Attorney Grievance Commission of Maryland v. Pennington6/22/2005
as being used to make the reimbursement. After conducting the analysis and reviewing the pertinent cases, the hearing court concluded, " the Respondent ... cannot rely on the good faith reliance on the defense of counsel as this is not the rule in Maryland." Nevertheless, it offered mitigating factors to be used when fashioning a sanction. Specifically, the hearing court made a "finding that the Respondent in good faith relied on the incorrect advice provided to her by Mr. Wiggins and, because of that reliance, did not impart to the Butlers information about the status of their claims or the source of the funds that they received." In addition, the hearing court noted that, "during the hearing, Respondent displayed a high degree of remorse for her actions. These actions should therefore be considered as mitigating factors when fashioning any sanction."
Despite the Hearing court's mitigation findings and, notwithstanding its recognition of the purpose of attorney discipline, the majority orders the respondent disbarred.
The goal of attorney discipline in this state is well settled and has been stated often: "The primary purpose in imposing discipline on an attorney for violation of the Rules of Professional Conduct is not to punish the lawyer but rather to protect the public and the public's confidence in the legal profession." Attorney Griev. Comm'n v. Stein, 373 Md. 531, 533, 819 A.2d 372, 375 (2003); Attorney Griev. Comm'n v. Powell, 369 Md. 462, 474, 800 A.2d 782, 789 (2002). When sanctions that are commensurate with the nature and gravity of the violations and the intent with which they were committed are imposed, the public is protected. Attorney Griev. Comm'n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 454 (1997). See Attorney Griev. Comm'n v. Sheinbein, 372 Md. 224, 255, 812 A.2d 981, 999 (2002); Attorney Griev. Comm'n v. Hess , 352 Md. 438, 453, 722 A.2d 905, 913 (1999); Attorney Griev. Comm'n v. Webster, 348 Md. 662, 678, 705 A.2d 1135, 1143 (1998). In determining the appropriate sanction, the Court is required to consider the facts and circumstances of each particular case, including consideration of any mitigating factors. See Attorney Griev. Comm'n v. Atkinson, 357 Md. 646, 656, 745 A.2d 1086, 1092 (2000); Attorney Griev. Comm'n v. Gavin, 350 Md. 176, 197-98, 711 A.2d 193, 204 (1998).
The absence of a dishonest or selfish motive is a factor that this Court has determined to be a mitigating factor, entitled to some weight. Attorney Griev. Comm'n v. Thompson, 367 Md. 315, 330, 786 A.2d 763, 772-73 (2001); Attorney Griev. Comm'n v. Jaseb, 364 Md. 464, 481-82, 773 A.2d 516, 526 (2001); Attorney Griev. Comm'n v. Glenn, 341 Md. 448, 488-89,671 A.2d 463,483 (1996). We have also recognized "remorse" as a mitigating factor. Attorney Griev. Comm'n v. Post, 379 Md. 60, 71, 839 A.2d 718, 725 (2003); Attorney Griev. Comm'n v. Wyatt, 323 Md. 36, 38, 591 A.2d 467, 468 (1991). Accordingly, I believe that an indefinite suspension, rather than disbarrment, is the appropriate sanction.
That advice of counsel is not a defense or that the hearing court found that the respondent "intend the natural consequences of her action and non-action," does not mean that, as a matter of law, the respondent acted with a dishonest or selfish motive. As we have seen, the hearing court concluded that the respondent had no intent to harm her client.
It necessarily follows, therefore, that she acted without a dishonest or selfish motive. That finding and conclusion is entitled to weight. That is true notwithstanding the facts that the hearing court could have reached the opposite conclusion and, more to the point, that that opposite conclusion is the one that this Court prefers and, a
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