805 A.2d 1040 (2002) 370 Md. 566

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
Bradford Jay BARNEYS.

Misc. AG No. 2, Sept. Term, 2001.

Court of Appeals of Maryland.

August 28, 2002.

*1041 Melvin Hirshman, Bar Counsel, Raymond A. Hein, Assistant Bar Counsel for Attorney Grievance Commission of Maryland, for petitioner.

Bradford Jay Barneys, Washington, DC, for respondent.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

HARRELL, Judge.

The Attorney Grievance Commission of Maryland, Petitioner, acting through Bar Counsel and at the direction of the Review Board, see Maryland Rule 16-709,^[1] filed a Petition for Disciplinary Action against Bradford Jay Barneys, Respondent, charging him with misconduct, as defined by Rule 16-701(k),^[2] in connection with his alleged unauthorized practice of law in Maryland. Specifically, the petition alleged that Respondent violated the following Maryland Rules of Professional Conduct ("MRPC"), as adopted by Maryland Rule 16-812: 5.5(a) (Unauthorized practice of law);^[3] 7.5(a), (b), and (d) (Firm names and letterheads);^[4] 4.1 (Truthfulness in statements *1042 to others);^[5] 8.1(a) (Bar admission and disciplinary matters);^[6] and 8.4(b), (c), and (d) (Misconduct),^[7] as well as Maryland Code (1989, 2000 Repl.Vol.), Business Occupations and Professions Article, §§ 10-601^[8] and 10-602^[9].

We referred the case to the Honorable Michael P. Whalen of the Circuit Court for Prince George's County to conduct a hearing and to make findings of fact and draw conclusions of law. See Rule 16-711(a).^[10] Following a one day hearing on 13 July 2001, the hearing judge made findings of fact from which he concluded that Respondent committed each of the charged violations. Petitioner filed no exceptions to the findings of fact and conclusions of law. It recommends disbarment as the sanction to be imposed. Respondent, while not disputing that he engaged in the unauthorized practice of law, took one exception to the fact finding and recommended as a sanction that he be barred from applying for admission to the Maryland Bar for two years.^[11]

I.

From the evidentiary record below, the hearing judge, in a memorandum dated 5 *1043 September 2001, found that Respondent, a member of the Bars of New York, Connecticut, and the District of Columbia, held himself out as a Maryland attorney beginning in August of 1996, when he opened an office at 7505 New Hampshire Avenue, Suite 301, Langley Park, Maryland. Without noting any jurisdictional limitation on the practice, Respondent used the name "Law Offices of Bradford J. Barneys, P.C." on his letterhead and business cards. The hearing court also found as a fact that, without being admitted to the Maryland Bar, Respondent engaged in the practice of law in Maryland during 1997 and 1998. The hearing court further determined that, despite the known pendency of Respondent's Maryland bar admission application (see supra note 11), he nonetheless entered his appearance as counsel and otherwise represented clients in at least five cases in the District Court of Maryland, sitting in Prince George's County, and the Circuit Court for Prince George's County. In none of these cases had Respondent been either admitted to the Maryland Bar or admitted specially by the court.

The hearing judge further found that, of special note, Respondent engaged in the unauthorized practice of law in the case of State of Maryland v. Santiago Sanchez, CT980986X.^[12] There, Respondent entered his appearance and filed other papers. He also contacted Gates Bail Bonds to arrange for Mr. Sanchez's one hundred fifty thousand dollars bond. Specifically, Respondent proposed that Deborah Gates, on behalf of Gates Bail Bonds, "accept an assignment of Mr. Sanchez's worker's compensation settlement proceeds, promising future payment in the amount of Fifteen Thousand Dollars," because the settlement agreement already existed and the funds would be available within thirty days. When Ms. Gates agreed to the assignment, Respondent gave her a document printed on his letterhead and captioned, "Assignment of Settlement Proceeds," which was signed by Respondent and purportedly by Mr. Sanchez. In that document, Respondent committed "to observe all terms of [the assignment agreement] and ... to withhold such funds from any settlement, judgment or verdict as may be necessary to adequately protect Gates Bail Bonds."

Furthermore, notwithstanding Respondent's agreement to withhold funds from the proceeds of Mr. Sanchez's worker's compensation case, Judge Whalen found that Martin Gerel, Esquire, of the law firm of Ashcraft & Gerel, not Respondent, represented Mr. Sanchez in that case. The hearing judge also determined that, although Respondent did not state affirmatively to Ms. Gates that he represented Mr. Sanchez in the worker's compensation case, Respondent lead her to believe that he did. In any event, Mr. Gerel, never having been informed by Respondent of the assignment, did not contact Ms. Gates before disbursing to Mr. Sanchez his share of the worker's compensation proceeds. Mr. Sanchez neither contacted Ms. Gates upon his release from jail nor appeared for trial. As a result, Gates Bail Bonds was not paid its fee and the bond posted by Gates Bail Bonds was forfeited.

Investigating Ms. Gates' complaint against Respondent, one of Petitioner's investigators, Mr. Peregoy, visited the building in which Respondent's office was located on 19 November 1998, finding a lobby sign describing Barneys as an "attorney at law" and "a law office sign in Respondent's name outside his suite." In response to Petitioner's subsequent letter apprising him of the Gates' complaint and threatening to seek an injunction unless he closed *1044 his Langley Park Office, Respondent agreed in a reply letter of 12 December to close his practice on New Hampshire Avenue, including removing the sign outside his suite door. The removal of the suite sign was confirmed by the investigator during a second visit to the building on 28 December 1998. Respondent later removed his business cards from open view and availability, although the lobby sign had not been removed, as of 22 January 1999, the date of the investigator's third visit to Respondent's Maryland office.

As indicated, on these findings, the hearing judge concluded that Respondent committed each of the rule violations charged. With respect to the MRPC 4.1 violation, Judge Whalen's determination depended on crediting Ms. Gates' belief that Respondent represented Mr. Sanchez in the worker's compensation case and, in particular, on whether she was justified in so believing. Concluding that Respondent "held out to Ms. Gates of Gates Bail Bonds, that he represented Mr. Sanchez in the worker's compensation case," the hearing judge reasoned that "[R]espondent's conversations and actions led Ms. Gates to believe that he in fact represented Mr. Sanchez on his worker's compensation case. Her belief that Respondent represented Mr. Sanchez and could disburse the settlement proceeds, led her to post bond on behalf of Mr. Sanchez."

The MPRC 8.1(a) violation was premised on three factual findings: that Respondent made a false statement on his Petition for Admission to the Maryland Bar—representing that he practiced only in the District of Columbia, when he actually had an office in Maryland and was engaging in the unauthorized practice of law; that Respondent told Petitioner's investigator that he had only one Maryland client; and that Respondent entered his appearance, without special permission and while not a Maryland lawyer, in the cases of clients other than Mr. Sanchez, and otherwise represented those clients.^[13] As to the MRPC 8.4(b), (c), and (d) violations, the hearing judge stated the basis for his conclusion that Respondent also committed those violations, as follows:

Respondent was less than truthful with Ms. Gates and led her to believe that he had the ability to disburse the settlement proceeds. Moreover, Respondent was deceitful and dishonest to the judges of the District and Circuit Courts of Prince George's County by entering his appearance on behalf of clients when he knew that he was not authorized to practice law in the state of Maryland.

....

Although Petitioner did not allege with specificity what conduct Respondent engaged in to violate this subsection of 8.4[(d)], the Court finds that the overall conduct of Respondent as detailed in the Findings of Fact shows that Respondent's conduct was prejudicial to the administration of justice.

The hearing judge further noted in his conclusions of law that Respondent did not dispute "that he violated [MRPC] 5.5(a)" and [MRPC] 7.5[(a), (b), and (d)], and "admitted his violations of §§ 10-601 and 10-602 of the Business Occupations and Professions Article of the Maryland Code."

Petitioner took no exceptions to the findings of fact or conclusions of law. The recommendation for sanction filed by Petitioner seeks Respondent's disbarment.^[14]*1045 In support of that recommendation, Petitioner reminds us of our decision in Attorney Grievance Comm'n v. Harper and Kemp, 356 Md. 53, 70, 737 A.2d 557, 566 (1999), where we stated that "unadmitted attorneys must be deterred from attempting to practice law in violation of the statutory prohibition against unauthorized practice." Petitioner asserts that there is "no reasonable basis" on which Respondent "could have thought that his conduct was lawful." Petitioner also cites the various instances of misrepresentation in which the hearing judge found Respondent engaged. In summary, citing our decision in Attorney Grievance Comm'n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001), Petitioner argues:

The Respondent has displayed a total absence of respect for the law by his conduct in this matter. In addition to the unauthorized practice of law, he repeatedly engaged in other conduct involving dishonesty, fraud, deceit and misrepresentation. For such conduct, the appropriate sanction is disbarment.

Respondent took exception only to one of the hearing judge's findings, namely, that Respondent was untruthful about the full extent of his representation of clients in Maryland when responding to Petitioner's investigator's inquiries on the subject. Respondent filed a Recommendation for Sanctions asserting that the appropriate punishment for his conduct is a two-year prohibition against re-filing an application for admission to the Maryland Bar. Acknowledging that he engaged in the unauthorized practice of law, Respondent posits, nonetheless, that his conduct did not rise to the level of that confronting this Court in Harper and Kemp. He asserts that his violation of MRPC 5.5(a) was not a "deliberate and persistent" violation, as was committed in Harper and Kemp; rather, he now maintains, "even though [his] office was in Maryland, [he] primarily represented clients before the courts of the District of Columbia with the exception of the representation of five clients whom [he] represented in the Maryland Courts." Moreover, Respondent notes his cooperation with Petitioner, pointing specifically to his voluntary closure of the Maryland office without requiring Petitioner to obtain an injunction for that purpose and his relocation of the office in early 1999 to the District of Columbia, where he has operated ever since. Further, Respondent expresses his remorse, stating as follows:

Respondent is deeply remorseful for his conduct in this case and has no prior disciplinary record in any jurisdiction. When Respondent opened his office in Maryland, Respondent was a new solo practitioner and was not aware of the prohibition of operating a law office in Maryland even where the primary law practice was in the District of Columbia. Respondent, however, was fully aware of the prohibition of entering his appearance in the Maryland Courts. For that, Respondent believes he should be punished. *1046 However, the appropriate sanction is not disbarment but rather an Order preventing Respondent from applying for admission to the Maryland Bar for a period of two years.

Other than asserting that he excepted to one of the hearing judge's factual findings and stating the point of disagreement, Respondent presented absolutely no argument in support of the exception. Failure to present argument in support of an exception is a sufficient basis on which to overrule the exception or, at least, not consider it.

Perhaps Respondent's failure to argue more expansively in support of his exception is explained by his recognition that, in attorney discipline cases, we review the findings of the hearing judge to determine whether they are based on clear and convincing evidence, see Attorney Grievance Comm'n v. Powell, 328 Md. 276, 287, 614 A.2d 102, 108 (1992); Attorney Grievance Comm'n v. Clements, 319 Md. 289, 298, 572 A.2d 174, 179 (1990), and that the "hearing court's findings of fact are prima facie correct and will not be disturbed unless they are shown to be clearly erroneous." Attorney Grievance Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Attorney Grievance Comm'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (1993)). Here, there certainly is sufficient evidence in the record to support the hearing judge's finding that Respondent misrepresented to Petitioner's investigator the number of clients on whose behalf he was engaged, or had been engaged, in the unauthorized practice of law. Consequently, the finding is far from clearly erroneous.

II.

The purpose of the sanction imposed on an attorney following disciplinary proceedings is the same as for the proceedings themselves, which is well settled and often stated by this Court: to protect the public rather than to punish the attorney who engages in misconduct. See Attorney Grievance Comm'n v. Jeter, 365 Md. 279, 289, 778 A.2d 390, 396 (2001); Attorney Grievance Comm'n v. Tolar, 357 Md. 569, 584, 745 A.2d 1045, 1053 (2000); Attorney Grievance Comm'n v. Myers, 333 Md. 440, 446, 635 A.2d 1315, 1318 (1994); Goldsborough, 330 Md. at 364, 624 A.2d at 513; Attorney Grievance Comm'n v. Protokowicz, 329 Md. 252, 262, 619 A.2d 100, 105 (1993); Attorney Grievance Comm'n v. Hamby, 322 Md. 606, 611, 589 A.2d 53, 56 (1991); Attorney Grievance Comm'n v. Myers, 302 Md. 571, 580, 490 A.2d 231, 236 (1985); Attorney Grievance Comm'n v. Velasquez, 301 Md. 450, 459, 483 A.2d 354, 359 (1984); Attorney Grievance Comm'n v. Montgomery, 296 Md. 113, 119, 460 A.2d 597, 600 (1983). As a result, this Court has firmly established the importance of sanctions in deterring attorneys from violating the disciplinary rules. See Goldsborough, 330 Md. at 364, 624 A.2d at 513; Protokowicz, 329 Md. at 262-63, 619 A.2d at 105. As we explained in Attorney Grievance Comm'n v. Garfield,

[t]he public interest is served when this Court imposes a sanction which demonstrates to members of this legal profession the type of conduct that will not be tolerated. By imposing such a sanction, this Court fulfills its responsibility to insist upon the maintenance of the integrity of the Bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. Therefore, the public interest is served when sanctions designed to effect general and specific deterrence are imposed on an attorney who violates the disciplinary rules.

369 Md. 85, 98, 797 A.2d 757, 764 (2002) (quoting Attorney Grievance Comm'n v. Dunietz, 368 Md. 419, 428, 795 A.2d 706, 711 (2002) (internal quotations omitted) (quoting Attorney Grievance Comm'n v. *1047 Wallace, 368 Md. 277, 289, 793 A.2d 535, 542-43 (2002) (citations omitted))). See also Attorney Grievance Comm'n v. Lane, 367 Md. 633, 642, 790 A.2d 621, 626 (2002); Attorney Grievance Comm'n v. Harris, 366 Md. 376, 405, 784 A.2d 516, 532-33 (2001); Attorney Grievance Comm'n v. Zdravkovich, 362 Md. 1, 31-32, 762 A.2d 950, 966 (2000). "`Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case,'" Garfield, 369 Md. at 98, 797 A.2d at 764 (quoting Dunietz, 368 Md. at 428-29, 795 A.2d at 711 (citation omitted)), and "`tak[es] account of any particular aggravating or mitigating factors.' "Id. (quoting Attorney Grievance Comm'n v. Glenn, 341 Md. 448, 484, 671 A.2d 463, 481 (1996) (citing Attorney Grievance Comm'n v. Myers, 333 Md. 440, 447, 635 A.2d 1315, 1318 (1994))).

A.

Unauthorized Practice of Law (MRPC 5.5(a))—The Flagship Violation

Our research reveals six relatively recent cases dealing with attorneys whose flagship violations were of MRPC 5.5(a) (the prohibition against unauthorized practice of law). In five of those cases, the attorney was disbarred. See Attorney Grievance Comm'n v. Johnson, 363 Md. 598, 770 A.2d 130 (2001); Attorney Grievance Comm'n v. Briscoe, 357 Md. 554, 745 A.2d 1037 (2000); Attorney Grievance Comm'n v. Harper and Kemp, 356 Md. 53, 737 A.2d 557 (1999); Attorney Grievance Comm'n v. James, 355 Md. 465, 735 A.2d 1027 (1999); Attorney Grievance Comm'n v. Kennedy, 319 Md. 110, 570 A.2d 1243 (1990). In the remaining case, Attorney Grievance Comm'n v. Harris-Smith, 356 Md. 72, 737 A.2d 567 (1999), the Court imposed a 30 day suspension. A review of these cases and a comparison with Respondent's case indicates that the present case has more in common with the cases that resulted in disbarment than the isolated result of the suspension in Harris-Smith. In addition, evidence of mitigation in this record, such as it is, is insufficient to suggest that disbarment is not the proper sanction here.

1. The Exception

In Harris-Smith, we concluded that Harris-Smith violated MRPC 5.5(a), 356 Md. at 85, 737 A.2d at 574, but identified at least two factual considerations not present in the prior unauthorized practice cases where disbarment was the typical result: (1) Harris-Smith did not represent clients in Maryland state court proceedings, and (2) Harris-Smith, who was admitted to the bar of the United States District Court for the District of Maryland, made some effort to conduct her practice in Maryland within the practice limits associated with her admission to the federal court. Harris-Smith was admitted to the bars in Pennsylvania and Virginia, as well as the Maryland federal court, and specialized in bankruptcy law. Between 1993 and 1995, she shared a practice in Landover, Maryland, with three attorneys, two of whom were admitted to the Maryland Bar. The law firm promoted itself through radio and newspaper advertising. The radio advertisements "targeted those listeners for whom filing for bankruptcy was likely to be appropriate, yet it [sic] did not state that [Harris-Smith's] practice was limited to bankruptcy law and [the Maryland federal court]." Harris-Smith, 356 Md. at 76, 737 A.2d at 569. Harris-Smith's role in the law firm was to "prescreen" (a term she used) prospective clients. When she determined that a client's matter involved bankruptcy law, she proceeded to represent the client without the supervision of a Maryland attorney. When representation in a State court was required, however, she would refer the client to one of the firm's other attorneys admitted in Maryland.

*1048 Based on this conduct, we nonetheless found that Harris-Smith violated MRPC 5.5(a). In doing so, we rejected her defense that she "pinpointed" bankruptcy cases and therefore limited herself to federal legal matters. As we explained in a parenthetical, the "unauthorized practice of law includes `[u]tilizing legal education, training, and experience ... [to apply] the special analysis of the profession to a client's problem.'" Harris-Smith, 356 Md. at 83, 737 A.2d at 573 (alteration in original) (quoting Somuah v. Flachs, 352 Md. 241, 262, 721 A.2d 680, 690 (1998) (quoting Kennedy v. The Bar Ass'n of Montgomery County, 316 Md. 646, 662, 561 A.2d 200, 208 (1989))). In addition, we noted that "[t]here is a danger that lawyers in the position in which Smith placed herself `would be motivated to cant advice artificially in the safe direction,'" Harris-Smith, 356 Md. at 84, 737 A.2d at 573 (quoting C.W. Wolfram, Sneaking Around in the Legal Profession: Interjurisdictional Unauthorized Practice by Transactional Lawyers, 36 S. TEX. L. REV. 665, 698 (1995)), and that "the operation of the triage by the unadmitted attorney, from an office for the general practice of law in Maryland," might be "used `as a shield behind which to conduct an unlimited-in-fact law practice.'" Id.

In our consideration of the appropriate sanction, we gauged the graveness of Harris-Smith's conduct against MRPC 8.4 generally (see supra note 7) and concluded that her conduct did not reach the level of a violation of MRPC 8.4(b) and (c), "both of which would be serious violations going to the attorney's integrity." Harris-Smith, 356 Md. at 90, 737 A.2d at 577.^[15] Reasoning that Harris-Smith's unauthorized practice of law "result[ed] from [her] attempt to practice within the limits of her admission to the bar of the federal district," we acknowledged that her "attempt was unsuccessful solely at the beginning of the process, when [Harris-]Smith analyzed the problems presented by those who sought her services and advised them how to proceed." Id. Therefore, taking into account the fact that Harris-Smith subsequently moved her office from Maryland to the District of Columbia, we found that a 30 day suspension was sufficient "to deter other unadmitted attorneys from undertaking a federal practice from an office in Maryland from which the non-admitted attorney would hold himself or herself out to the public as generally practicing law in order to identify cases that the attorney was authorized to handle." Harris-Smith, 356 Md. at 91, 737 A.2d at 577.

In imposing the 30-day suspension, we noted that Harris Smith's admission to the Maryland federal court distinguished her case from two other cases, Harper and Kemp and James, where the violations of MRPC 5.5(a) resulted in disbarment because those cases "presented purely a territorial issue with no federal overlay." Harris-Smith, 356 Md. at 91, 737 A.2d at 577. We also found implicitly the facts of Harris-Smith to be more similar to situations where a violation of MRPC 5.5(b) had occurred, involving attorneys admitted to the Maryland Bar who assist unadmitted lawyers or lay persons in the practice of law in Maryland. Thus, we explained that Harris-Smith's case, for purposes of the sanction, was analogous to Attorney Grievance Comm'n v. Hallmon, 343 Md. 390, 681 A.2d 510 (1996), where an attorney was suspended for 90 days for failing to maintain a trust account, failing to respond to Bar Counsel, and assisting a lay person in the unauthorized practice of law.^[16]*1049 Harris Smith, 356 Md. at 92, 737 A.2d at 578.

2. The Twilight Zone

The significance of the "federal overlay" relied on in Harris-Smith is evident in Kennedy v. The Bar Ass'n of Montgomery County, 316 Md. 646, 561 A.2d 200 (1989). In Kennedy, the Bar Association of Montgomery County brought suit and obtained a permanent injunction "directed at preventing continuation of the illegal conduct [(unauthorized practice of law)] in which the court found Kennedy to be engaged." Kennedy, 316 Md. at 668, 561 A.2d at 211.^[17] Kennedy, who was admitted to the District of Columbia Bar and the Maryland federal court, had a law office in Silver Spring, Maryland. His partner, Edward Jasen, was a member of the Maryland and District of Columbia Bars. As we explained, "Kennedy produced ninety percent of the business for the firm, and did eighty to ninety percent of the work done by the firm in the office.... Jasen and Kennedy almost always presented themselves together before the court. But Jasen rarely moved for Kennedy's pro hac vice admission...." Kennedy, 316 Md. at 653, 561 A.2d at 204.

In modifying the broad injunction of the Circuit Court, we addressed Kennedy's "claimed right to practice federal and non-Maryland law [in Maryland]." Kennedy, 316 Md. at 661, 561 A.2d at 207. While we acknowledged that the "federal overlay" permitted by Kennedy's admission to the federal court in Maryland enabled Kennedy to practice law before the local federal court, Kennedy, 316 Md. at 661, 561 A.2d at 208, we rejected Kennedy's contention that he was free to practice federal and non-Maryland law from his Silver Spring office. Stating that "Kennedy's theory ... would ... permit the unadmitted attorney to advise the client concerning only a portion of the general legal spectrum but then prohibit the unadmitted attorney from advising as to the balance of the spectrum," Kennedy, 316 Md. at 662-63, 561 A.2d at 208, we further pointed out, similar to Harris-Smith, that "[Kennedy] is not permitted to sort through clients who