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Disbarment, not suspension, is the appropriate sanction to impose on a lawyer who altered or erased computerized client records and misappropriated his law firm's resources as part of a scheme to lure away firm clients to his new solo practice, a closely divided Maryland Court of Appeals declared Aug. 19 (Maryland Attorney Grievance Comm'n v. Keiner, Md., Misc. Docket AG No. 24, 8/19/11).
Although three judges called for an indefinite suspension, the other four decided that nothing less than disbarment would do, notwithstanding evidence of the lawyer's depression and dependency on alcohol. Writing for the majority, Judge Mary Ellen Barbera explained that the presumption of disbarment in cases of intentional criminal misconduct may be mitigated by disability only when the condition was the “root cause” of the misconduct, was “debilitating,” and made the lawyer utterly unable to act appropriately.
The court also distinguished an earlier decision in which it handed out a 90-day suspension to a lawyer who spirited away a firm's client files to start a new practice. Unlike the present matter, the majority said, there was no evidence in that case that the lawyer was motivated by personal gain.
Gregory Raymond Keiner worked as an associate at The Law Offices of Evan K. Thalenberg in Baltimore, primarily handling lead paint litigation. After working at the Thalenberg firm for five years, the court said, Keiner decided he wanted to open his own practice.
In order to hit the ground running, Keiner came up with a scheme he believed would make it easier for Thalenberg clients to follow him to his new practice. He began falsifying and deleting documents in the firm's client files to make it appear that cases had been closed for lack of merit, but he continued to work on the cases on the side in the expectation that the clients would stay with him when he left the firm.
Keiner also used the law firm's databases, as well as its postage and office supplies, to locate and solicit some 200 potential clients, the court said.
After he was found out and fired, Keiner was hospitalized and diagnosed with depression and alcohol dependence.
The hearing judge found that although Keiner was never charged with a criminal offense, his conduct contravened Maryland's criminal statute against unauthorized access of and tampering with computers. The judge also determined that the lawyer violated Maryland Rules of Professional Conduct 1.4(a) and (b), on communication, and 8.4(a) (rules violation), 8.4(b) (criminal act reflecting adversely on fitness), 8.4(c) (dishonesty, fraud, deceit), and 8.4(d) (conduct prejudicial to administration of justice).
Although concluding that Keiner's alcohol abuse and depression adversely impacted him, the judge said the diagnosis was not so severe that it rendered the lawyer unable to control himself and obey the rules.
Because Keiner admitted the violations, most of the Maryland high court's discussion centered on the question of what sanction to impose. Keiner argued that a suspension was appropriate given his debilitation, lack of disciplinary record, remorse, absence of injury to clients, and good reputation.
Bar counsel, on the other hand, insisted that disbarment was appropriate, citing Maryland Attorney Grievance Comm'n v. Vanderlinde, 773 A.2d 463, 17 Law. Man. Prof. Conduct 400 (Md. 2001), which held that nothing less than an “utterly debilitating” mental or physical malady that renders a lawyer unable to act in accordance with the law will be viewed as a compelling extenuating circumstance for intentional dishonesty and other serious criminal offenses.
A majority of the court agreed with bar counsel and ordered Keiner disbarred.
The majority pointed out that in Maryland Attorney Grievance Comm'n v. Palmer, 9 A.3d 37, 26 Law. Man. Prof. Conduct 754 (Md. 2010), the court had extracted from Vanderlinde a three-step test for evaluating whether a mental disability is sufficiently mitigating to avoid disbarment:
• It must be “conclusive, and essentially uncontroverted” that the lawyer had a serious and debilitating mental condition.
• The condition must have served as the “root cause” of the misconduct.
• The disorder must have rendered the lawyer utterly incapable of complying with the law and professional responsibility rules.
The majority agreed with the hearing judge that Keiner's ailments didn't satisfy this test and that the other mitigating factors the lawyer cited weren't compelling enough to avoid disbarment. It pointed out that Keiner admitted under cross-examination that “his depression and alcoholism had not caused him to neglect any of his clients' cases or rendered him unable to otherwise function at a high level in his legal and financial affairs.”
It also rebuffed Keiner's claim that suspension was appropriate under Maryland Attorney Grievance Comm'n v. Potter, 844 A.2d 367, 20 Law. Man. Prof. Conduct 176 (Md. 2004), where the court imposed a 90-day suspension on a departing associate who secretly removed two client files and destroyed his firm's computer records for those clients in the middle of the night.
Although both cases involved destruction of client files in preparation of leaving a firm, the majority said, Potter was inapposite because the lawyer there believed that he was acting in his clients' best interests. According to the lawyer in that case, the clients wanted to keep him as their attorney and he was concerned that the law firm might act to thwart their choice.
By contrast, the majority said, Keiner was motivated by personal gain.
In a dissent joined by Chief Judge Robert M. Bell and Judge Joseph F. Murphy Jr., Judge John C. Eldridge argued that an indefinite suspension was appropriate. The facts of this case are not significantly different from those in Potter, Eldridge said.
Daniel Clements of Salsbury, Clements, Bekman, Marder & Adkins, Baltimore, argued the matter for Keiner. Bar Counsel Glenn M. Grossman, Crownsville, Md., argued on behalf of the attorney grievance commission.
Full text at http://op.bna.com/mopc.nsf/r?Open=kswn-8kvku3.
Copyright 2011, the American Bar Association and The Bureau of National Affairs, Inc. All Rights Reserved.
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