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Attorney Grievance Commission of Maryland v. Pennington6/22/2005
Pinkney, 311 Md. 137, 532 A.2d 1367 (1987) (Respondent prepared fictitious pleadings to give her client the impression that her case was filed in court, when in fact, she had failed to do so.) The act of concealment is exactly the conduct of the Respondent in this matter.
"The Respondent argues an independent defense of reliance of counsel to not only the misconduct claims but also the conflict of interest claim. The Respondent consulted with Mr. Wiggins and was incorrectly advised by him that she could proceed with providing the Butlers $10,000.00 from her own funds without disclosing to the Butlers the source of the funds or the circumstances of their distribution. To support this contention, the Respondent relies on the following cases: United States v. Peterson, 101 F.3d 375, 381 n.4 (5th Cir. 1996) and Manown v. Adams, 89 Md.App. 503, 514, 598 A.2d 821, 826 (1991). However, reliance on these cases is misplaced.
"In Peterson, the Court clearly held that `good faith reliance on counsel is not a defense to securities fraud. It is simply a means of demonstrating good faith and represents possible evidence of an absence of any intent to defraud.' 101 F.3d at 382.
"In Adams, the Court specifically states that ` t is true that reliance on an attorney's advice may, in a civil action, negate wrongdoing where the advice has been based on full disclosure of the relevant facts.' 78 Md.App. at 514, 598 A.2d at 826 citing Derby v. Jenkins, 32 Md.App. 386, 391, 363 A.2d 967 (1967). The Court continues, however, that ` his rule allows lay people to rely on an attorney's ability to "view the facts calmly and dispassionately" and to "judge the facts in their legal bearings."' (Emphasis added). Adams at 78 Md.App. at 514, 598 A.2d at 826 (citing Derby v. Jenkins, 32 Md.App. 386, 391, 363 A.2d 967 (1967)). It is clear that in these cases the Court was not presented with a situation where an attorney relied on the advice of counsel and that these cases do not deal with disciplinary actions. Furthermore, the bar is set higher for an attorney then a layperson.
"Attorneys admitted to practice in the state of Maryland are `deemed to know the Rules of Professional Conduct and have the obligation to act in conformity with those standards as a requirement to practice law.' Attorney Grievance Commission v. Stein, 373 Md. 531, 543-544, 819 A.2d 372, 379 (2003) (citing Attorney Grievance Commission v. Jeter, 365 Md. 279, 292, 778 A.2d 390, 397 (2001).
"This Court could find no Maryland case law in which good faith reliance on advice of counsel was an affirmative defense in a disciplinary action. However, the Court of Appeals has rejected the defense of a respondent's claim of reliance on the advice of an ethics opinion or a certified public accountant. See Attorney Grievance Commission v. Gregory, 311 Md. 522, 536 A.2d 646, 651 (1988); Attorney Grievance Commission v. Gavin, 350 Md. 176, 711 A.2d 193, 202 (1998). As such, the Respondent, in this Court's opinion cannot rely on the good faith reliance on the defense of counsel as this is not the rule in Maryland.
"Some jurisdictions have affirmatively held that the good faith reliance on the advice of counsel is never defense in a disciplinary action. See People v. Katz, 58 P.3d 1176, 1187 (Co. 2002) (`It is the individual attorney's duty and obligation to comply with 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.'); Conduct of Gatti, 330 Or. 517, 526, 8 P.3d 966, 972-973 (Or. 2000) (`advice from disciplinary counsel is a not a defense to a disciplinary violation.')
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