ATTORNEY GRIEVANCE COMM'N v. RENO [Reno II]

Holding: Because the attorney's conduct in giving a handgun to a person who she knew was not legally permitted to carry one, the Court suspended her from the practice of law for six months for engaging in conduct which is prejudicial to the administration of justice.

Alleged Violations: Maryland Lawyers’ Rules of Professional Conduct 8.4(d) (Conduct That Is Prejudicial to Administration of Justice) and 8.4(a) (Violating MLRPC).

Citation: 440 Md. 414 (2014)

Opinion

PANEL:  Barbera, C.J. Harrell Battaglia Greene Adkins McDonald Watts, JJ.

Opinion by Watts, J.

"This attorney discipline proceeding concerns a Maryland lawyer who purchased and gave a handgun to a person who could not legally possess a regulated firearm." Attorney Grievance Comm'n v. Reno ("Reno I"), 436 Md. 504, 505, 83 A.3d 781, 781 (2014).

On January 24, 2014, in Reno I, id. at 511-12, 83 A.3d at 785, we held that Sandra Lynn Reno ("Reno"), Respondent, a member of the Bar of Maryland, violated Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice) and 8.4(a) (Violating the MLRPC) by circumventing the law and giving a handgun to a former client who, as Reno should have known, could not legally possess a regulated firearm, despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved the former client's application to buy the same kind of handgun.[1] "Instead of determining an appropriate sanction on our own initiative, we g[a]ve Reno and the [Attorney Grievance] Commission [("the Commission"), Petitioner,] the opportunity to recommend a sanction[.]" Reno I, 436 Md. at 512, 83 A.3d at 786.

On September 10, 2014, we heard oral argument. For the below reasons, we suspend Reno from the practice of law in Maryland for six months.

BACKGROUND

    Hearing Judge's Findings of Fact

In Reno I, 436 Md. at 506-08, 83 A.3d at 782-83, we stated:Page 2

In her opinion, [the Honorable Jane Cairns Murray ("the hearing judge") of the Circuit Court for Cecil County] found the following facts, which we summarize.

On December 19, 1991, this Court admitted Reno to the Bar of Maryland. In 2002, Reno began practicing criminal law at the Law Offices of Jim Baldwin.

On or about February 18, 2004, Cortney Stevens [("Stevens")] was convicted of possession of a controlled dangerous substance other than marijuana. In 2005, Reno met Stevens and later served as his lawyer. In 2008, while represented by someone other than Reno, Stevens was convicted of making a false prescription. Sometime before 2010, Stevens informed Reno that he had a prior drug charge for which he received probation before judgment. Stevens also informed Reno of a prescription forgery charge.

On or about September 14, 2010, Stevens visited Chesapeake Guns, a firearms store in Stevensville. At Chesapeake Guns, Stevens completed an application to buy a .45 caliber 1911 handgun. In a letter dated September 22, 2010, the Firearms Registration Section of the Maryland State Police informed Stevens that his application had been disapproved. The letter did not include the reasons for Stevens's application's disapproval. Reno learned of the letter and testified that she thought that the reason for Stevens's application's disapproval was a minor issue such as a failure by Stevens to have paid a fine.

On November 6, 2010, Reno visited On Target, a firearms store in Severn. At On Target, Reno obtained a .45 caliber 1911 handgun ("the handgun"). Reno immediately transported the handgun to Stevens's place of employment, where she gave the handgun to Stevens.

On November 16, 2010, at her home, Reno was visited by Corporal Marcus Jackson and Senior Trooper First Class Ryan List ("the troopers") of the Gun Enforcement Unit of the Maryland State Police. The troopers told Reno that they were conducting a handgun investigation. Reno escorted the troopers to Stevens's home and retrieved the handgun, which the troopers confiscated.

Sometime between November 4, 2011, and November 16, 2011, Reno learned that the State had charged her with violating the statute that is currently codified at [Md. Code Ann., Pub. Safety (2003, 2011 Repl. Vol., 2013 Supp.) ("PS")] § 5-144. On February 28, 2012, in the Circuit Court for Anne Arundel County, Reno pled not guilty and joined [an] agreed statementPage 3 of facts. The Circuit Court for Anne Arundel County granted Reno probation before judgment. Sometime before October 21, 2013, the records of Reno's criminal case were expunged.

* * *

Reno should have known that Stevens was a prohibited person, but it was not established by clear and convincing evidence that Reno in fact knew that Stevens was a prohibited person.

(Brackets, emphasis, and some internal quotation marks omitted).

The hearing judge found that Reno: (1) has never before received attorney discipline; (2) reported herself to the Commission; (3) is "honest[] and forthright[]";[2] (4) suffered "great embarrassment"; and (5) withdrew her application to be a judge of the District Court of Maryland, sitting in Queen Anne's County.

Reno I

In Reno I, we determined that:

As the hearing judge found, it is undisputed that Reno gave the handgun (i.e., a regulated firearm)[3] to Stevens, who had been convicted of disqualifying crimes.[4]

* * *

Reno violated PS § 5-134(b)(2), a regulatory provision, which states that: "APage 4 ... person may not ... transfer a regulated firearm to a ... transferee who the ... person knows or has reasonable cause to believe ... has been convicted of a disqualifying crime[.]"

* * *

Reno violated MLRPC 8.4(d), which provides: "It is professional misconduct for a lawyer to ... engage in conduct that is prejudicial to the administration of justice[.]" ... Reno knew that: (1) Stevens had applied to buy a .45 caliber 1911 handgun; and (2) the Firearms Registration Section of the Maryland State Police disapproved Stevens's application. Nonetheless, Reno gave Stevens a handgun of the exact type for which he had applied. Even if (as the hearing judge found) Reno thought that the reason for Stevens's application's disapproval was a minor issue such as a failure by Stevens to have paid a fine, Reno nonetheless circumvented the law by giving the handgun to Stevens.

(Alterations, footnotes, and some ellipses in original) (emphasis, one footnote, internal quotation marks, and some brackets omitted).

DISCUSSION

The Commission recommends that we suspend Reno from the practice of law in Maryland for six months. Reno recommends that we reprimand her.

In Attorney Grievance Comm'n v. McDowell, 439 Md. 26, 45-46, 93 A.3d 711, 722-23 (2014), this Court stated:

This Court sanctions a lawyer not to punish the lawyer, but instead to protect the public and the public's confidence in the legal profession. This Court protects the public by: (1) deterring other lawyers from engaging in similar misconduct; and (2) suspending or disbarring a lawyer who is unfit to continue to practice law.

In determining an appropriate sanction for a lawyer's misconduct, this Court considers: (a) the duty violated; (b) the lawyer's mental state; (c) the potential or actual injury caused by the lawyer's misconduct; and (d) the existence of aggravating or mitigating factors.

Aggravating factors include: (a) prior attorney discipline; (b) aPage 5 dishonest or selfish motive; (c) a pattern of misconduct; (d) multiple violations of the MLRPC; (e) bad faith obstruction of the attorney discipline proceeding by intentionally failing to comply with the Maryland Rules or orders of this Court; (f) submission of false evidence, false statements, or other deceptive practices during the attorney discipline proceeding; (g) refusal to acknowledge the wrongful nature of the misconduct; (h) vulnerability of the victim; (i) substantial experience in the practice of law; (j) indifference to making restitution; and (k) illegal conduct, including that involving the use of controlled substances.

Mitigating factors include: (a) the absence of prior attorney discipline; (b) absence of a dishonest or selfish motive; (c) personal or emotional problems; (d) timely good faith efforts to make restitution or to rectify consequences of the misconduct; (e) full and free disclosure to the Commission or a cooperative attitude toward the attorney discipline proceeding; (f) inexperience in the practice of law; (g) character or reputation; (h) physical disability; (i) a mental disability or chemical dependency including alcoholism or drug abuse where: (1) there is medical evidence that the lawyer is affected by a chemical dependency or mental disability; (2) the chemical dependency or mental disability caused the misconduct; (3) the lawyer's recovery from the chemical dependency or mental disability is demonstrated by a meaningful and sustained period of successful rehabilitation; and (4) the recovery arrested the misconduct and recurrence of the misconduct is unlikely; (j) delay in the attorney discipline proceeding; (k) the imposition of other penalties or sanctions; (l) remorse; and (m) remoteness of prior violations of the MLRPC.

(Brackets, citations, footnote, and internal quotation marks omitted).

In Attorney Grievance Comm'n v. Howell, 434 Md. 1, 19, 8, 15, 73 A.3d 202, 213, 207, 211 (2013), this Court suspended from the practice of law in Maryland for one year a lawyer who violated MLRPC 8.4(b) (Criminal Act), 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation), and 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice). The lawyer forwarded to an inmate a letter from another inmate by secretly taping the letter to docket entries. See id. at 8, 73 A.3d at 206-07. The lawyer "knew [that] it was against prison policy to forward mail from inmate to inmate"; thus, the lawyer Page 6 "circumvent[ed] the law." Id. at 8, 73 A.3d at 206-07. The lawyer's misconduct had the potential to cause injury. See id. at 17, 73 A.3d at 212. This Court did not note any aggravating factors or mitigating factors.

Here, as to the duty violated, Reno violated MLRPC 8.4(d) by giving the handgun to Stevens, who could not legally possess a regulated firearm. As to Reno's mental state, Reno knew that the Firearms Registration Section of the Maryland State Police had disapproved Stevens's application to buy a handgun. From this information, Reno should have known that Stevens could not legally possess a regulated firearm. Nonetheless, Reno intentionally gave the same kind of handgun to Stevens.[5] Reno's misconduct -- giving a deadly weapon to a convicted felon -- had the potential to cause injury.[6]Page 7

We note two aggravating factors: (1) substantial experience in the practice of law, as Reno has been a member of the Bar of Maryland for almost twenty-three years and a criminal defense attorney for more than twelve years;[7] and (2) illegal conduct, as Reno violated PS § 5-134(b)(2).

We note three mitigating factors: (1) the absence of prior attorney discipline; (2) full and free disclosure to the Commission, as Reno reported herself to the Commission; and (3) character, as the hearing judge found that Reno is "honest[] and forthright[.]"

We reject the Commission's curious assertion that Reno's misconduct is mitigated by the absence of a conviction and the expungement of the records of Reno's criminal case. These circumstances do not correspond to any of the mitigating factors that this Court has identified in its attorney discipline jurisprudence. See McDowell, 439 Md. at 46, 93 A.3d at 723. Indeed, in an attorney discipline proceeding, this Court considers a lawyer's misconduct, regardless of the disposition of any criminal case that arises out of the lawyer's misconduct. See Howell, 434 Md. at 7 n.7, 73 A.3d at 206 n.7 ("Absence of criminal prosecution does not preclude violations of the MLRPC." (Citation omitted)).

We find no merit in Reno's contention that her misconduct is mitigated by the imposition of other penalties in the form of embarrassment and the "scar[r]ing of [her] rep[u]tation[.]" Generally, embarrassment and diminished reputation are not mitigating Page 8 factors. See Attorney Grievance Comm'n v. Goldsborough, 330 Md. 342, 362, 624 A.2d 503, 512 (1993) (This Court rejected a lawyer's contention that his misconduct was mitigated by "media attention[, which] already 'ruined' his reputation"; this Court stated: "Media attention, however embarrassing or humiliating to the attorney, is no substitute for the responsibility of this Court to enforce the [MLRPC]. Our role in these proceedings, unpleasant and difficult as it may sometimes be, is one of utmost importance, and we will not shirk it or delegate it to the media or public opinion.").[8] Indeed, as Chief Judge Barbera aptly pointed out at oral argument, if embarrassment or stress were definitively mitigating factors, they would apply in nearly every attorney discipline proceeding; "[t]hat doesn't stop us from imposing what we believe is the appropriate sanction[.]"

Similarly, we find no basis for Reno's contention that her misconduct is mitigated by the imposition of another penalty in the form of withdrawing her application to be a judge. In Maryland, the judicial selection process is rigorous, and consists of being interviewed and rated by bar associations, being nominated by the Judicial Nominating Commission, and being appointed by the Governor; thus, there is no guarantee that Reno Page 9 would have become a judge but for her misconduct.

Additionally, we reject Reno's contention that her misconduct is mitigated by four factors that the hearing judge did not find: (1) the absence of a selfish motive; (2) timely good faith efforts to rectify the consequences of the misconduct; (3) delay in the attorney discipline proceeding; and (4) unlikelihood of repetition of misconduct. The hearing judge's finding that Reno did not violate MLRPC 8.4(b) (Criminal Act) or MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation) does not establish that Reno lacked a selfish motive.[9] Reno's self-reporting to the Commission establishes full and free disclosure to the Commission, not timely good faith efforts to rectify the consequences of Reno's misconduct.[10] The hearing judge did not find that there was any delay in this Page 10 attorney discipline proceeding or that Reno is unlikely to repeat her misconduct.[11]

We agree with the Commission that the appropriate sanction for Reno's misconduct is a six-month suspension from the practice of law in Maryland. Reno knew that the Firearms Registration Section of the Maryland State Police had disapproved Stevens's application to buy a handgun. Despite this knowledge, Reno intentionally gave the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. And, as the hearing judge found, there was a "potential danger" in giving a deadly weapon to a convicted felon. Reno's misconduct is aggravated by substantial experience in the practice of law and unlawful conduct. Reno's misconduct is mitigated by the absence of prior attorney discipline, full and free disclosure to the Commission, and a finding of character for honesty.[12]Page 11

We agree with the Commission that Reno's misconduct is similar to, but not as egregious as, the misconduct of the lawyer in Howell, 434 Md. 1, 73 A.3d 202. Like the lawyer in Howell, id. at 8, 17, 73 A.3d at 206-07, 212, Reno circumvented the law by intentionally giving an item to someone who could not legally possess the item, thus creating the potential for injury. In contrast to the lawyer in Howell, id. at 8, 15, 73 A.3d at 207, 211, Reno did not violate MLRPC 8.4(b) (Criminal Act) or 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation). Thus, Reno's misconduct does not warrant the one-year suspension that this Court imposed in Howell, id. at 19, 73 A.3d at 213.

Reprimanding Reno would not suffice to protect the public and deter other lawyers from similar misconduct. Reno potentially endangered the public by giving a deadly weapon to a convicted felon. Although the hearing judge found that Reno did not know that Stevens could not legally possess a regulated firearm, the hearing judge found that Reno should have known. Despite knowing that the Firearms Registration Section of the Maryland State Police had disapproved Stevens's application to buy a handgun, Reno circumvented the law by intentionally giving the same kind of handgun to Stevens, who, as Reno should have known, could not legally possess a regulated firearm. We cannot take lightly a lawyer's failure to obey the law that the lawyer swore to uphold. Nor can we ignore the potential for danger that Reno caused.Page 12

For the above reasons, we suspend Reno from the practice of law in Maryland for six months. The suspension will begin thirty days after the date on which this opinion is filed.

IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761(b), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST SANDRA LYNN RENO.