c).
Although we acknowledge the position that Bar Counsel took at oral argument, it
is highly unlikely that McDowell would have conceded that he had violated MLRPC
8.4(d) (which the hearing judge concluded that McDowell had not violated) had
McDowell not believed that the Commission had withdrawn its exception to the hearing
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judge’s conclusion that he had not violated MLRPC 8.4(c). For purposes of our review,
we are satisfied that—by filing the Joint Petition for Reprimand by Consent based only
on a violation of MLRPC 8.4(d), regardless of the outcome of any exception to the
hearing judge’s conclusion that McDowell had not violated MLRPC 8.4(c)—the
Commission has essentially engaged in a de facto withdrawal of its exception to the
hearing judge’s conclusion that McDowell had not violated MLRPC 8.4(c). Although
this Court has the discretion to do so, “[o]rdinarily, we will not look for additional
violations where [the Commission] filed no exceptions.” Attorney Grievance Comm’n v.
Geesing, 436 Md. 56, 63 n.6, 80 A.3d 718, 722 n.6 (2013) (alteration in original)
(quoting Attorney Grievance Comm’n v. Dore, 433 Md. 685, 707, 73 A.3d 161, 174
(2013)). For example, in Geesing, 436 Md. at 63 n.6, 80 A.3d at 722 n.6, and Dore, 433
Md. at 707, 73 A.3d at 174, attorney discipline proceedings that involved robo-signing,
this Court refrained from reviewing hearing judges’ conclusions that lawyers had not
violated MLRPC 8.4(c) where the Commission did not except to the same. Consistent
with Geesing and Dore, here, we refrain from reviewing the hearing judge’s conclusion
that McDowell had not violated MLRPC 8.4(c).
MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice)
“It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice[.]” MLRPC 8.4(d). Generally, a lawyer
violates MLRPC 8.4(d) where the lawyer’s conduct negatively “impacts . . . the public’s
perception . . . of the . . . legal profession.” Geesing, 436 Md. at 65, 80 A.3d at 723
(quoting Dore, 433 Md. at 696, 73 A.3d at 167) (internal quotation marks omitted).
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For example, in Geesing, 436 Md. at 65, 58, 80 A.3d at 723, 719, this Court held
that a lawyer had violated MLRPC 8.4(d) by “negative[ly] impact[ing] . . . the public’s
perception of the legal profession” where the lawyer had “authorized [staff members] . . .
to sign his name on documents—including affidavits—in foreclosure filings[, and had]
instructed the staff members (who were also notaries public) to notarize the affidavits,
even though he had not signed them.” This Court noted that the robo-signing had, among
other consequences, “caused significant media coverage” and “prompted certain
mortgagors to file several lawsuits arising out of the robo-signing against” the lawyer and
the law firm. Id. at 65, 80 A.3d at 723.
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that Burson had violated MLRPC 8.4(d). Burson did not
participate in, or know of, the robo-signing at the Shapiro Firm. Thus, Burson’s conduct
is distinguishable from that of the lawyer who participated in robo-signing in Geesing, id.
at 58, 80 A.3d at 719. The sole basis for concluding that Burson violated MLRPC 8.4(d)
would be that he made no efforts to ensure that the Shapiro Firm had in effect measures
giving reasonable assurance that lawyers did not robo-sign documents and that notaries
public did not falsely notarize documents. Although, under some circumstances, a
supervisor’s failure to take reasonable preventative measures may constitute a violation
of MLRPC 8.4(d), here, the existence of this circumstance alone, where Burson was
unaware of McDowell’s and the paralegals’ conduct, is insufficient to establish a
violation of MLRC 8.4(d).
Clear and convincing evidence persuades us to reverse the hearing judge’s
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conclusion that McDowell had not violated MLRPC 8.4(d). Paramount to this
conclusion, as noted above, is the circumstance that McDowell concedes that he violated
MLRPC 8.4(d). McDowell signed trustee’s deeds and affidavits on Savage’s behalf. 9
Once it became public knowledge, the robo-signing at the Shapiro Firm prompted
adverse media coverage and a lawsuit against the Shapiro Firm. Cf. Geesing, 436 Md. at
65, 80 A.3d at 723 (This Court held that a lawyer had violated MLRPC 8.4(d) where the
lawyer had participated in robo-signing that had “caused significant media coverage” and
“prompted certain mortgagors to file several lawsuits arising out of the robo-signing
against” the lawyer and the law firm.). Thus, McDowell’s conduct negatively impacted
the public’s perception of the legal profession.
MLRPC 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers)
MLRPC 5.1 states:
(a) A partner . . . shall make reasonable efforts to ensure that the [law] firm
has in effect measures giving reasonable assurance that all lawyers in the
[law] firm conform to the [MLRPC].
***
(c) A lawyer shall be responsible for another lawyer’s violation of the
[MLRPC] if:
(1) the lawyer orders or, with knowledge of the specific conduct,
ratifies the conduct involved; or
9
Although McDowell did so at Savage’s direction, it is not a defense to a violation
of the MLRPC “that the lawyer acted at the direction of another person[,]” MLRPC
5.2(a), unless the lawyer “act[ed] in accordance with a supervisory lawyer’s reasonable
resolution of an arguable question of professional duty.” MLRPC 5.2(b). McDowell
does not contend that it was reasonable for Savage to believe that it was not improper for
one lawyer to sign trustee’s deeds and affidavits on another lawyer’s behalf.
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(2) the lawyer is a partner . . . and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take
reasonable remedial action.
“Whether an employee’s ethical breaches are due to the employee’s sub-standard
performance or the deliberate circumvention of standard procedures, proper supervision
must include mechanisms to determine whether the delegated tasks are being performed.”
Attorney Grievance Comm’n v. Kimmel, 405 Md. 647, 682, 955 A.2d 269, 290 (2008)
(footnote omitted).
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Burson had violated MLRPC 5.1(a). Prior to Burson’s discovery of McDowell’s and
Savage’s conduct, two other lawyers at the Shapiro Firm signed each other’s names on
foreclosure-related documents and were the subjects of show cause orders in various
circuit courts as a result of the practice. As the Shapiro Firm’s managing partner, Burson
was aware that circuit courts issued show cause orders regarding the two lawyers’ signing
of documents. The hearing judge found that, despite being aware of the “prior incident,”
before learning that McDowell had signed trustee’s deeds and affidavits on Savage’s
behalf, Burson made no efforts to ensure that the Shapiro Firm had in effect measures
giving reasonable assurance that lawyers did not robo-sign documents. McDowell signed
Savage’s name in approximately 900 cases. The existence of the show cause orders
involving allegedly improper signing of documents, coupled with the number of cases in
which McDowell signed Savage’s name, leads to the conclusion that clear and
convincing evidence supports the hearing judge’s determination that Burson made no
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efforts to ensure that the Shapiro Firm had in effect measures giving reasonable assurance
that lawyers did not robo-sign documents.
The hearing judge was correct in concluding that clear and convincing evidence
did not establish that Burson was vicariously responsible for McDowell’s conduct under
MLRPC 5.1(c). 10 As discussed above, McDowell violated MLRPC 8.4(d) by signing
trustee’s deeds and affidavits on Savage’s behalf. However, Burson neither ordered nor
ratified the signatures; and, after learning about the signatures, Burson took reasonable
remedial action by ensuring that McDowell’s signing of the trustee’s deeds on Savage’s
behalf neither created any problems as to title nor necessitated that the trustee’s deeds be
executed again. Thus, it is readily apparent that Burson did not vicariously violate
MLRPC 8.4(d) through McDowell’s conduct.
MLRPC 5.3 (Responsibilities Regarding Nonlawyer Assistants)
MLRPC 5.3 states:
With respect to a nonlawyer employed or retained by or associated with a
lawyer:
(a) a partner . . . shall make reasonable efforts to ensure that the [law] firm
has in effect measures giving reasonable assurance that the [nonlawyer]’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 [nonlawyer]’s conduct is
compatible with the professional obligations of the lawyer;
(c) a lawyer shall be responsible for conduct of [a nonlawyer] that would be
10
Under certain circumstances, MLRPC 5.1(c) makes one lawyer vicariously
responsible for another lawyer’s violation of another MLRPC; thus, technically speaking,
a lawyer cannot violate MLRPC 5.1(c) itself.
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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
(2) the lawyer is a partner . . . and knows of the conduct at a time
when its consequences can be avoided or mitigated but fails to take
reasonable remedial action[.]
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Burson had violated MLRPC 5.3(a). Before learning that paralegals (who were also
notaries public) had notarized trustee’s deeds and affidavits that had been signed outside
the paralegals’ presence with notary jurats that stated that the trustee’s deeds and
affidavits had been signed in the paralegals’ presence, Burson—the Shapiro Firm’s
managing partner—made no efforts to ensure that the Shapiro Firm had in effect
measures giving reasonable assurance that paralegals did not falsely notarize documents.
Just as Burson violated MLRPC 5.1(a) by negligently failing to supervise lawyers, so too
did Burson violate MLRPC 5.3(a) by negligently failing to supervise paralegals.
The hearing judge was correct in concluding that clear and convincing evidence
did not establish that Burson had violated MLRPC 5.3(b). The hearing judge did not find
that Burson directly supervised paralegals at the Shapiro Firm.
The hearing judge was correct in concluding that clear and convincing evidence
did not establish that Burson was vicariously responsible for the paralegals’ conduct
under MLRPC 5.3(c). 11 At the Shapiro Firm, paralegals (who were also notaries public)
11
Under certain circumstances, MLRPC 5.3(c) makes a lawyer vicariously
responsible for a nonlawyer’s conduct that, if performed by lawyers, would constitute a
(Continued...)
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notarized trustee’s deeds and affidavits that had been signed outside the paralegals’
presence. The notary jurats stated that the trustee’s deeds and affidavits had been signed
in the paralegals’ presence. Thus, the paralegals falsely notarized the trustee’s deeds and
affidavits. Had the paralegals been lawyers, they would have violated MLRPC 8.4(c)
(Dishonesty, Fraud, Deceit, or Misrepresentation) by falsely notarizing the trustee’s
deeds and affidavits. Burson, however, neither ordered nor ratified the false
notarizations; and, after learning about the false notarizations, Burson took reasonable
remedial action by ensuring that the trustee’s deeds did not need to be executed again.
Thus, Burson did not vicariously violate MLRPC 8.4(c) through the paralegals’ conduct.
MLRPC 8.4(a) (Violating the MLRPC)
“It is professional misconduct for a lawyer to[] violate . . . the” MLRPC. MLRPC
8.4(a).
Here, clear and convincing evidence persuades us to reverse the hearing judge’s
conclusion that Burson had not violated MLRPC 8.4(a). As discussed above, Burson
violated MLRPC 5.1(a) and 5.3(a).
Clear and convincing evidence persuades us to reverse the hearing judge’s
conclusion that McDowell had not violated MLRPC 8.4(a). As discussed above,
McDowell violated MLRPC 8.4(d).
(C) Sanctions
Burson recommends that we reprimand him; the Commission recommends that we
violation of another MLRPC; thus, technically speaking, a lawyer cannot violate MLRPC
5.3(c) itself.
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suspend Burson from the practice of law in Maryland for thirty days. Originally,
McDowell had recommended that we dismiss the charges against him, and the
Commission had recommended that we reprimand McDowell; later, however, McDowell
and the Commission filed in this Court the Joint Petition for Reprimand by Consent, 12 in
which McDowell and the Commission recommend that we reprimand McDowell. 13
This Court sanctions a lawyer “not to punish the” lawyer, but instead “to protect
the public and the public’s confidence in the legal profession[.]” Attorney Grievance
Comm’n v. Frost, 437 Md. 245, 269, 85 A.3d 264, 278 (2014) (citations omitted). This
Court protects the public by: (1) “deterr[ing]” other lawyers from engaging in similar
misconduct; and (2) suspending or disbarring a lawyer who is “unfit to continue” to
practice law. Id. at 269, 85 A.3d at 278 (citation omitted).
In determining an appropriate sanction for a lawyer’s misconduct, this Court
considers: “(a) the duty violated; (b) the lawyer’s mental state; (c) the potential or actual
12
In filing the Joint Petition for Reprimand by Consent, McDowell apparently
abandoned his recommendation that we dismiss the charges against him. To the extent
that the motion to dismiss remains before us, we deny the motion to dismiss.
13
In contending that we should reprimand them, Burson and McDowell point out
that the Commission reprimanded Savage for “permitting the execution of documents in
his name when not personally signed by him[.]” “A reprimand by the Commission does
not constitute precedent, and thus does not bind this Court in subsequent attorney
discipline proceedings.” Attorney Grievance Comm’n v. Greenleaf, __ Md. __, __ A.3d
__, Misc. Docket AG No. 2, Sept. Term, 2013, 2014 WL 1998712, at *9 n.18 (Md. May
16, 2014). Simply put, this Court has no control over whether the Commission
reprimands a lawyer. Thus, at oral argument, McDowell’s counsel raised a red herring in
contending that imposing a sanction that is greater than a reprimand would be
inconsistent with this Court’s jurisprudence. The Commission’s reprimand of Savage
plays no role in our determination of the appropriate sanctions for Burson’s and
McDowell’s misconduct.
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injury caused by the lawyer’s misconduct; and (d) the existence of aggravating or
mitigating factors.” American Bar Association, Standards for Imposing Lawyer
Sanctions (“ABA Standards”) at III.C.3.0 (1992) (paragraph breaks omitted). 14
Aggravating factors include: (a) prior [attorney] disciplin[e]; (b) [a]
dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple
[violations of the MLRPC]; (e) bad faith obstruction of the [attorney]
disciplin[e] proceeding by intentionally failing to comply with [the
Maryland R]ules or orders of [this Court]; (f) submission of false evidence,
false statements, or other deceptive practices during the [attorney]
discipline[e proceeding]; (g) refusal to acknowledge [the] wrongful nature
of [the mis]conduct; (h) vulnerability of [the] victim; (i) substantial
experience in the practice of law; (j) indifference to making restitution;
[and] (k) illegal conduct, including that involving the use of controlled
substances[.]
ABA Standards at III.C.9.22 (paragraph breaks omitted).
Mitigating factors include: (a) [the] absence of [] prior [attorney]
disciplin[e]; (b) absence of a dishonest or selfish motive; (c) personal or
emotional problems; (d) timely good faith effort[s] to make restitution or to
rectify consequences of [the] misconduct; (e) full and free disclosure to [the
Commission] or [a] cooperative attitude toward [the attorney discipline]
proceeding[]; (f) inexperience in the practice of law; (g) character or
reputation; (h) physical disability; (i) [a] mental disability or chemical
dependency including alcoholism or drug abuse [where]: (1) there is
medical evidence that the [lawyer] is affected by a chemical dependency or
mental disability; (2) the chemical dependency or mental disability caused
the misconduct; (3) the [lawyer]’s recovery from the chemical dependency
or mental disability is demonstrated by a meaningful and sustained period
of successful rehabilitation; and (4) the recovery arrested the misconduct
and recurrence of [the] misconduct is unlikely[;] (j) delay in [the attorney]
disciplin[e] proceeding[]; (k) [the] imposition of other penalties or
sanctions; (l) remorse; [and] (m) remoteness of prior [violations of the
MLRPC].
14
“[I]n determining an appropriate sanction,” this Court often considers the ABA
Standards. Attorney Grievance Comm’n v. McDonald, 437 Md. 1, 45, 85 A.3d 117, 143
(2014) (citation omitted).
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ABA Standards at III.C.9.32 (paragraph breaks omitted).
Appropriate Sanction for Burson’s Misconduct
As to the duty violated, Burson violated MLRPC 5.1(a) (Responsibilities of
Partners, Managers, and Supervisory Lawyers) by making no efforts to ensure that the
Shapiro Firm had in effect measures giving reasonable assurance that lawyers did not
robo-sign documents; additionally, Burson violated MLRPC 5.3(a) (Responsibilities
Regarding Nonlawyer Assistants) by making no efforts to ensure that the Shapiro Firm
had in effect measures giving reasonable assurance that paralegals did not falsely notarize
documents. Burson’s mental state was one of negligence, “[t]he least culpable mental
state[,]” ABA Standards at II; Burson knew neither that McDowell was signing trustee’s
deeds and affidavits on Savage’s behalf, nor that paralegals were falsely notarizing
documents. Moreover, on this record, we do not conclude that Burson blinded himself
willfully to what was occurring.
Burson’s neglect of his managerial duties did not cause any tangible injury; none
of the trustee’s deeds were defective or challenged timely in court. We note only one
aggravating factor, namely, Burson’s substantial experience in the practice of law;
Burson has been a member of the Bar of Maryland for approximately twenty-nine years.
We note seven mitigating factors: (1) the absence of prior attorney discipline; (2) the
absence of a dishonest or selfish motive; (3) timely good faith efforts to rectify the
misconduct’s consequences and to prevent future misconduct by ensuring that
McDowell’s signing of the trustee’s deeds on Savage’s behalf neither created any
problems as to title nor necessitated that the trustee’s deeds be executed again, requiring
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all employees at the Shapiro Firm to promise in writing that they would neither sign
others’ names nor allow others to sign their names, and requiring all notaries public at the
Shapiro Firm to promise in writing that they would not violate laws regarding
notarizations; (4) a cooperative attitude toward this attorney discipline proceeding; (5)
character, as Burson is respected for his integrity; (6) other penalties in the form of being
sued, receiving adverse media coverage, voluntarily stopping the active practice of law,
and withdrawing from the Shapiro Firm, which no longer bears Burson’s name; and (7)
remorse.
We agree with Burson that a reprimand is the appropriate sanction for his
misconduct. Although Burson made no efforts to ensure that the Shapiro Firm had in
effect measures giving reasonable assurance that lawyers did not robo-sign documents
and that notaries public did not falsely notarize documents, Burson did not participate in
(or even know of) the robo-signing and false notarizations; thus, Burson’s misconduct
was negligent rather than knowing or intentional. Burson’s misconduct is aggravated
only by substantial experience in the practice of law, and is mitigated by a myriad of
significant factors, such as his voluntary cessation of the active practice of law.
We agree with Burson and the Commission that Burson’s misconduct is
distinguishable from that of the lawyer in Dore, 433 Md. at 727, 689, 707, 708-09, 73
A.3d at 186, 163, 174, 175, in which this Court suspended from the practice of law in
Maryland for ninety days a lawyer who had robo-signed documents, violated MLRPC
3.3(a)(1) (Making or Failing to Correct a False Statement to a Tribunal), and violated
MLRPC 5.3(a) (Responsibilities Regarding Nonlawyer Assistants) through intentional
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misconduct. By contrast, here, Burson did not robo-sign documents, did not violate
MLRPC 3.3(a)(1), and violated MLRPC 5.3(a) through negligence rather than intentional
misconduct.
Similarly, we agree with Burson and the Commission that Burson’s misconduct is
distinguishable from that of the lawyers in Kimmel, 405 Md. at 689, 672, 955 A.2d at
294, 284, in which this Court indefinitely suspended from the practice of law in
Maryland, with the right to apply for reinstatement no sooner than ninety days, lawyers
who had violated MLRPC 5.1 (Responsibilities of Partners, Managers, and Supervisory
Lawyers) and 1.4 (Communication). The lawyers, partners at a law firm, see id. at 651,
955 A.2d at 271, “failed to design and implement policies and procedures that reasonably
would ensure [the lawyers’ subordinate’s] compliance with the Maryland Rules[.]” Id. at
680, 955 A.2d at 289. This Court stated that the lawyers’ misconduct caused “egregious”
injury to the law firm’s clients. Id. at 685, 955 A.2d at 292 (citation omitted). This Court
noted no aggravating factors and noted two mitigating factors: (1) the absence of prior
attorney discipline; and (2) timely good faith efforts to rectify the misconduct’s
consequences. See id. at 687-88, 955 A.2d at 293-94. In contrast to the misconduct of
the lawyers in Kimmel, here, Burson’s misconduct caused no tangible injury and is
mitigated by a myriad of significant factors.
We are unpersuaded by the Commission’s reliance on Attorney Grievance
Comm’n v. Goldberg, 292 Md. 650, 658, 441 A.2d 338, 342 (1982), in which this Court
suspended for thirty days from the practice of law in Maryland a lawyer who had failed to
“adequately supervise his employee.” In Goldberg, id. at 652, 441 A.2d at 339, the
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employee “failed to prepare” certain documents and deposit checks from clients. The
lawyer failed “to make inquiry [of the employee] when [certain] matters did not cross his
desk for his signature.” Id. at 658, 441 A.2d at 342. Additionally, the lawyer failed to
take “the simple precaution of running his eye over bank statements at the end of the
month.” Id. at 656, 441 A.2d at 341. This Court found no aggravating factors and three
mitigating factors: (1) the absence of prior attorney discipline; (2) timely good faith
efforts to prevent future misconduct; and (3) character. Id. at 658, 441 A.2d at 342.
Although this Court noted that “there appear[ed] to have been no actual loss to [the
lawyer’s] clients[,]” the Court suspended the lawyer for thirty days. Id. at 658, 441 A.2d
at 342. In contrast to Goldberg, here, McDowell’s and the paralegals’ actions (i.e., robo-
signing and false notarizations) were not as glaring or as easily noticed as the employee’s
failure to prepare documents and deposit checks in Goldberg; in other words, Burson’s
failure to adequately supervise McDowell and the paralegals was less egregious than the
lawyer’s failure to adequately supervise the employee in Goldberg. Additionally,
Burson’s misconduct is mitigated by a number of significant factors, including his
voluntary cessation of the practice of law.
To be clear, we caution partners—and lawyers who “possess[] comparable
managerial authority[,]” MLRPC 5.1(a); MLRPC 5.3(a)—that our decision to reprimand
Burson is based on this attorney discipline proceeding’s unique circumstances. Under
other circumstances, this Court would suspend a lawyer who violates MLRPC 5.1(a), see
Kimmel, 405 Md. at 689, 680, 955 A.2d at 294, 289, or MLRPC 5.3(a). See Dore, 433
Md. at 727, 708, 73 A.3d at 186, 175. We recommend that partners and lawyers who
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possess comparable managerial authority at law firms that represent mortgagees in
foreclosure actions consider how to avoid Burson’s situation and ensure that their firms
have in effect measures that will assure that the conduct of their subordinates is consistent
with the professional obligations of the supervising lawyer.
For the above reasons, we reprimand Burson.
Appropriate Sanction for McDowell’s Misconduct
In Attorney Grievance Comm’n v. Paul, 423 Md. 268, 293, 289, 274, 31 A.3d 512,
527, 525, 516 (2011), this Court reprimanded a lawyer who violated MLRPC 8.4(d)
(Conduct That Is Prejudicial to the Administration of Justice) and 3.3(a) (Candor Toward
the Tribunal) by filing in a trial court a document onto which the lawyer had cut-and-
pasted another person’s signature without the other person’s knowledge. As to the
lawyer’s mental state, this Court noted that the lawyer “honestly believed that he was
legally authorized to” cut-and-paste the other person’s signature. Id. at 292, 31 A.3d at
527. This Court noted that the lawyer’s misconduct “was not detrimental to his
clients[.]” Id. at 292, 31 A.3d at 527. This Court did not note any aggravating factors,
and noted six mitigating factors: (1) the absence of prior attorney discipline; (2) the
absence of a dishonest or selfish motive; (3) timely good faith efforts to prevent future
misconduct; (4) character; (5) remorse; and (6) another penalty in the form of the
lawyer’s losing his job. See id. at 292-93, 31 A.3d at 527.
Here, as to the duty violated, McDowell violated 8.4(d) (Conduct That is
Prejudicial to the Administration of Justice) by signing trustee’s deeds and affidavits on
Savage’s behalf. As to McDowell’s mental state, McDowell signed trustee’s deeds and
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affidavits on Savage’s behalf because Savage told McDowell to do so; 15 McDowell
believed (albeit mistakenly) that doing so was not improper. As to the potential or actual
injury that McDowell’s misconduct caused, McDowell’s misconduct tarnished the
public’s perception of the legal profession, but did not cause any tangible injury; none of
the trustee’s deeds were defective or challenged in court. We note two aggravating
factors: a pattern of misconduct and multiple violations of the MLRPC, as demonstrated
by McDowell’s signing trustee’s deeds and affidavits on Savage’s behalf in
approximately 900 foreclosure actions. We note four mitigating factors: (1) the absence
of prior attorney discipline; (2) the absence of a dishonest or selfish motive; (3) a
cooperative attitude toward this attorney discipline proceeding; and (4) remorse.
We agree with McDowell and the Commission that a reprimand is the appropriate
sanction for McDowell’s misconduct. Although McDowell signed trustee’s deeds and
affidavits on Savage’s behalf, McDowell had a relatively blameless mental state in doing
so, as McDowell did so at Savage’s direction and believed that doing so was not
improper. Although McDowell’s misconduct is aggravated by a pattern of misconduct
15
As noted above, generally, it is not a defense to a violation of the MLRPC “that
the lawyer acted at the direction of another person.” MLRPC 5.2(a). That said, in
determining an appropriate sanction for a lawyer’s misconduct, this Court considers “the
lawyer’s mental state[.]” ABA Standards at III.C.3.0. Thus, a lawyer who engages in
misconduct at another’s direction might receive a lesser sanction than a lawyer who
engages in misconduct on the lawyer’s own initiative. See Attorney Grievance Comm’n
v. Sudha Narasimhan, __ Md. __, __ A.3d __, Misc. Docket AG No. 77, Sept. Term,
2012, 2014 WL 2154057, at *8 n.9 (Md. May 23, 2014) (“[T]o the extent that [another
lawyer]’s conduct played a role in [a lawyer’s] violation [of an MLRPC], such a fact
could be considered in determining the appropriate sanction, but would not affect
whether or not [the lawyer] violated a particular MLRPC.”).
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and multiple violations of the MLRPC, McDowell’s misconduct is mitigated by the
absence of prior attorney discipline, the absence of a dishonest or selfish motive, a
cooperative attitude toward this attorney discipline proceeding, and sincere remorse.
Under rare circumstances, a reprimand may be the appropriate sanction for a violation of
MLRPC 8.4(d) (Conduct That is Prejudicial to the Administration of Justice). See Paul,
423 Md. at 293, 289, 31 A.3d at 527, 525.
We agree with McDowell that his misconduct is distinguishable from that of the
lawyer in Dore, 433 Md. at 727, 717, 710, 73 A.3d at 186, 180, 176, in which this Court
suspended from the practice of law in Maryland for ninety days a lawyer who had robo-
signed documents on his own initiative, violated MLRPC 3.3(a)(1) (Making or Failing to
Correct a False Statement to a Tribunal), violated MLRPC 5.3(a) (Responsibilities
Regarding Nonlawyer Assistants), and negatively impacted the courts’ operation. By
contrast, here, McDowell signed trustee’s deeds and affidavits on Savage’s behalf at
Savage’s direction, did not violate MLRPC 3.3(a)(1), did not violate MLRPC 5.3(a), and
did not negatively impact the courts’ operation.
For the above reasons, we reprimand McDowell and grant the Joint Petition for
Reprimand by Consent.
IT IS SO ORDERED; RESPONDENTS SHALL
PAY ALL COSTS AS TAXED BY THE CLERK
OF THIS COURT, INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 16-761(b), FOR WHICH SUM JUDGMENT
IS ENTERED IN FAVOR OF THE ATTORNEY
GRIEVANCE COMMISSION JOINTLY AND
SEVERALLY AGAINST MATTHEW JOHN
MCDOWELL AND JOHN STEPHEN BURSON.
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