Attorney Grievance Commission v. Stein
373 Md. 531, 819 A.2d 372, 2003 Md. LEXIS 93 (2003)
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Rule of Law:
An attorney who prepares an instrument, such as a will, that provides a substantial gift to the attorney from a client to whom the attorney is not related, and where the client has not consulted independent counsel, violates Rule 1.8(c) of the Rules of Professional Conduct, warranting an indefinite suspension.
Facts:
- Eleanor Lindinger and her husband were longtime clients and friends of the father of respondent Charles F. Stein, III.
- After the deaths of her husband and Stein's father, Lindinger continued her attorney-client relationship with Stein, who prepared wills for her in 1982 and 1988.
- In 1998, Lindinger asked Stein to prepare a new will with substantial changes.
- During discussions about the new will, Lindinger agreed to make Stein a residuary legatee, which would give him one-third of her remaining estate.
- Stein suggested Lindinger speak with another attorney within his own law firm about the bequest but did not advise her of the necessity of seeing an independent attorney outside the firm.
- Lindinger did not consult with any other attorney regarding the bequest to Stein before executing the will on May 27, 1998.
- Lindinger died on March 22, 2001, and was considered competent to manage her affairs until very near the end of her life.
- The bequest to Stein from the estate was valued at approximately $117,000.
Procedural Posture:
- The Attorney Grievance Commission filed a petition for disciplinary action against Charles F. Stein, III, in the Maryland Court of Appeals, the state's highest court.
- The Court of Appeals referred the case to a judge in the Circuit Court for Baltimore County to conduct a hearing and make findings of fact.
- At the hearing, the parties submitted a joint stipulation of facts.
- The hearing judge concluded that Stein had violated Rule 1.8(c).
- Neither party filed exceptions to the hearing judge's findings of fact and conclusions of law.
- The case returned to the Court of Appeals for the sole determination of the appropriate sanction to be imposed.
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Issue:
Is an indefinite suspension the appropriate sanction for an attorney who violates Rule 1.8(c) by preparing a will for a non-related client that provides a substantial gift to the attorney, where the client did not have independent counsel?
Opinions:
Majority - Raker, J.
Yes, an indefinite suspension is the appropriate sanction. A violation of Rule 1.8(c) is a most serious offense that undermines public confidence in the legal profession by creating a significant conflict of interest and potential for undue influence. The rule is mandatory and is not waived by the client's consent; it requires either a familial relationship or consultation with truly independent counsel, which was not satisfied here by suggesting consultation with a lawyer in the same firm. The attorney's ignorance of the rule is no defense, as he acted with conscious awareness of the conflict. While the attorney's prior clean record is a mitigating factor, it does not reduce the seriousness of the offense to a mere reprimand. The court declines to require the attorney to renounce the bequest as a condition for reinstatement, leaving the issue of the gift's validity to be resolved in the separate probate proceedings.
Dissenting - Wilner, J.
No, the sanction of indefinite suspension alone is insufficient to protect the public. The most effective sanction to deter this type of misconduct is to require the attorney to renounce the financial gain obtained through the violation. By allowing the attorney to potentially profit from his wrongdoing, the court fails to remove the primary incentive for violating the rule. Requiring disgorgement of the bequest would send a clear message that such ethical breaches will yield no benefit, thereby providing the strongest possible protection for the public, analogous to the exclusionary rule in criminal procedure. The court has removed from its arsenal the one sanction that would be most appropriate and effective.
Concurring - Cathell, J.
Yes, an indefinite suspension is the correct sanction at this stage. While the dissent's argument for renunciation of the legacy has merit, that issue is better addressed at a later point in the process. If and when the suspended attorney petitions for reinstatement to the bar, his voluntary renunciation of the improper legacy should be a key factor in considering his rehabilitation and fitness to resume the practice of law. Therefore, the issue of renunciation should be considered during the readmission process rather than being imposed as an initial condition of the sanction.
Analysis:
This decision establishes indefinite suspension as the presumptive sanction in Maryland for attorneys who draft instruments giving themselves substantial gifts from clients in violation of Rule 1.8(c). The court emphasizes the rule's strict, mandatory nature, intended to prevent undue influence and protect public confidence in the legal profession. Importantly, the court chose to separate the disciplinary sanction from the civil remedy, declining to compel the attorney to renounce the bequest and instead leaving the gift's validity to be contested in probate court. This separation solidifies the distinct purposes of attorney discipline (protecting the public) versus civil litigation (resolving private disputes), setting a precedent for how similar cases involving financial gain from misconduct may be handled in the future.
