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Attorney Grievance Commission of Maryland v. Sweitzer

Court of Appeals of Maryland

February 22, 2017

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND
v.
PHILIP JAMES SWEITZER

          Argued: November 3, 2016

         Circuit Court for Washington County Case No. 21-C-16-056210

          Barbera, C.J., Greene, Adkins, McDonald, Watts, Hotten, Getty, JJ.

          OPINION

          BARBERA, C.J.

         Petitioner, 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)[1] leading to a violation of Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 8.4(b), (c), and (d).[2] 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), [3] enabling Bar Counsel to file the Petition pursuant to Maryland Rules 16-751(a)(2)[4] and 16-771(b).[5]

         On June 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), [6] 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.

         Respondent 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).

         On 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 law.[7]

         The 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 argument.

         We 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."

         I

         The Hearing Judge's Findings of Fact

         The hearing judge made the following findings of fact by clear and convincing evidence. See Md. Rule 16-757(b).[8] 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.[9]

         The 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 court.

         In 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. Gerwin. Id.

         Meanwhile, 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.

         In 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.

         On 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.

         The 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 16-771(g) provides:

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 imposed.[10]

         The Hearing Judge's Conclusions of Law

         The 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 and ...


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