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Attorney Grievance Commission of Maryland v. Nusbaum

Court of Appeals of Maryland

January 29, 2014

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
HARVEY MALCOLM NUSBAUM

Argued: February 6, 2012

Circuit Court for Baltimore County Case No. 03-C-11-007238

Barbera, C.J. Harrell Battaglia Greene Adkins McDonald [*] Bell, JJ.

OPINION

Bell, C.J.

The Attorney Grievance Commission of Maryland ("the petitioner"), acting through Bar Counsel and pursuant to Maryland Rule 16-751 (a), [1] filed a Petition for Disciplinary or Remedial Action against the respondent, Harvey M. Nusbaum. In that petition, the petitioner alleged that, by pleading guilty to a violation of 15 U.S.C. § 1, the Sherman Antitrust Act, the respondent admitted to the commission of a "serious crime, " within the meaning of Maryland Rule 16-771 (b), [2] and as defined in Maryland Rule 16-701 (k), [3] thereby violating Rule 8.4 (b), (c) and ((d), Misconduct, [4] of the Maryland Lawyers' Rules of Professional Conduct ("MRPC"), as adopted by Maryland Rule 16-812. The petitioner requested, pursuant to Maryland Rule 16-771 (c), [5] which the Court granted, by order dated August 17, 2010, the immediate suspension of the respondent from the practice of law.

As prescribed by Maryland Rule 16-771 (e)[6], acting pursuant to Maryland Rule 16-752 (a), we referred the Petition to the Honorable John J. Nagle, III, of the Circuit Court for Baltimore County for the evidentiary hearing required by Maryland Rule 16-757.[7] Following that evidentiary hearing, Judge Nagle made, pursuant to Maryland Rule 16-757 (c), [8] Findings of Fact, as follows:

"Respondent was admitted to the Maryland Bar on October 1, 1963.
"On June 16, 2009, Respondent was indicted in the United States District Court for the District of Maryland, along with co-defendant Jack W. Stollof, on a charge of engaging in a combination and conspiracy 'to suppress and eliminate competition by submitting non-competitive and collusive bids at certain auctions for tax liens conducted by a municipality and various counties within the District of Maryland.' The Indictment charged that the combination and conspiracy engaged in by the defendants and other co-conspirators was in unreasonable constraint of trade and commerce in violation of Section 1 of the federal Sherman Antitrust Act, 15 U.S.C. § 1. Respondent allegedly submitted the rigged bids described in the Indictment through certain limited liability companies that he co-owned with Mr. Stollof.
"On May 4, 2010, a judgment in a Criminal Case was entered by the United States District Court for the District of Maryland in the case of United States of America v. Harvey M. Nusbaum, Case N. JFM-1-09-CR-00328-001. This judgment of conviction was entered following Respondent's guilty plea to one count of violating the Sherman Antitrust Act. Judge J. Frederick Motz of the U.S. District Court sentenced Respondent to imprisonment for a term of 12 months and one day, to be followed by a two-year period of supervised release, and ordered payment of a monetary fine in the amount of $ 800, 000.00. The judgment also provided for Respondent to perform 100 hours of community service as a condition of probation.
"On July 13, 2010, Respondent reported to the Federal Correctional Institution in Cumberland, Maryland to begin serving his term of imprisonment. On May 26, 2011, he was released from custody. He is now on probation subject to supervision of the District of Maryland federal probation office."

Significantly, Judge Nagle expressly found that "Respondent presented no evidence of any mitigating factors or extenuating circumstances."

From those findings of fact, Judge Nagle concluded that the respondent violated MRPC 8.4 (b), (c), and (d). He reasoned:

"The final judgment of conviction entered against Respondent in the United States District Court for the District of Maryland is conclusive evidence of Respondent's guilt of engaging in an illegal combination and conspiracy in violation of 15 U.S.C. § 1. Maryland Rule 16-771 (g).[9] the crime of which Respondent stands convicted is a 'serious crime' as that term is defined in Maryland Rule 16-701 (k).
"Respondent engaged in professional misconduct that violated several sections of the Maryland Lawyers' Rules of Professional Conduct. By engaging in the illegal combination and conspiracy of which he stands convicted, Respondent committed a criminal act that reflects adversely on his honesty, trustworthiness or fitness as a lawyer in other respects, thereby violating Rule 8.4 (b). The underlying conduct that resulted in Respondent's conviction involved dishonesty, fraud, deceit or misrepresentation, in violation of Rule 8.4 (c). Finally, such conduct unlawfully affected the tax lien bidding process at auctions conducted in several Maryland jurisdictions and therefore was conduct prejudicial to the administration of justice, in violation of Rule 8.4 (d).

Neither the petitioner nor the respondent filed exceptions to the Findings of Fact and Conclusions of Law.[10] Accordingly, we shall "treat the findings of fact as established for the purpose of determining appropriate sanctions, if any." Maryland Rule 16-759 (b) (2) (A). On the other hand, we "shall review de novo the circuit court judge's conclusions of law, " as Rule 16-759 (b) (1) mandates that we do.

Our de novo review of Judge Nagle's conclusions of law convinces us that they are supported by the facts found and, so, we shall accept, and adopt, them as established by clear and convincing evidence.

Turning to the question of the appropriate disposition, [11] the petitioner filed its Petitioner's Recommendation for sanctions. It is that the respondent be disbarred. The petitioner submits:

"Respondent stands convicted of a 'serious crime' as that term is defined in Maryland Rule 16-701 (k). He engaged in an illegal combination and conspiracy 'to suppress and eliminate competition by submitting non-competitive and collusive bids' at tax lien auctions in various Maryland jurisdictions, leading to his conviction in the United States District Court for the District of Maryland of violating Section 1 of the federal Sherman Antitrust Act, 15 U.S.C. § 1. ... Respondent's actions while participating in the illegal combination and conspiracy constituted professional misconduct proscribed by Rule 8.4 of the Maryland Lawyers' Rules of Professional Conduct, including sections (b), (c) and (d) of that rule. ...
"Respondent offered no evidence of any extenuating circumstances, compelling or otherwise, that would justify a sanction less than disbarment for conduct that was criminal, dishonest, fraudulent and prejudicial to the administration of justice. In the absence of compelling extenuating circumstances, disbarment is the appropriate sanction to be imposed. See, e.g., Attorney Grievance Commission v. Garcia, 410 Md. 507, 979 A.2d 146 (2009) [, reinstatement granted sub nom. In re Garcia, 430 Md. 640, 62 A.3d 728 (2013), ] (respondent's conviction in federal court of conspiracy to commit immigration fraud resulted in disbarment), Attorney Grievance Commission v. Wingerter, 400 Md. 214, 929 A.2d 47 (2007)[, reinstatement granted sub nom. In re Reinstatement of Wingerter, 430 Md. 7, 59 A.3d 504 (2013)] (disbarment deemed appropriate following respondent's conviction in federal court of misprison of a felony)."

As earlier noted, the repondent and his counsel stood mute at oral argument, and, consequently, offered no recommendation as to the appropriate sanction. We agree with Bar Counsel's analysis. Indeed, Garcia and Winegerter follow inexorably from this Court's statement of the rule in 2001, in Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 418, 773 A.2d 463, 488 (2001): "Disbarment ordinarily should be the sanction for intentional dishonest conduct." See also Attorney Grievance Comm'n v. Pennington, 387 Md. 565, 597, 876 A.2d 642, 660-61 (2005); Attorney Grievance Comm'n v. Lane, 367 Md. 633, 646, 790 A.2d 621, 628 (2002). The rationale for this now well settled rule was enunciated most persuasively in Attorney Grievance Comm'n v. Ward, 396 Md. 203, 218, 913 A.2d 41, 50 (2006):

"This is so, because '[u]nlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse.' Vanderlinde, 364 Md. at 418, 773 A.2d at 488. Thus, like in the case of a misappropriation of entrusted funds, see Attorney Grievance Comm'n v. Bakas, 323 Md. 395, 403, 593 A.2d 1087, 1091 (1991), in the absence of compelling extenuating circumstances justifying a lesser sanction, intentional dishonest conduct by a lawyer will result in disbarment."

Accordingly, we adopted the petitioner's recommendation and for the foregoing reasons, we disbarred the respondent.


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