We handle litigation involving, among others, lawyers and law firms in various jurisdictions including Maryland, the District of Columbia, and Virginia. In litigating and trying cases against bar counsel, we often see claims made against our clients that center on purported violations of Maryland Rule 19-308.4(c), specifically, alleged misrepresentations.[1] If you are an attorney accused of ethics violations, including violating Rule 19-308.4(c), this brief article provides some insights on what you need to know to defend yourself.
Quick Takeaways
Maryland Rule 19-308.4(c) concerns alleged attorney-dishonesty, fraud, deceit, or misrepresentation, and is one of the most serious claims that can be made against an attorney in the disciplinary process. We frequently encounter cases involving Rule 19-308.4(c) violations centering on purported attorney misrepresentations. Bar counsel often asserts that violations of Rule 19-308.4(c) should summarily result in disbarment, but whether a violation of Rule 19-308.4(c) will result in disbarment or some lesser sanction often centers around four key areas of inquiry;
- Were the misrepresentations negligent or intentional?
- Were the misrepresentations isolated or repeated?
- Were the misrepresentations made to clients or the court as opposed to some other third-party?
- Were the misrepresentations made for personal gain?
Overview of Maryland Rule 19-308.4
Under Maryland Rule 19-308.4 it is professional misconduct for a lawyer to:
- violate or attempt to violate the Maryland Lawyers' Rules of Professional Conduct, knowingly assist or induce another to do so, or do so through the acts of another;
- commit a criminal act that reflects adversely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation;
- engage in conduct that is prejudicial to the administration of justice;
There are a number of Maryland appellate decisions holding that violations of Rule 19-308.4(c) strike at the very heart of what it means to be a lawyer because, “candor and truthfulness are two of the most important moral character traits of a lawyer.”[2] When a lawyer engages in dishonest or fraudulent conduct, courts often claim that there is no need to discuss degrees of dishonesty because generally, absent compelling extenuating circumstances, disbarment should be imposed.[3] We have not always found this to be the case.
Four Key Areas to Focus On
While each disciplinary case is unique,[4] if you are accused of violating Rule 19-308.4(c), there are often four key areas to focus on that can determine whether you are disbarred, exonerated, or receives a sanction less than disbarment.
First, you need to know whether the alleged misrepresentation was intentional or negligent.[5] In our experience, while there are a few judges that don’t seem willing to make a distinction between intentional and negligent violations of Rule 19-308.4(c), most do, and in AGC v. Moore,[6] the Court of Appeals specifically noted that it had “previously established through our case law that a violation of 8.4(c) must be the result of intentional misconduct,” and that “this Court will not find a violation of [Rule 8.4(c)] when the attorney’s misconduct is the product of negligent rather than intentional misconduct.”[7] The bottom line is, you will have a much more difficult time defending against Rule 19-308.4(c) claims if your purported misrepresentations were intentional.
Second, you need to know whether the alleged misrepresentation was isolated or part of a pattern of deceitful conduct. Again, bar counsel may argue that this is immaterial, but in our experience, courts will often closely examine whether the conduct was one-time incident or part of a pattern of deceitful practice.[8]
Third, you need to know to whom the alleged misrepresentation was made. In our experience, the courts look with particular disdain on misrepresentations made first, to clients,[9] and second, to the courts, as opposed to misrepresentations made to other third parties, including bar counsel.[10] This is not meant to minimize the significance of misstatements to bar counsel, but we have successfully distinguished between misstatements negligently made to clients and the court as opposed to other third-parties.
Fourth, you need to know whether the misrepresentations were done for personal gain. There’s an element of truth to the old saying that greed will get you disbarred while sloppiness will get you suspended. In other words, were the misrepresentations made to steal money from a client, or conceal bad acts from bar counsel? Or were they made as a result of sloppiness or confusion?[11] The bottom line is, misrepresentations made for personal gain, to misappropriate money for instance, are generally the most serious of all claims that can be leveled against an attorney, and disbarment will almost always follow.
As you can see from the above, if you are accused of making misrepresentations but those misrepresentation: (1) arose out of negligent conduct; (2) were isolated; (3) made to third-parties; and (4) not undertaken for personal gain, you should be able to, depending on the specific facts of the case, mount a vigorous defense and seek a sanction that is less than disbarment. If you have any questions concerning anything in this short article, please contact George Mahaffey and be on the lookout for additional material concerning attorney ethics and the disciplinary process.
If you are interested in having Mr. Mahaffey speak to your organization on the topic of attorney ethics violations, or other professional liability issues, please contact us with your schedule.
[1] Formerly, Maryland Rule 8.4(c).
[2] AGC v. Page, 430 Md. 602, 638, 62 A.3d 163, 184 (2013).
[3] AGC v. Foltz, 411 Md. 359, 413, 983 A.2d 434, 466 (2009).
[4] Each case will also involve mitigating and aggravating factors which will be analyzed in a separate article.
[5] And whether the misrepresentation is somehow tied to the misappropriation of money. If the misrepresentation involves the misappropriation of money, disbarment will usually follow. See also Lane, infra n. 9 at 646-47, 790 A.2d at 628 (“We have not, however, always found disbarment to be the appropriate sanction when there is misrepresentation involved, especially where misappropriation of money was not involved.”)
[6] 451 Md. 55, 152 A.3d 639 (2017).
[7] Id. At 86, 152 A.3d at 657.
[8] AGC v. Lane, 367 Md. 633, 647, 790 A.2d 621 (2002). See also Framm, infra at 667, 144 A.3d at 855 (noting that when an attorney’s conduct “is characterized by repeated material misrepresentations that constitute a pattern of deceitful conduct, as opposed to an isolate incident, disbarment follows as a matter of course.”). But see AGC v. Harrington, 367 Md. 36, 785 A.2d 1260 (2001) (suspension the appropriate remedy for an attorney who made one misrepresentation to a client and then failed to cooperate with bar counsel during the resulting investigation).
[9] AGC v. Framm, 449 Md. 620, 144 A.3d 827 (2016).
[10] See AGC v. Lee, 393 Md. 385, 903 A.2d 360 (2006).
[11] See Lane, supra at 647, 790 A.2d at 628 (detailing the distinction between misrepresentations from greed as opposed to incompetence).
