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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
jected his argument, on two grounds.
"First, it is presumed that Katz-as an attorney himself-understands and will adhere to the Rules of Professional Conduct. It is the individual attorney's duty and obligation to comply with the Rules of Professional Conduct. The attorney may not delegate that duty or responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of those Rules. Second, the facts of this case established that Katz withheld material information from Wollins during the discussion in which Katz contends the legal advice was provided. Absent full, fair and honest disclosure of all known relevant information concerning the issue, the advice of counsel defense is not available."
Id. at 1187 (citations omitted).
Respondent's reliance on advice of counsel from Mr. Wiggins, a lawyer not admitted to practice in the State of Maryland, is not a defense to her violations of Rule 8.4 (c) and (d) Misconduct, or to Rule 1.7(b) Conflict of Interest, or, for that matter, any of her conduct in this case. As a member of the Bar of this State, respondent took an oath to comply with the Rules of Professional Conduct and to act in conformity with those standards. See Attorney Grievance v. Stein, 373 Md. 531, 542, 819 A.2d 372, 379 (2003). The hearing judge found, by clear and convincing evidence, that she never disclosed the true facts of the dismissal to her clients, that she never communicated the source of the funds to her clients, and that she created and presented a settlement sheet to her clients that could only have created an impression by them that the case had settled. As the Colorado court stated well, an attorney may not delegate the responsibility to another under the umbrella of advice of counsel and thereby create a defense to a violation of the Rules of Professional Conduct. Every lawyer in this State should know that the misrepresentation to the client that occurred in this case was a violation of the Rules.
Moreover, even if the defense were applicable generally to attorney discipline matters, respondent's attempt to raise the defense would fail. First, misrepresentation under Rule 8.4(c) and conduct prejudicial to the administration of justice under (d) do not require specific intent. Second, respondent consulted a lawyer not admitted to practice law in this State, and, given her deceitful conduct, she could not have believed, in good faith, her conduct was proper. Finally, a predicate for establishing the defense is that the party asserting the defense establish that she has made a full and honest disclosure of all the material facts within her knowledge or belief. There is absolutely no evidence in this record, either from respondent or Mr. Wiggins, that respondent advised Mr. Wiggins that she intended to present a "statement of settlement" form to the clients. As the hearing judge found, this form, similar to the one respondent used with this client in a prior case, clearly created an impression that the case was settled. This misrepresentation to the client is at the heart of respondent's misconduct, and there is no evidence that Mr. Wiggins approved this conduct. Moreover, even if he did, for the reasons we have stated, it would not be a defense to the Rule violations.
The argument underlying most of respondent's other exceptions is that the Butlers could not have filed a malpractice suit against her, and, therefore, she was not required to disclose to the Butlers the true nature of the "settlement" or to suggest that they retain independent counsel. Respondent argues that since the Butlers had determined their claims to be worth $10,000, the Butlers suffered no damage by her $10,000 "settlem
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