Argued: November 3, 2016
Court for Washington County Case No. 21-C-16-056210
Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten,
the Attorney Grievance Commission of Maryland, acting through
Bar Counsel, filed in this Court on May 21, 2014, a Petition
for Disciplinary or Remedial Action (the
"Petition") against Respondent, Philip James
Sweitzer. Bar Counsel charged Respondent with engaging in
"professional misconduct" within the scope of
Maryland Rule 16-701(i) leading to a violation of Maryland
Lawyers' Rules of Professional Conduct
("MLRPC") 8.4(b), (c), and (d). Those charges
arise from Respondent's felony theft conviction in the
Circuit Court for Howard County. Felony theft is a
"serious crime" within the meaning of Maryland Rule
16-701(k)(1),  enabling Bar Counsel to file the Petition
pursuant to Maryland Rules 16-751(a)(2) and
19, 2014, this Court issued an order instructing Respondent
to show cause why he should not be suspended immediately from
the practice of law in Maryland until further order of this
Court. After receipt of the parties' respective responses
to the Show Cause Order, pursuant to Maryland Rule 16-771(c),
this Court issued an order on September 22, 2014, suspending
Respondent from the practice of law in the State of Maryland,
effective immediately, pending further order of the Court.
appealed his conviction to the Court of Special Appeals and
on May 26, 2015, in an unreported opinion, the intermediate
appellate court affirmed Respondent's conviction.
Sweitzer v. State, No. 582, slip op. at 23 (Md. Ct.
Spec. App. May 26, 2015). On September 21, 2015, this Court
denied Respondent's petition for a writ of certiorari.
Sweitzer v. State, 445 Md. 7 (2015).
January 29, 2016, Bar Counsel filed a Motion for Further
Proceedings in this matter. On February 2, 2016, this Court
transmitted the matter to the Circuit Court for Washington
County and designated the Honorable Daniel P. Dwyer (the
"hearing judge") to conduct an evidentiary hearing
and make findings of fact and conclusions of
hearing judge held a hearing on June 29, 2016. Respondent did
not attend the hearing. Thereafter, the hearing judge issued
written findings of fact and conclusions of law.
Notwithstanding his absence from the hearing, Respondent has
filed exceptions. Those exceptions, rather than challenging
the hearing judge's findings of fact or conclusions of
law, generally attack the underlying criminal conviction, the
Court of Special Appeals' opinion affirming the
conviction, and this Court's denial of Respondent's
certiorari petition. Respondent also filed a "Second
Motion to Terminate Petition for Disciplinary Action, and/or
to Disqualify Bar Counsel Glenn Grossman, Esq., Deputy Bar
Counsel Raymond Hein, Esq., and Assistant Bar Counsel
Marianne J. Lee, Esq., " which, in an order filed on
September 14, 2016, this Court deferred pending oral
heard argument on November 3, 2016. Respondent did not appear
at that hearing. Bar Counsel recommended disbarment as the
appropriate sanction. We issued a per curiam order on
November 4, 2016, disbarring Respondent immediately from the
practice of law in the State of Maryland. We now explain the
reasons for that order, including our decision to overrule
Respondent's exceptions and our conclusion that
Respondent violated MLRPC 8.4(b), (c), and (d). On December
2, 2016, Respondent filed a "Motion to Reconsider and
Vacate Disbarment Order, to Reinstate and to Reset Oral
Argument." For the reasons stated in this opinion, we
hereby deny that motion. We hereby also deny Respondent's
"Second Motion to Terminate Petition for Disciplinary
Action, and/or to Disqualify Bar Counsel Glenn Grossman,
Esq., Deputy Bar Counsel Raymond Hein, Esq., and Assistant
Bar Counsel Marianne J. Lee, Esq."
Hearing Judge's Findings of Fact
hearing judge made the following findings of fact by clear
and convincing evidence. See Md. Rule
16-757(b). Respondent was admitted to the Maryland
Bar on December 15, 2005. On February 13, 2013, Respondent
was indicted on the theft of property of Dr. Allen Tsai of at
least $10, 000 but less than $100, 000, which, pursuant to
Md. Code Ann., Crim. Law § 7-104 (2009, 2012 Repl.
Vol.), is a felony.
Honorable Dennis Sweeney, Senior Judge, presided over the
bench trial in the Circuit Court for Howard County, and, on
October 7, 2013, found Respondent guilty of felony theft. The
trial court relied on the following facts in reaching that
decision, as later recounted in the Court of Special
Appeals' opinion affirming the judgment of the trial
early 2011, Dr. Tsai hired Respondent to assist him in his
claim for disability benefits from his insurer, Penn Mutual
(the "Penn Mutual Case"). Sweitzer, slip
op. at 2. Respondent agreed to the representation for a flat
fee of $4, 000, which Dr. Tsai paid. Id. Dr.
Tsai's claim was premised on the medical opinion of Dr.
Gerwin, who eventually reversed his medical opinion and
concluded that Dr. Tsai was not totally disabled.
Id. As a result, Respondent urged Dr. Tsai to settle
the Penn Mutual case and pursue a possible claim against Dr.
Nu Image, a film company, filed a copyright claim against Dr.
Tsai, alleging that he illegally downloaded movies from the
internet (the "Nu Image Case"). Id.
Respondent also represented Dr. Tsai in that matter for a
flat fee of $1, 000, which Dr. Tsai paid. Id. at
2-3. When Respondent informed Dr. Tsai that Nu Image
indicated its willingness to settle the case for $2, 000, Dr.
Tsai sent Respondent $2, 000 to settle the case. Id.
at 3. Respondent did not settle the case, nor did he return
the $2, 000 to Dr. Tsai. Id. at 7. Dr. Tsai employed
another attorney to settle the Nu Image Case but was unable
to recover his $2, 000 from Respondent. Id.
early 2012, Respondent informed Dr. Tsai that Penn Mutual
would settle its case for $40, 000-$50, 000. Id. at
3. Eventually, Dr. Tsai agreed to settle for $54, 000, and
the settlement agreement was executed on May 21, 2012.
Id. Per the terms of the settlement agreement, Penn
Mutual sent Respondent the settlement funds. Id. The
disbursement sheet Respondent sent to Dr. Tsai indicated that
Dr. Tsai was to receive $54, 881.93. Id. Over the
following months, Dr. Tsai made "repeated attempts to
get his settlement proceeds" from the Penn Mutual Case.
Id. During that time, Respondent exhibited a
"collection of excuses and [a] litany of impediments
that allegedly prevented him from delivering Dr. Tsai's
funds." Id. Respondent never paid Dr. Tsai the
$54, 881.93 in settlement proceeds from the Penn Mutual Case.
Id. at 4-7.
April 28, 2014, the trial court, having found Respondent
guilty of felony theft of property of at least $10, 000 but
less than $100, 000, sentenced him to five years of
incarceration, with all but one year suspended, to be
followed by two years of supervised probation. The court
ordered Respondent to pay restitution to Dr. Tsai in the
amount of $57, 000.
hearing judge, relying upon Maryland Rule 16-771(g), found
that Respondent's conviction of felony theft, affirmed by
the Court of Special Appeals, supplied "conclusive
evidence of his guilt of that crime." Maryland Rule
Conclusive effect of final conviction of
crime. In any proceeding under this Chapter, a final
judgment of any court of record convicting an attorney of a
crime, whether the conviction resulted from a plea of guilty,
nolo contendere, or a verdict after trial, is conclusive
evidence of the guilt of the attorney of that crime. As used
in this Rule, "final judgment" means a judgment as
to which all rights to direct appellate review have been
exhausted. The introduction of the judgment does not preclude
the Commission or Bar Counsel from introducing additional
evidence or the attorney from introducing evidence or
otherwise showing cause why no discipline should be
Hearing Judge's Conclusions of Law
hearing judge concluded that Respondent's theft
conviction, coupled with the facts pertinent to that crime as
discussed in the Court of Special Appeals' opinion,
established Respondent's violations of MLRPC 8.4(b), (c),
and (d). The hearing judge concluded that Respondent violated
MLRPC 8.4(b) because "it is beyond question" that
the act of theft constitutes a criminal act reflecting on
Respondent's honesty, trustworthiness, or fitness to
practice law. The hearing judge quoted a portion of the Court
of Special Appeals' rejection of Respondent's claim
that the conviction was not supported by legally sufficient
evidence: "[A] rational finder of fact could find,
beyond a reasonable doubt, that Sweitzer willfully or
knowingly exerted unauthorized control over [his client] Dr.
Tsai's property (specifically, the Penn Mutual settlement
and the funds to settle with Nu Image) and that he intended
to deprive Dr. Tsai of that property."
Sweitzer, slip op. at 10-11. The hearing judge
concluded that Respondent violated MLRPC 8.4(c) because, as
the Court of Special Appeals explained, there was
"copious evidence that Sweitzer was lying to his client,
stalling for time, and exploiting his client's friendship