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Attorney Grievance Commission v. Barry E. Sweitzer, AG N o. 69, S ept. Ter m 200 5. [Maryland Rules of Professional Conduct 1.3 (Diligence), 8.4 (c) and (d) (Misconduct); held: Respondent violated MRPC 1.3 by failing to verify that a deed has been recorded in the Garrett County Land Records Office and he also violated MRPC 8.4 (c) and (d) by presenting a Gift Certification Form to the Motor Vehicle Adm inistration in an attempt to deceive the MVA by misrepresenting the nature of the transfer of the vehicle to avoid paying sales tax and inspection fees, and by misre presenting that he had the authority to sign the Gift Certification Form on behalf of his former wife. For these violations, Respondent shall be indefin itely suspe nded.]

IN THE COURT OF APPEALS OF MARYLAND

Misc. Docket AG No. 69 September Term, 2005

ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. BARRY E. SWEITZER

Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ.

Opinion by Battaglia, J. Harrell and Greene, JJ., Dissent

Filed: November 20, 2006

The Attorney Grievance Commission of Maryland ("Petitioner"), acting through Bar Counsel and pursuant to M aryland Rule 16-751 (a), 1 filed a petition for disciplinary or remedial action against Respondent, Barry E. Sweitzer, on December 30, 2005, in which there were two complaints included, one by Bar Counsel, and the other by a client, James L. Sebold. W ith respect to the Complaint of James L. Sebold, it was alleged that Respondent violated Maryland Rule of Professional Conduct 1.3 (Diligence)2 by failing to act w ith reasonab le diligence and promptness in recording a deed conveying land to Mr. Sebold, which Respondent prepared, in the Land Records of Garrett County. With respect to the complaint of Bar C ounsel, it was allege d that Resp ondent ac ted deceitfu lly when he, under the penalties of perjury, presented a Gift Certification Form that contained a forged signature of his former wife to the Motor Vehicle Administration ("MVA"), misrepresented the nature of the transaction by presenting the Gift Certification Form for a vehicle purchased at auction, and misrepresented that he had his former wife's authority to sign the Gift Certification Form on her behalf, in violation of R ule 8.4 (b), (c), and (d) (Miscon duct). 3
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Maryland Rule 16-751 (a) provides: (a) Commencement of disciplinary or remedial action. (1) Upon approval of [the Attorney Grievance] Commission. Upon approval or direction of the [Attorney Grievance] Commission, Bar Counse l shall file a Peti tion for Disciplinary or Remedial Action in the Court of Appeals.

2

Rule 1.3 provides: A lawyer shall act with reaso nable diligen ce and pro mptness in representing a client.

3

Rule 8.4 p rovides in re levant part: (contin ued...)

In accordance with Maryland Rules 16-752 (a)4 and 16-757 (c), 5 we referred the petition to Judge Donald E. Beachley of the Circuit Court for Washington County for an evidentiary hearing and to make findings of fact and conclusions of law. Judge Beachley held a hearing on May 9, 2006, and on June 1, 2006, issued Findings of Fact and Conclusions of Law, in which he found by clear and convincing evidence that Respondent had violated Maryland Rules of Professional Conduct 1.3 with respect to Mr. Sebold's complaint and 8.4

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(...continued) It is professional misconduct for a lawyer to: * * *

(b) commit a criminal act that reflects adv ersely on the lawyer's honesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) engage in conduct th at is prejudicial to the administration of justice . . . .
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Maryland Rule 16-752 (a) states: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for maintaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the atto rney, to enter a scheduling order defining the extent of d iscovery and s etting dates f or the com pletion of discovery, filing of motions, and hearing.

5

Maryland R ule 16-75 7 (c) states in p ertinent part: The judge shall prepare and file or dictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. -2-

(c) and (d) w ith respect to B ar Coun sel's comp laint: Findings of Fact and Conclusions of Law "The Court finds that, except as otherwise indicated, the following facts have been established by convincing evidence: "1. Respondent graduated from W est Virginia U niversity Law School and was admitted to the Maryland Bar on December 16, 1999. "2. Respondent is currently a member in good standing of the Maryland Bar. I. Findings of Fact Concerning Complaint of Bar Counsel (Re: Transfer of Tahoe/Presentation of Gift Certification Form to MVA) "3. Respondent and Cristine Kepple were married on August 17, 1991. They separated in March, 2001 and were divorced by a Judgment of Absolute Divorce dated April 21, 2004. "4. Pursuant to an Order issued by the Circuit Court for Garrett County, Maryland dated July 14, 2004, certain items of personal property were to be sold at auction. One of the items to be sold at auction was a 1997 Chevrolet Tahoe titled in the joint names of Respondent and Ms. Kepple. "5. Responden t's father, acting as the agent of the Respon dent, purchased the 1997 Chevrolet Tahoe at the public auction on September 23, 2004 for $2,700.00. Respondent had intended to perso nally bid o n the T ahoe, b ut he was arrested when he arrived for the auction. "6. Ms. Kepple s igned the b ack of the Maryland C ertificate of Title for the Tahoe (Petitioner's E xhibit 5) and delivered it to the auctioneer prior to sale. "7. Due to her conc ern that Re sponden t may attempt to register the Tahoe without transferring title to his sole name, Ms. Kepple w rote to the M otor Veh icle Adm inistration ("MVA") to seek the a gency's assistan ce in ensuring that Respon dent transfe r title to the vehic le prior to its registration. A copy of M s. Kepple' s letter to the MVA dated September 27, 2004 was admitted as Petitioner's Exhibit 4. "8. On Novemb er 17, 2004, Respondent went to the MVA office in Cumberland for the purpose of transferring title to the -3-

Tahoe to his sole name. He was assisted at the MVA by customer service agent Eva Gibbs. Respondent presented Ms. Gibbs with the M aryland Certific ate of Title for the Tahoe and corresponding Gift Certification form. The Certificate of Title was properly signed by Respondent and Ms. Kepple. "9. In accordance with standard procedure, Ms. Gibbs entered the relevant information into the computer and discovered a `flag' pertaini ng to th is vehic le. The `flag' denoted `Investigative Services' o n the com puter and w as apparen tly generated as a result of Ms. Kepple's letter dated September 27, 2004. "10. Uncertain of the significance of the `flag,' Ms. Gibbs took both docu ments to co nsult with her supervisor. The supervisor directed M s. Gibbs to re tain the Cer tificate of T itle and Gift Certification form and specifically not give the docum ents to R espon dent. "11. Ms. Gibbs retu rned to the cus tomer s ervice c ounter , at which time she advised Respon dent there w as a problem with the transaction. Respondent asked Ms. Gibbs, `What's the proble m?,' to which Ms. G ibbs res ponde d, `I don 't know .' "12. Respondent then asked M s. Gibbs if h e could look at the paperwork (Certificate of Title and Gift Certification form). Ms. Gibbs, contrary to her supervisor's instructions, gave the two docume nts to Respo ndent, at w hich time h e tore off the Gift Certification form which had been stapled to the Certificate of Title and left the MVA office. Respondent did not take the Certificate of Title, which w as left on the counter. "13. The Gift Certification form presented to Ms. Gibbs was not produ ced at th e hearin g. However, Ms. Gibbs testified that a signature that purported to be Respondent's appeared on the `Signature of Giver' line and a signature purporting to be Cristine Kepple or Cristine Kepple Sweitzer appeared on the `Signature of Co-Giver' line. When questioned by the Court concerning her recollection of the signatures, Ms. Gibbs said she was `pretty sure' that the signature for Ms. Kepple was not in a represen tativ e cap acity. "14. Respondent testified that he signed his name on the `Signature of Giver' line and that he signed `Barry Sweitzer for C.K. Sweitzer' or `B.E. Sweitzer for C.K. Sweitzer' on the `Signature of Co-Giver' line. Respondent testified that he had the authority to sign the Gift Certification form on behalf of his -4-

wife based on statements made by Ms. Kepple's divorce attor ney. "15. As set forth in the Conc lusions of Law , infra, the Court cannot find by clear and convincing evidence that the Gift Certification form presented by Respondent to Ms. Gibbs contained a signature purporting to be Ms. Kepple's signature. "16. Respondent concedes he had no direct, expres s authority to sign the G ift Certification form on behalf of Ms. Kepple. Ms. Kepple confirmed that she did no t authorize R esponde nt to sign the Gift Certification form on her behalf and she had no intention of making a gift to Resp ondent. "17. The divorce proceeding between Respondent and Ms. Kepple was not amicable. According to Respondent, Ms. Kepple wou ld us e eve ry pos sible mea ns to caus e him diff icult y, including the filing of criminal charges. "18. Immedia tely above the `Signature of Giver' lines on the Gift Certif ication form is the follow ing stateme nt: `I/we certify under pe nalty of perjury that a ll statements made herein are true and correct to the best of my/our knowledge, information, and belief. I/we further certify that no money or other valuable considerations is involved in this transfer. T his transfer is not being made contrary to Maryland Vehicle Laws. "19. In the absence of a legally effective Gift Certification form, the MVA would charge a 5% tax on the sales price of $2,700.00, or $135.00, and the vehicle would have to be inspected. There is no sales tax or inspection requirement for vehicles transferred pursuant to a validly executed Gift Certification form. Conclusions of Law "Petitioner initially contends that Respondent violated Rules 8.4 (b), (c), and (d) by presenting a document with a forged signature to the MVA customer service represe ntative. Howeve r, after assessing Ms. Gibbs' testimony on this issue, this Court cannot conclude by clear and convincing evidence that the Gift Certification form presented to Ms. Gibbs contained a signa ture pu rporting to be M s. Kepple's. Hence, the Respondent did not violate Rules 8.4 (b), (c), or (d) in this respect. -5-

"Howev er, Respondent violated Rules 8.4 (c) and (d) by attempting to transfer title using the Gift Certification form. The Tahoe was purchased at a public auction and therefore was clearly not a gift to R esponde nt from his former spouse. Although the financ ial incentive to use to Gift Ce rtification form was minimal, Respondent was neverthele ss attempting to avoid paying the 5% sales tax and having the vehicle inspected. The Court finds by clear and convinc ing evidence that Re spondent's presentation of the Gif t Certification form w as an attem pt to deceive the MVA by misrepresenting the true nature of the transfer of the Ta hoe. Such action con stitutes a violation of Rules 8.4 (c) and (d). "Sim ilarly, the Court finds by clear and convincing evidence that Respo ndent did not have authority to sign the Gift Certification form on behalf of Ms. Kepple. Respondent's testimony that Ms. Kepple's divorce attorney gave him the authority to sign the Gift Certification form is simply not credible. Respondent and Mr. Kepple were involved in a rancorous divorce. It is improbable under these circumstances that Respondent was authorized to sign any docume nt on beha lf of Ms. Kepple in the Fall of 2004. Ms. Kepple, a member of the Maryland Bar, did not authorize Respondent to treat the transfer of the Tahoe as a gift. Respondent knew that the transfer was not as a result of a gift and the reasonable inference is that he did not attempt to obtain Ms. Kepple 's signature or express authority to sign on her behalf because Respondent knew Ms. Kepple would not comply. Th is conduct, established by clear and convincing evidence, is also a violation of Rules 8.4 (c) and (d). See generally , Attorney Grievance Comm'n v. Childress, 360 Md. 373, 384 (2000) (professional misconduct is not limited to con duct within the course of the attorney-client relationship). II. Findings of Fact Concerning Complaint of James Sebold "20. Sometime toward the latter part of 20 02, James Sebold requested Responden t to prepare a deed transferring certain real property to Ms. Sebold f rom his mother. "21. Respondent obtained a copy of the existing deed, prepared the new d eed, and m et with Mr. Sebold and his m other. -6-

The deed was signed by Mr. Sebold's mother and by Respon dent, as the p erson wh o prepared the docum ent. "22. Respondent attached the executed deed to a p roperty intake sheet and presented it to the Garrett Co unty Assessm ents Office (`Assessments Office') in accordance with his usual practice. Respondent testified that the normal practice was for a deed to be first presented to the Assessments Office, which would then be delivered b y the Assessm ents Office to the Land Records Office across the hall for recordation. "23. After recordation, Respondent would customarily receive the deed in his mail slot at the Court H ouse. However, at the time of this transaction, Respondent no longer had a mail slot as he was in the process of closing his law practice. He testified that he asked the Clerk in Land Records to mail the recorded deed to Mr. Se bold. "24. Respondent concedes that he did not follow u p to ensure that the deed h ad been re corded in th e Land R ecords of Garrett Cou nty. "25. The deed was never recorded in the Land Records of Gar rett C ounty. "26. Respondent did not maintain a copy of the deed. "27. The fee for service related to the Sebold transaction was $100.00 plus $25.00 recording costs. "28. The sum of $125.00 representing the legal fee and recording cost has been provided to Respondent's counsel to reimburse Mr. Sebold. Conclusions of Law "Respondent violated R ule 1.3 wh ich provide s that `[a] lawyer shall act with reasonable diligence and promptness in representing a client.' In transactions involving the transfer of title to real property, the most important le gal act is recordation of the deed in the land records of the county where th e property is situatio n. M D. C ODE. A NN., R EAL P ROP.

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