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Attorney Grievance Comm'n v. McDowell

Court of Appeals of Maryland

June 19, 2014

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
MATTHEW JOHN MCDOWELL & JOHN STEPHEN BURSON

Argued: April 29, 2014.

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[Copyrighted Material Omitted]

Page 713

Circuit Court for Montgomery County. Case No. 28110-M, Marielsa A. Bernard, JUDGE.

ARGUED BY James N. Gaither, Assistant Bar Counsel (Glenn M. Grossman, Bar Counsel, Attorney Grievance Commission of Maryland) FOR PETITIONER.

ARGUED BY Stanley J. Reed, Esq. (Learch, Early & Brewer of Bethesda, MD) and Deborah Murrell Whelihan, Esq. (Jordan Coyne & Savits, LLP of Washington DC) FOR RESPONDENTS.

ARGUED BEFORE Barbera, C.J., Harrell, Battaglia, Greene, Adkins, McDonald and, Watts, JJ. Opinion by Watts, J.

OPINION

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[439 Md. 30] Watts, J.

This attorney discipline proceeding involves a lawyer who " robo-signed" a large number of foreclosure-related documents,[1] [439 Md. 31] and the managing partner of the law firm at which the robo-signing occurred.

While John Stephen Burson (" Burson" ), Respondent, a member of the Bar of Maryland, was the managing partner of the law firm that is now Shapiro Brown & Alt, LLP (" the Shapiro Firm" ),[2] Matthew John McDowell (" McDowell" ), Respondent, a member of the Bar of Maryland and a lawyer at the Shapiro Firm, signed trustee's deeds[3] and affidavits on behalf of William M. Savage (" Savage" ), another lawyer and partner at the Shapiro Firm. At the Shapiro Firm, paralegals (who were also notaries public) notarized the trustee's deeds and affidavits. Although McDowell had signed the trustee's deeds and affidavits outside the paralegals' presence, the notary jurats stated that the trustee's deeds and affidavits had been signed in the paralegals' presence. The robo-signing and notarizations at the Shapiro Firm came to the attention of the Attorney

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Grievance Commission (" the Commission" ), Petitioner.

[439 Md. 32] On October 17, 2012, on the Commission's behalf, Bar Counsel filed in this Court a " Petition for Disciplinary or Remedial Action" against Burson and McDowell, charging Burson with violating Maryland Lawyers' Rule of Professional Conduct (" MLRPC" ) 5.1 (Responsibilities of Partners, Managers, and Supervisory Lawyers) and 5.3 (Responsibilities Regarding Nonlawyer Assistants); charging McDowell with violating MLRPC 5.2(a) (Responsibilities of a Subordinate Lawyer); [4] and charging Burson and McDowell with violating MLRPC 1.1 (Competence) and 8.4 (Misconduct).

On October 22, 2012, this Court designated the Honorable Marielsa A. Bernard (" the hearing judge" ) of the Circuit Court for Montgomery County to hear this attorney discipline proceeding. On July 9, 2013, the hearing judge conducted a hearing. On September 27, 2013, the hearing judge filed in this Court an opinion including findings of fact and conclusions of law that McDowell had not violated any MLRPC and that Burson: had violated MLRPC 5.1(a) and 5.3(a); had not violated MLRPC 1.1, 5.3(b), or 8.4; [5] was not vicariously responsible for McDowell's conduct under MLRPC 5.1(c); and was not vicariously responsible for the paralegals' conduct under MLRPC 5.3(c).

On April 29, 2014, we heard oral argument. For the below reasons, we reprimand Burson and McDowell.

[439 Md. 33] BACKGROUND

In her opinion, the hearing judge found the following facts, which we summarize.

In 1985, this Court admitted Burson to the Bar of Maryland. In June 1985, Burson helped form the Shapiro Firm, which represented mortgagees in foreclosure actions in Maryland and Virginia. Burson was the Shapiro Firm's managing partner.

On December 12, 2001, this Court admitted McDowell to the Bar of Maryland. In 2009 (for present purposes), McDowell began working for the Shapiro Firm.[6] Savage was McDowell's supervisor. At Savage's direction and over the relevant period of time, McDowell reviewed for accuracy trustee's deeds and affidavits in approximately 900 foreclosure actions and signed the trustee's deeds and affidavits on Savage's behalf. The affidavits contained averments regarding facts that trial courts had already found ( e.g., that the mortgagors were not serving in the military). McDowell had the legal knowledge that was reasonably necessary to review for accuracy the trustee's deeds and affidavits. McDowell was conscientious in reviewing for accuracy the trustee's deeds and affidavits; McDowell did not make any errors in doing so, and none of the trustee's deeds were defective or challenged in court.

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McDowell believed (albeit mistakenly) that it was not improper to sign trustee's deeds and affidavits on Savage's behalf. Burson neither ordered nor ratified McDowell's conduct.

At the Shapiro Firm, paralegals (who were also notaries public) notarized the trustee's deeds and affidavits that McDowell had signed on Savage's behalf. Although McDowell had signed the trustee's deeds and affidavits outside the paralegals' presence, the notary jurats stated that the trustee's deeds and affidavits had been signed in the paralegals' presence. Burson neither ordered nor ratified the paralegals' conduct; at the hearing, Burson testified that he believed that [439 Md. 34] the notarizations at the Shapiro Firm did not violate Virginia law.[7]

Sometime in or before 2010, two other lawyers at the Shapiro Firm signed each other's names on foreclosure-related documents. Various circuit courts issued show cause orders regarding the lawyers' signatures.

In 2011, Burson learned that McDowell had signed trustee's deeds and affidavits on Savage's behalf outside the paralegals' presence. Until then, Burson had made no efforts to ensure that the Shapiro Firm had in effect measures giving reasonable assurance that lawyers did not robo-sign documents and that paralegals did not falsely notarize documents. After learning that McDowell had signed trustee's deeds and affidavits on Savage's behalf outside the paralegals' presence, Burson made timely good faith efforts to rectify the misconduct's consequences and to prevent future misconduct by ensuring that McDowell's past signing of the trustee's deeds on Savage's behalf neither created any problems as to title nor necessitated that the trustee's deeds be executed again, requiring all employees at the Shapiro Firm to promise in writing that they would neither sign others' names nor allow others to sign their names, and requiring all notaries public at the Shapiro Firm to promise in writing that they would not violate laws regarding notarizations.

Burson is respected for his integrity. As a result of the robo-signing at the Shapiro Firm, Burson was sued, received adverse media coverage, voluntarily stopped the active practice of law, and withdrew from the Shapiro Firm, which no longer bears his name.

[439 Md. 35] Burson and McDowell have never before received attorney discipline. In the matter before us, they lacked dishonest or selfish motives, were cooperative with Bar Counsel, and showed remorse.

STANDARD OF REVIEW

In an attorney discipline proceeding, this Court reviews for clear error a hearing judge's findings of fact, and reviews without deference a hearing judge's conclusions of law. See Md. R. 16-759(b)(2)(B) (" The Court [of Appeals] shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses." ); Attorney Grievance Comm'n v. Reno, 436 Md. 504, 508, 83 A.3d 781, 783 (2014) (" [T]his Court reviews for clear error a hearing judge's findings of fact[.]" (Citations omitted)); Md. R. 16-759(b)(1) (" The Court of Appeals shall review de

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novo the [hearing] judge's conclusions of law." ). This Court determines whether clear and convincing evidence establishes that a lawyer violated the MLRPC. See Md. R. 16-757(b) (" The [Commission] has the burden of proving the averments of the petition [for disciplinary or remedial action] by clear and convincing evidence." ).

DISCUSSION

(A) Findings of Fact

Burson and McDowell state that they do not except to any of the hearing judge's findings of fact.[8] The Commission [439 Md. 36] excepts to the hearing judge's finding that, at the hearing, Burson testified that he believed that the notarizations at the Shapiro Firm did not violate Virginia law.

We need not rule on the exception; as Burson's counsel conceded at oral argument, the hearing judge's other findings of fact establish that the notarizations at the Shapiro Firm were false, regardless of whether Burson believed that the notarizations at the Shapiro Firm did not violate Virginia law. Specifically, the hearing judge found that, although McDowell had signed the trustee's deeds and affidavits outside the paralegals' presence, the notary jurats stated that the trustee's deeds and affidavits had been signed in the paralegals' presence. Although Va. Code Ann. ยง 55-118.3 permits a notary public to notarize a document that has been signed ...


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