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Writing a good statement of the case is a lot like walking a tightrope in the wind. There is such a fine balance involved in providing the court with an understanding of how a case arrived before it, explaining what happened, ethically disclosing all relevant information, and zealously advocating for your position. A statement of the case includes both the procedural history of the case itself, and the factual history forming the basis of the legal issues before the court. And, herein, lies the beginning of the balancing act. I certainly adhere to ideas that we lead with our most affirmative statements, that readers remember the first and last things they read, and that we can minimize the impact of unfavorable facts simply by tucking them in the middle of a sentence or a paragraph. I advocate strongly for the purposeful use of passive voice to further distance yourself from negative facts. I have read briefs where every sentence, and every paragraph, has been drafted with maximum persuasive impact in mind. I certainly applaud the diligence of the authors of these briefs, and understand the desire to take advantage of every opportunity to persuade. I also note that reading such statements of the case can be exhausting.
To me, reading such briefs is like riding a bicycle uphill… all the time. I need to coast from time to time. A well-balanced statement of facts allows for both the emotional appeal, and the opportunity to coast through basic information. For instance, that a complaint was filed or even when it was filed may be presented fairly neutrally without undermining the general persuasiveness of the statement. In addition, I often suggest to my students that they separate descriptions of places, things, and sometimes people, from the story itself. These descriptive paragraphs help to orient the reader and can give the reader a moment to coast before embarking on what will hopefully become a very compelling journey. I believe that such information can be shared in a fairly neutral fashion without undermining persuasive impact.
I also, however, offer words of caution. Do not begin a story, and then abruptly stop the telling in order to describe a person, place, or thing. Just as you have your reader picturing the car stuck on the train track, and hearing the train whistle approaching, do not interrupt the reader in order to describe the town in which the impending collision is likely to occur, or the restaurant in which the lone witness sat. Describe the town first, so the reader better pictures the events happening. Bolster testimony, after you’ve completed the story, by showing the reader what a great vantage point the witness had. By being mindful of where you place the descriptions, you protect the reader from jarring interruptions.
By separating descriptions from the story itself, and by relegating mundane information to its rightful neutral place, you will vary the cadence of story itself. This variety will make your statement of the case more persuasive as you give your reader an opportunity to relax and absorb the impact of the story itself.
I encountered my first “battle of the rules” when writing a brief for a moot court competition in law school. Initially, the issue intimidated me because it felt different from the analysis I had been taught. As I encountered more “battle of the rules” issues in practice and teaching, I developed some pointers for how to wage, and hopefully win, the battle.
Battle Strategy #1: Help the Court Understand Its Options.
You may be tempted to begin your argument by describing all the reasons why the court should adopt the rule you prefer. These arguments could be confusing if the court does not appreciate that this is a “battle of the rules” issue. It is better to start by explaining that there is no binding precedent on the issue. Then, provide a brief description of the different rules available based on persuasive precedent. Educate the court on rule A and rule B, even if you want the court to adopt rule B.
Battle Strategy #2: Explain Why the Rule You Prefer Is the Best.
To sway a court toward your preferred rule, rule B, explain why it is the best rule for society in general and your jurisdiction in particular. Focus on the impact of the rule. Rule B may be more easily applied by law enforcement officers in the field. Rule B may align with policies foundational to the area of the law, such as torts or contracts. Also, argue why the other rule, rule A, is not a good choice. Rule A may open the floodgates to litigation and clog court dockets. Rule A may place an onerous burden on a segment of the population. The reasons you provide in favor of your rule and against the other rule should be supported by authority, as explained in my next point.
Battle Strategy #3: Anchor Your Argument in Authority.
When asking a court to wade into uncharted waters, provide the security of authority. Cite to courts that have adopted the preferred rule. Courts may be persuaded to adopt a rule if most jurisdictions have done so or if it appears to be the current trend. If some states have enacted statutes or regulations similar to the preferred rule, cite to them. It is particularly persuasive if you cite cases or legislation from sister jurisdictions. Alternatively, you may be able to analogize your “battle of the rules” issue to an issue with settled law. For example, argue that a court should recognize a constitutional right by drawing a parallel to other well-established constitutional rights. Finally, secondary sources may lend support for your arguments. Law review articles, model codes, or restatements can be helpful additions to the legal authority you provide.
Battle Strategy #4: Use CRAC to Organize.
Use the traditional organizational scheme of conclusion, rule, application, and conclusion (CRAC) to set forth your “battle of the rules” argument.
Second, discuss the rule options. Begin by explaining that there is no binding precedent for the issue. Then, help the court understand the rules it could adopt. Cite to authority for all rule options.
Third, describe the impact of applying the preferred rule. Argue that the preferred rule will be better for society. Respond to your opponent’s arguments as to why another rule is better. Cite to authority to support these arguments.
Finally, restate your conclusion and reiterate the rule you want the court to adopt.
Battle Strategy #5: Study the Great Fights.
When you encounter a “battle of the rules” issue in practice, observe how the attorneys argued it and the court decided it. Collect effective arguments in your quiver so you are ready for your own battle. I give my students an excellent example of a “battle of the rules” argument from a brief written by one of my former colleagues at the Pennsylvania Office of Attorney General. You may access the brief, and the “battle of the rules” argument on pages 14–24, by clicking here.
As appellate writers, we are painfully aware of the fact that our readers aren’t terribly fond of our work product. Judges tell us that our briefs are simply tools, and that they are tired of trudging to chambers with boxes (or ipads) full of briefs that are too wordy, too obscure, and just too painful to read to be of much use. Judges, meanwhile, are accused of writing opinions that are too wordy, too obscure, and inaccessible to anyone but other attorneys.
It is understandable, then, that legal writers both on and off the bench try to liven things up. Like Ralphie in A Christmas Story, lawyers dream of turning in a piece of writing that, through shear skill, will temporarily lift our readers from their depression and convince them to joyfully deliver us our (client’s) wishes.
The use of literary allusion can help us make our writing more lively and informative. Allusions can build our credibility, illustrate the rightness of our position, and make our writing more accessible. But it is a two-edge sword: If used poorly, it can cause the reader to lose what little interest they had in our argument and even obscure our meaning.
Literary allusions can be very effective tools in legal writing.
The use of literary allusions is not universally praised. Indeed, Judge Posner, in his articles and book on the subject, Law and Literature, considers literature of little use to jurists, other than to serve as examples of good writing style. Nevertheless, most persuasive writing experts would argue that there are good rhetorical reasons to use literary allusions.
Aristotle identified three prongs of persuasion: ethos (credibility), pathos (emotional appeal), and logos (logical reasoning). Reference to literary allusion can assist with all three.
First, reference to “great” works can enhance the moral authority of the writer. Merely referencing Homer, Shakespeare, or a religious work such as the Bible, can confer some of the moral authority and weight of those works to the author. It can also demonstrate that the author is well read, and thus all the more to be trusted.
Second, quotations from literature can tie the emotion of the quoted work to the legal argument, invoking pathos. We are all taught to write narratively, because we are all storytellers and listeners by nature. Tying our characters to those of a great work ties the emotions inherent in those works to our characters.
Finally, allusion can help tie together a legal argument by way of illustration. There some general propositions that are difficult to state under stare decisis, but which seem immediately right when viewed through the eyes of literature. Thus, Aristotle invoked Sophocles’ Antigone to support his argument that respect for the dead is a universal law, as did Justice Kennedy, over 2000 years later. See Nat’l Archives & Records Admin. v. Favish, 541 U.S. 157, 168 (2004).
Make sure the allusion agrees with the law.
Justice Oliver Wendell Holmes wrote in his famous essay, The Path of the Law, “[t]he law is full of phraseology drawn from morals, and by the mere force of language continually invites us to pass from one domain to the other without perceiving it, as we are sure to do unless we have the boundary constantly before our minds.” 10 Harvard L. Rev. 457, 469 (1897). These boundaries have often been made apparent when allusions to moral works conflict with statutory sentencing schemes.
For instance, the Fifth Circuit had to step in and correct a criminal defendant’s sentencing when it was based on reference to Dante’s circles of hell rather than the sentencing guidelines. See U.S. v. Andrews, 390 F.3d 840, 850 n.23 (5th Cir. 2004) (“The district court seems more comfortable with sentencing Andrews based on Dante’s levels of hell, but such a sentencing scheme has not been accepted as the law in this or any other federal circuit.”). Dante’s opinions notwithstanding, it was the duty of the court to apply the law, not literature.
Nevertheless, there are times when literature can inform the sense of justice upon which the law is built. Thus, the Seventh Circuit permitted a judge to rely (in part) on Dante’s Inferno in refusing a federal prosecutor’s recommendation to depart downward from sentencing guidelines because, even though the refusal to depart was stated to be based, in part, on literature rather than law, this was merely a reflection of the discretion vested in the trial judge by the guidelines. See U.S. v. Winters, 117 F.3d 346, 348, 350 (7th Cir. 1997).
The lesson? Literary allusions can lend force to a legal argument, but they should not supplant it.
Let the reader discover the allusion.
It is often best to let the reader discover the answer themselves. This is particular true with allusions. A quotation often will have less force than the sudden recognition that you are inviting the reader into the argument based on their own experiences.
Bryan Garner, in his A Dictionary of Modern Legal Usage, gives an excellent of example of subtle allusions in legal writing. He cites to the dissent of Justice Robert W. Hansen of the Wisconsin Supreme Court, in Jones v. Fisher, 166 N.W.2d 175 (Wis. 1969) where he wrote: “The road that has brought us to the present state of affairs in regard to punitive damages in Wisconsin courts is a long one, paved with good intentions.” Id. at 182. As Garner notes, this formulations subtly suggests that the line of authority is a road to hell, allowing the reader to reach that conclusion themselves. Had Justice Hansen stated the aphorism directly, it would have been less effective.
Be sure the reader will recognize the allusion, or can understand the point if not.
When we communicate with someone, there is much more being communicated than the words we choose. We are also communicating through filters, and those filters include our shared experiences. Literary allusions, at their best, add to our communications through reference to the experiences writer and reader share in having read the same works.
In using allusions, then, we need to be careful not to obscure the text for the reader who is not familiar with the work. That was the conclusion of the late, great, Charles Alan Wright, when he concluded that it was safe to use allusions in briefs and other legal writings only so long as the text is intelligible even if the reference is not understood. See Literary Allusion in Legal Writing: The Haynsworth-Wright Letters, 1 Scribes J. Legal Writing 1 (1990).
Wright’s example leading to this conclusion is instructive. Wright was taken by the use of Justice Friendly of a reference to a “legal Lohengrin,” because it captured the essence of his legal argument so well by comparing an obscure statute to the character from a Wagnerian opera who depended on the obscurity of his own identity. Judge Haynsworth responded, however, by noting that the reference was itself obscure, and asked: “Should a judge write for the Charlie Wrights or for young law clerks preparing legal memoranda for the use of junior partners in advising clients?” Id.
We should keep the same question in mind. Particularly in a multi-cultural world with changing educational standards. Feel free to use allusions, but err on the side of caution when it comes to obscure ones, and be sure to sufficiently explain yourself to those who do not share the same reading experience.
No man can serve two masters. If you are negotiating a contract, a lawyer does not represent both clients. That is all that is involved here.
NLRB v. Health Care & Ret. Corp. of Am., 511 U.S. 571, 595 n.14 (1994).
Finally, I leave you with an allusion born from kindness. There are times when an appellate court has to note a clear mistake made by the lower court, or, worse, an appellate attorney must point out an error made in the law that seems apparent in retrospect. Let me introduce you to a literary allusion that can help you make such a point while actually complimenting the party that made the mistake.
Now, telling someone they made an obvious error is a delicate task. Comparing them to one of the most famous authors of all time while doing so, however, draws the sting a bit.
When one of the cases of this consolidated appeal was before us seven years ago, we set out some guidance on the law, which the district court [sic] either misinterpreted or missed. If the latter, such forgetfulness is understandable because we know that even Homer nodded.
Brooklyn Legal Servs. Corp. v. Legal Servs. Corp., 462 F.3d 219, 219 (2nd Cir. 2006).
While some judges might disagree about the effectiveness of literary allusion, I doubt anyone would complain about being corrected in this gentle manner.
(The author wishes to credit John M. DeStafano III, On Literature as Legal Authority, 49 Ariz. L. Rev. 521 (Sept. 2007) for inspiring this article. Image credit: Matt Buck / CC-BY-SA-4.0).
Do you over write your brief or over train for oral argument? Is there such a thing as too much of a good thing? I have asked myself these questions many times in the past, and fairly frequently these days as I prepare my students for moot court competitions and, ultimately, the practice of law. In this week’s post, I am pulled back in time to my first real-world appellate brief.
I will admit to being a tad overly zealous when I first began practicing. In the first brief I filed, my table of authorities was more than two pages. Opposing counsel had cited 6 cases. She said I needed to have my caffeine taken away. She was right. I am not saying that my brief was bad. I didn’t think it was bad then, and I still don’t. It was just too long; the amount of briefing I did was unnecessary.
It is easy to be lulled into believing that you need an elephant gun to kill a house fly. That gun, however, will do far more damage to the house than to the fly. In fact, you might miss the fly altogether. Writing too much can (1) lead your reader to believe you lack confidence in your case, yourself, or your reader; (2) cause you to potentially say something that is better left unsaid, and (3) bore your reader. None of these options is persuasive.
In that first, real-world, appellate brief, I managed not to say something that was detrimental to my argument. And, although I won, I have to credit the correctness of the legal issue rather than my stellar advocacy skills. As I wrote my brief, I was confident … and I wanted the world to know how right I was. I imagine that my reader was not persuaded by my confidence, or that the reader saw any confidence in my writing. While I set out the rules, and where they came from, and described the many ways in which the courts had applied the rules, and compared our facts to the facts of every case I had relied on, repeating and repeating myself, my opponent said only what was necessary. She articulated the legal issues, explained only what needed to be explained, and alluded to arguments that were tangentially related to the main argument, but said no more. I, on the other hand, went after every point with the same enthusiasm my dog exudes when he chases tennis balls. And, just like my dog, as soon as I set my teeth fully into one point, I dropped it to chase after another. Each point was fully made, but just barely, and the reader had to be exhausted trying to keep up.
By using the same level of enthusiasm for every point, I left the reader wondering if I knew what my strongest argument was, or if I understood my opposing counsel’s strongest argument. The reader was likely bored reading pages upon pages about a fairly simple legal issue, and wondering whether I would ever get to the point.
I cringe when I think that the reader, who was reading my brief for work rather than for pleasure, had to read every one of those pages. After all, the reader couldn’t just skip to the end, lest I had hidden a treasured moment of wisdom somewhere deep inside. My lack of discernment regarding what should be included and what could be left out diminished any trust the reader had that I was correct.
As my career developed, I became a better writer. My writing became direct and straight to the point, allowing logic to guide persuasion, making more of the important points and presenting -- without fanfare -- the foundational points that set the stage for main act. Later, when I became the reader, I valued the simplicity of a well-organized, logical argument.
The title of this post is misleading, as it implies a court is threatening to sanction an attorney for a creative submission. While this title may get the reader's attention, the complaint in the form of a screenplay is the least of this attorney's problem.
Ilya Liviz, a Massachusetts attorney, has had several ongoing disputes with the state court about filing procures and requirements. He was seeking to have the federal court hear his constitutional due process claims in these state court dismissals, and this last screenplay filing was enough for Judge Indira Talwani. Judge Talwani warned the lawyer that if he kept filing insufficient complaints, after being given fair notice, sanctions would be imposed under FRCP Rule 11. The screenplay format was mentioned by the judge but it was only a problem because it lacked the necessary substance under FRCP Rule 8.
“Normal sunny day, people are smiling as they are going in and out, of the local store,” the complaint said under an “Act 1” heading. Liviz goes on to describe how Grandma pulls up to the store with her husband, her husband gets out to shop, and Grandma puts the car in reverse to pull away and do her own shopping elsewhere. “All of a sudden she hears the police siren and red and blue lights,” the Act 1 summary said.
A “theme” subhead in Liviz’s complaint said his client is seeking an injunction against the state high court for a constitutional violation of due process access to the courts because of rejected appeals and a refusal to waive filings fees.
That passage is exactly the same as it appears in the filing. The rest of the document is slightly better, but it keeps a mocking tone and has little logical progression. Therefore, it would not be hard to understand why the court felt it necessary to remind Liviz about sanctions.
Liviz said he filed the original complaint as a screenplay because he couldn't get anyone to pay attention to him.
Liviz told the ABA Journal on Dec. 11 that he filed the complaint in the form of a screenplay because he needed to draw some attention to his client’s plight. “If I had filed it regular, not a screenplay, would you have called me?” he asked.
If there is to be creativity of this sort involved in official court documents, it usually comes from the bench side. Some judges have written their opinions like a story, or like a poem, and have used pictures to illustrate their points. These opinions are often paying up lighthearted points in the cases. In this instance, the lawyer decided to inject some uniqueness to his otherwise dry case. Because he has a history of what appears to be redundant suits, it's hard to say whether a screenplay, if done well, would be at all persuasive. It's certainly out-of-the-box, but probably a little too far to be taken seriously. It runs the risk of insulting the court, which in this case, it likely did. All things considered, I won't be recommending this structural form to my students.

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Estate of Angle v. Commissioner, T.C. Memo. 2009-227 (T.C. 2009).
Ever been on an airplane? If yes, then you are probably familiar with SkyMall, the mail-order catalog easily found in the pouch behind every airplane seat. But I bet you never knew you could find tax advice in those catalogs did you? Let me introduce Cloyd Angle and his son Tyler.
Cloyd was the founder and sole owner of Cal-Almond, Inc. He started the Company in 1979, and by the mid-90's was one of the top four almond processors in the country. (2). During the 1990's Cloyd transferred both ownership, approximately 51%, and management of the Company to his son Tyler. (2).
Interested in selling his remaining 49% ownership interest for a hefty price tag, Cloyd came upon Morven Partners. (3). Morven had a large presence in the nutmeat industry, but not much in the way of almonds. Cloyd told Morven he would sell the whole business for $20 million, a number he thought they would refuse. To his delight they accepted. After convincing his son Tyler to sell his 51%, Morven signed a letter of intent.
Of course, Cloyd would have to pay taxes on the sale of his stock to Morven. Cloyd's taxable gain would be the sale price of his stock less his cost basis, which appears to be zero. (3). That means Cloyd's taxable gain would be 49% x $20,000,000 minus $-0-, or $9,800,000. The sale was supposed to take place in 1995. At that time capital gains rates were approximately 28% (see table here). Multiplying 28% by Cloyd's share of the sale ($9,800,000) equals $2,744,000 in federal income taxes. The idea of paying $2.7 million in income taxes was too much for Cloyd to bear.
Fortunately, Cloyd came across a copy of SkyMall. While perusing through the myriad of wonderful gifts and gadgets, "he spotted an advertisement for books and tapes on offshore tax planning." Thrilled about the prospect of avoiding income taxes he contacted Jerome Schneider, the man who was selling the books and tapes.
It was not long after meeting Mr. Schneider that Cloyd began setting up offshore business, renouncing his U.S. citizenship, and transferring his stock to companies set up in beautiful places like Turks and Caicos and the British Virgin Islands. When all was said and done there were six different entities. I beg you to go to page 10 of the opinion and view the exquisite picture provided by the Tax Court depicting all the moving parts; it is truly a work of art.
Unfortunately, poor Cloyd dies before he can realize his dream of avoiding federal income taxes. (15). The Tax Court, however, showed no mercy on his estate, and found Cloyd's web of transactions served little to avoid the imposition of federal income taxes on the sale of his stock. (15). The Tax Court also imposed a 20% accuracy-related penalty because Cloyd did not "act with reasonable cause and in good faith by relying on the professional advice of [SkyMall]. (22).
In the end, Cloyd's estate will pay 48% tax (28% plus the 20% penalty) on the $9,800,000. He will also have to pay interest on the tax from 1995 until the tax is paid, presumably sometime in the near future.
Woodard v. Commissioner, T.C. Summary Opinion 2009-150 (T.C. 2009).
Does Mr. Woodard's reliance on unknown internet resources constitute reasonable cause for purposes of avoiding the accuracy-related penalty under section 6662(a)?
Mr. Woodard received $100,000 from his IRA and deposited that amount into his personal checking account in 2004. (3). In February 2005, Mr. Woodard wired funds to Amanda M. Mahn pursuant to demand notes and statutory mortgage documents . . . [naming] Ms. Mahn as debtor and Hunter Financial, LLC as lender. (3). Mr. Woodard established Hunter Financial, LLC (Hunter) almost six months later in September 2005. (4).
The IRS determined that Mr. Woodard failed to include in income the $100,000 in distributions from his IRA and issued a notice of deficiency as well as assessed an accuracy-related penalty pursuant to section 6662(a). (2).
Mr. Woodard concedes the distributions are taxable but challenges the section 6662(a) accuracy-related penalty. (5).
In a separate action the Minnesota Court of Appeals voided the mortgage that granted Hunter a property interest because Hunter was not registered until September 2005, therefore it could not have taken delivery [of the mortgage] in February 2005. (5).
Section 6662(a) and (b)(1) and (2) imposes a penalty equal to 20 percent of any underpayment of tax that is attributable to negligence or disregard of rules or regulations or to a substantial understatement of income tax. (6). The term “negligence” includes any failure to make a reasonable attempt to comply with the provisions of the internal revenue laws. (6). The term “disregard” includes any careless, reckless, or intentional disregard. (6). An understatement of income tax is “substantial” if it exceeds the greater of 10 percent of the tax required to be shown on the return or $5,000. (6).
Section 6664 provides a defense to the penalty if a taxpayer establishes that there was reasonable cause for the underpayment and that he acted in good faith. (7). The determination of whether a taxpayer acted with reasonable cause and in good faith is made on a case-by-case basis, taking into account all the pertinent facts and circumstances. (7).
Generally, the most important factor is the extent of the taxpayer’s effort to assess the proper tax liability, including reliance on the advice of a tax return preparer. (7). An honest misunderstanding of fact or law that is reasonable considering the taxpayer’s education, experience, and knowledge may indicate reasonable cause and good faith. (7).
Mr. Woodard explained that he thought he had a self-directed IRA and that he intended to reinvest the $100,000 in private mortgages. He searched the Internet for information about self-directed IRAs, and he followed advice he found on line. He deposited the $100,000 into his personal checking account and wired the funds from that account to Ms. Mahn as mortgagor. (8).
Good-faith reliance on advice from an independent, competent professional as to the tax treatment of an item may meet the reasonable cause requirement. (9). A taxpayer must act with ordinary business care and prudence to claim reasonable cause. (9).
Mr. Woodard claims that he relied on information found on unspecified Web sites written by unidentified individuals or organizations. (9). From the record, it is not clear that he questioned the provenance or accuracy of the information he found through the Google search engine. (10). Mr. Woodard has not provided the Court with any information about the sources of the information he found on the Internet. (9). Without knowing the sources of the information, it is impossible for the Court to determine that those sources were competent to provide tax advice. (10).
Accordingly, we cannot conclude that Mr. Woodard exercised ordinary business care and prudence in selecting and relying upon the information he found on line. (10).
The court's recitation of the facts was poorly written. On the other hand their statement of the law and their analysis was well done.
This case is interesting because the court does not actually say Mr. Woodard could not meet his burden by using an internet source, rather Mr. Woodard did not provide the internet source he relied on therefore they could not continue their analysis. Had he done that, the court presumably would need to visit the internet source and determine if the advice on the website met the "independent, competent professional" requirement.
Given the proliferation of tax advice on the internet in the form of newspaper articles, magazine articles, finance website, blogs, etc., I believe this is an area of concern for taxpayers. My advice is to not use websites or blogs for tax advice, but if you do, this case should make clear that the taxpayer should document where the advice came from and inquire about the writer's competence to give advice.
Additionally, most websites and blogs (like mine) have disclaimers regarding the use of information to avoid penalties imposed by the IRS. I am not sure how this would effect the analysis for the taxpayer, but it probably would not be helpful to the taxpayer's argument.
Finally, the tax court footnotes on the last page of the opinion that credible information is on the internet; "such as, for example, the Internal Revenue Code and the income tax regulations." Good Luck With That!
Powell v. Comm'r, T.C. Memo. 2009-174 (T.C. 2009).
I blogged previously about section 6673(a)(1) penalties assessed against taxpayers (here). But this is the first case I have seen - albeit I have only been blogging for two months - where the Court assessed section 6673(a)(2) costs against a taxpayer's attorney for "unreasonably and vexatiously" delaying proceedings before the Court.
The taxpayer, Mr. Powell, conducted research of the Internal Revenue Code, case law, etc., which led him to the conclusion that he was not required to file a tax return or pay taxes. This false conclusion resulted in his failure to file tax returns from 1999 through 2002 and his failure to pay some $434,796 in outstanding liabilities.
In October 2005, the IRS sent Mr. Powell a Notice of Intent to Levy and Notice of Your Right to a Hearing. Mr. Powell, however, persisted in his ways even after reading the IRS's publication, "The Truth About Frivolous Tax Arguments." In response to Mr. Powell's belligerence, the IRS sent him a Notice of Determination Concerning Collection Action(s) Under Section 6320 and/or 6330, dated August 11, 2006, sustaining the levy and warning him of potential 6673 sanctions. In September 2006, Mr. Powell filed a petition with Tax Court challenging the levy notice.
Almost a year later, the IRS filed its first Motion for Summary Judgment. The Court denied the IRS’s motion stating, “satisfaction of the requirements of section 6330 [Notice and Opportunity for Hearing Before Levy] should be demonstrated at trial rather than in a summary adjudication,” (as we will see, this comes back to haunt the IRS.) In November 2008, the IRS filed its second Motion for Summary Judgment and a Motion to Impose a Penalty Under section 6673.
In the interim, Mr. Powell retained the services of an attorney, Mr. Barringer, to represent him in the proceedings before the Tax Court. Mr. Barringer responded the IRS’s second motion for summary judgment by seeking more time for discovery and requesting the Court deny the IRS’s motion until Mr. Powell receives satisfactory answers to his questions regarding the meaning of “taxpayer” and “individual” under the Internal Revenue Code.
The Court grants the IRS's second motion for summary judgment. In addition, the Court set an April 20, 2009 hearing for Mr. Barringer to Show Cause why he should not be required to pay attorney’s fees under section 6673(a)(2). In its Order to Show Cause, the Court points out that Mr. Barringer employed the discovery process to delay trial.
Petitioner’s argument [i.e. Mr. Barringer] that respondent’s motions [i.e. IRS] should be denied because they are premature until petitioner secures responses to his various inquiries is patently for the purpose of delay. Petitioner’s interrogatories [interrogatories are written questionnaires] indirectly assert stale tax defiance arguments about terms such as “taxpayer”, “person”, “non-resident alien”, “income”, and other non-meritorious arguments about delegated authority.
The Court rejects the IRS’s request for time and costs for the second motion for summary judgment because it was a choice by the IRS to file the first motion, which the Court warned against. Accordingly, Mr. Barringer – though not completely blameless – is not required to pay time and costs for the IRS’s attorneys in the second motion for summary judgment.
Mr. Barringer protests the abuse of discovery charge, stating that he was simply representing his client based on his client’s directive, and that it would have been futile to try and convince his client, Mr. Powell, otherwise.
Mr. Barringer’s reasoning is rejected by the Court because section 3.1 of the Model Rules of Professional Conduct, incorporated into proceedings before the Tax Court by Rule 201(a) of the Tax Court Rules of Procedure, prevent an attorney from “defending a proceeding…unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification or reversal of existing law.” Under these Model Rules, Mr. Barringer was prohibited from defending Mr. Powell's frivolous claims. Consequently, the Court grants the IRS’s motion for time and costs for abuse of the discovery process, and awards the IRS $4,725 under section 6673(a)(2).
The Court's decision here imposes section 6673 costs because the attorney abused the discovery process by advancing Mr. Powell's position. The implication of this particular decision is that an attorney is effectively barred, by both the Model Rules and section 6673, from even representing a taxpayer whose only grounds for challenging his or her tax liability are frivolous.
Samples v. Comm’r, T.C. Memo. 2009-167 (T.C. 2009).
Mr. Samples asserts the income tax is an indirect excise tax improperly imposed upon the labor of a natural person. That is, he believes wages received in exchange for labor become property, and it is therefore improper to impose an income tax on his property.
Mr. Samples’s theory is rejected by the Tax Court. His argument is frivolous for several reasons but mostly because “gross income means all income from whatever source derived.” 26 U.S.C. sections 61(a) and 61(a)(1).
Mr. Samples’s argument sounds like a very twisted application of John Locke’s Theory of Labor. Locke theorized that when a person “mixes his labor with” the land, their labor becomes part of the land, and thus imparts land ownership to the laborer. But, as pointed out by the Tax Court, whether a person receives money or property in exchange for his labor, he has received income.
The Tax Court provides a thorough explanation of the section 274(d) substantiation requirements for vehicle expenses otherwise deductible under section 162(a).
The taxpayer is self-employed in the promotions and marketing business. She regularly travels to client sites changing out displays and advertising signs. She did not file a tax return for 2003, as a result the IRS prepared one for her pursuant to section 6020(b).
The are two issues for the Tax Court. First, is the taxpayer allowed a mileage deduction for vehicle expenses. Second, is she liable for penalties under 6651(a)(1) and (2), and 6654(a).
Section 162(a) allows a deduction for ordinary and necessary expenses incurred or paid in carrying on a trade or business. Section 274(d) disallows all travel expenses, including vehicle expenses, otherwise allowed under section 162(a), unless the taxpayer substantiates the expenses with adequate records. The taxpayer's records must include the amount, time and place, business purpose of the expense, and business relationship between the taxpayer and the person entertained, etc.
Acceptable forms of records include "an account book, a diary, a log, a statement of expense, a trip sheet, or a similar record and documentary evidence that in combination are sufficient to establish each element of expenditure or use." see Temp. Reg. 1.274-5T(c)(2)(i). Records should be made at or near the time of the actual expenditure or use. As elapsed time increases, the record's credibility decreases. see Temp. Reg. 1.274-5T(c)(2)(ii).
Here, the taxpayer testified that she kept a mileage booklet but unfortunately she could not find it for trial. She also provided a mileage trip list for 2003, but she stated at trial that she prepared the list in 2007 - after the IRS sent her the notice of deficiency at issue in the case. She also produced several different reports showing client names and the dates she serviced their accounts.
The Court holds for the Service because the taxpayer’s records were not made "at or near the time" she incurred the vehicle expense. Thus she did not meet the substantiation requirements. As such, she is not allowed a mileage deduction. There is nothing in the opinion regarding actual vehicle expenses.
The IRS also assessed penalties for failure to file her 2003 tax return, failure to pay the tax shown on the return, and failure to pay estimated taxes. The Tax Court (in fact the same Judge) dealt with this identical topic here. As was the case with Ms. Humes, the IRS did not produce evidence of the taxpayer's 2002 return, thus the Court abated the 6654(a) failure to pay estimated tax penalties. The failure to file and failure to pay penalties under 6651(a) were sustained.
This opinion is subject to section 7463 and may not be used as precedent for any other case.
This opinion is subject to section 7463(b), which means the opinion may not be treated as precedent for any other case (even though this information is in the opinion, I will provide this disclosure going forward if applicable). This, however, does not diminish its usefulness. Private letter rulings, for example, may not be used as precedent either under section 6110(k)(3), however, many practitioners use them as guidance in analyzing particular fact and law scenarios.
There are three penalty sections at play in this case: 6651(a)(1), 6651(a)(2), and 6654(a). The taxpayer concedes she is liable for a deficiency for her 2003 and 2004 tax returns. But she contests penalties imposed under 6651(a)(1) & (2), and 6654(a).
Section 6651(a)(1) imposes a penalty for failure to file a tax return. Section 6651(a)(2) imposes a penalty for failure to pay tax shown on a tax return. And Section 6654(a) imposes a penalty for failure to pay estimated income tax. To overcome a section 6651(a) penalty the taxpayer must show the failure was due to reasonable cause and not due to willful neglect – see language in same section.
To overcome a section 6654(a) penalty, in addition to reasonable cause, the taxpayer must either be disabled, or 62 and retired – see section 6654(e)(3)(B) . For the section 6654(a) penalty there is also a provision under 6654(e)(3)(A) that gives the Secretary discretion to waive the penalty because of casualty or disaster, and under circumstances which would be against equity and good conscience.
The taxpayer, Ms. Humes, was experiencing emotional problems during the years at issue. The only evidence offered by Ms. Humes at trial regarding her illness was her own testimony. She testified that she stopped working in August 2004, was hospitalized the same month, and was one year in arrears on her mortgage payments. Her house was foreclosed on in 2005. The Tax Court acknowledges that there are circumstances in which a taxpayer's illness may constitute reasonable cause for all three penalties imposed here.
The Tax Court disposes of the 2003 section 6654(a) penalty without any reference to Ms. Humes’s illness. Under 6654(c) & (d), estimated tax payments equal to 25% of the “required annual payment” are due in four equal installments. The required annual payment is the lesser of 90% of the current year’s tax, or 100% of the prior year’s tax. The 100% prior year tax clause does not apply in cases where the tax return was not filed in the prior year.
The IRS did not introduce any evidence that Ms. Humes failed to file her 2002 tax return. If she did file it, they did not introduce evidence of the 2002 tax shown on the return. Without any indication as to Ms. Humes’s 2002 tax return, the Court must apply the formula as written without exception. Consequently, under the 6654(d) formula Ms. Humes’s required annual payment for 2003 is $0.00 (100% of the prior year = $0.00; which is always going to be less than 90% of the current year’s tax). Either the IRS was not prepared for trial, or they did not understand the law.
Since the IRS was auditing both 2003 and 2004, there was ample evidence on the record that Ms. Humes was liable for 2004 estimated tax payments. Using the 6654(d) formula for the 2004 tax year, the 100% clause applies to the 2003 tax return admitted at trial. The Court, nonetheless, agrees with Ms. Humes that her illness met the definition of a disability under 6654(e)(3)(B)(i)(II) and abates the failure to pay estimated tax penalty.
The Tax Court sustains both penalties for 2004, but finds Ms. Humes established reasonable cause for 2003 and abates the penalties for that year.
In April 2004, Ms. Humes filed for an extension, thus the 2003 tax return’s due date was August 15, 2004. She testified at trial that her illness prevented her from working after August 2004 and that she was hospitalized in the same month. The Tax Court agrees this is enough to show reasonable cause under 6651(a)(1) for failure to file a tax return. Ms. Humes also testified that she was not able to manage her finances in 2004, she was one year in arrears on her mortgage payments, and the mortgage was foreclosed in 2005. The Court agrees here as well, Ms. Humes established reasonable cause for failure to pay the tax shown on her 2003 return.
Ms. Humes loses here because she failed to introduce evidence of her illness in 2005 and its impact on her ability to file her 2004 tax return and pay the tax shown on the return. In contrast to April 2004 where Ms. Humes at least filed for an extension, there is nothing in the opinion regarding her efforts to comply with the 2004 filing requirement in April 2005. She also provided no evidence regarding her ability to pay the tax shown on her 2004 tax return. Such evidence could include her income, assets, and liabilities in 2005.
It seems the Tax Court was more than willing to help Ms. Humes, but they were not going to make her case for her. Producing evidence at trial is critical. In this case both sides lost an issue simply because they failed to produce evidence.
Mr. Florance appears to be making a name for himself in the halls of the U.S. Tax Court. He was the recipient of not one, but two decisions from the Tax Court yesterday.
The facts are almost identical in each case, the only real difference is the year at issue. In the first case Mr. Florance failed to file his tax return for 2003, and in the second case he failed to file for 2005. The IRS assessed a deficiency, to which Mr. Florance asserts he is not liable for because "he did not consent to becoming a taxpayer and therefore is not subject to the income tax laws of the United States." This might be my favorite frivolous argument yet.
In response to Mr. Florance's assertion, the IRS filed a motion to dismiss and asked the Court to impose section 6673 penalties. Section 6673 penalties are reserved for frivolous arguments and "proceedings instituted primarily for delay." The Tax Court can impose up to $25,000 in penalties.
The best part is at the motion to dismiss hearing for the 2003 tax return. Mr. Florance did not show up. The IRS wins right? Well, not here because the IRS asked the Court to dismiss its own motion. Turns out, the IRS found more of Mr. Florance's unreported income and they needed additional time to assess higher deficiencies.
"Mr. Florance is no stranger to this Court, In Florance v. Commissioner, T.C. Memo. 2005-60, affd. 174 Fed. Appx. 200 (5th Cir. 2006) and Florance v. Commissioner, T.C. Memo. 2005-61, affd. 174 Fed. Appx. 200 (5th Cir. 2006). Florance asserted similar tax defier arguments for the 1994 through 1997 tax years and was sanctioned by this Court under section 6673 in the respective amounts of $10,000 and $12,500. In this case he asks us to consider his frivolous arguments once again."
Mr. Florance loses. The Tax Court imposes a $15,000 section 6673 penalty for the 2003 tax year, and a $17,500 section 6673 penalty for the 2005 tax year.
There is more to this opinion than just the regular run-of-the-mill taxpayer penalty. I encourage you to read on.
In the early 80’s, Mr. Pack, at the advice of his CPA, invested $25k in a limited partnership called Platte Leasing Associates. A $25k investment in 1981 equates to about a $60k investment today (per the calculator on The Federal Reserve Bank of Minn.'s website). Prior to Mr. Pack’s investment, he was informed via several documents that Platte was taking significant tax risks, and would most likely be challenged by the IRS. Within those documents was a section that stated Platte’s general partners were involved in other partnerships that were currently under IRS audit. As a result of those audits, the partnerships deductions were disallowed.
In 1983, Platte passed-through ordinary losses and interest expense, which Mr. Pack reported on his 1983 tax return. Similarly, in 1985, Platted passed-through ordinary income and interest expense, which Mr. Pack reported on his 1985 tax return.
In the early 90’s, the IRS adjusted Platte’s 1983 & 1985 tax returns. In 2006, the Tax Court upheld those adjustments. Shortly thereafter, the IRS sent Mr. Pack a notice of deficiency relating to his 1983 and 1985 tax returns.
The issue for the Tax Court is whether penalties imposed by section 6653(a) and 6661(a) apply to Mr. Pack. Don’t go looking for section 6661(a); it is not part of the current tax code, it was repealed in 1989. Section 6653(a) – under the 1954 tax code - imposes a 5% penalty for underpayments “due to negligence or intentional disregard of rules or regulations.” Section 6653(a)(2) imposes an additional tax “equal to 50 percent of the interest payable under section 6601.” This means, that whatever interest penalty the Pack’s have to pay because of underpayment, increase it by 50%.
Here, the Tax Court has to determine if the Pack’s acted negligently. The Tax Court points out that in the Ninth Circuit (where this appeal would lie), “[in] cases involving a deduction for loss that results from an investment [a determination as to negligence] depends on both the legitimacy of the underlying investment, and due care in claiming the deduction."
(3) the taxpayer actually relied in good faith on the adviser's judgment.
As to the first prong, The Tax Court cites the CPA’s lack of investment experience to show Mr. Pack’s reliance was unjustified. The second prong was not an issue. The Tax Court also agrees with the IRS’s on the third prong; Mr. Pack knew of his CPA's conflict of interest. Lastly, the documents that accompanied the Platte investment contained several warnings regarding the tax risks that should have resounded loudly in Mr. Pack’s head.
Mr. Pack loses because the document he received in connection with the Platte investment was a clear warning, and he ignored it.
At first glance, the Tax Court’s application of Neonatology’s first prong appears incorrect. Based on the context of the Third Circuit's opinion, the first prong refers to the professional’s expertise as a tax adviser not as an investment adviser. In Neonatology, the taxpayer received tax advice from their insurance agent, “rather than from a competent, independent tax professional.” Neonatology, 299 F.3d at 234. Here, the IRS attacked the CPA’s expertise as an investment adviser and said nothing of his expertise as a tax adviser.
But as stated above, the standard for negligence here is defined by the Ninth Circuit. The Ninth Circuit requires a showing that the underlying investment was legitimate to avoid the negligence penalty. This has the impact of turning Neonatoloty's three-prong test into a six-prong test. Now, Mr. Pack has to show he acted reasonably not only with respect to taking the deduction, but also with respect to investing in Platte in the first place. Since Mr. Pack did not seek independent investment advice he fails the test.
My only policy argument against the Ninth Circuit's negligence test is that it is different than the test used in the Fifth Circuit. The Tax Court cites the Ninth Circuit's opinion in Saks v. Commissioner, 82 F.3d 918 (9th Cir. 1996). The Saks Court rejects the Fifth Circuit's opinion in Chamberlain v. Commissioner, 66 F.3d 729, (5th Cir. 1995). In Chamberlain, the issue of negligence is based solely on whether the taxpayer acted negligently in claiming the loss.
While I think the Fifth Circuit is the better approach, it seems wholly unfair that taxpayers in the ninth circuit should be subjected to a more stringent negligence test than taxpayers in the fifth circuit.

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Issue: What sanction should the Court impose upon an attorney who misrepresented to the court about the total amount owed to his client homeowners association by filing complaints which included his attorney's fees as part of the damages sought?
Holding: An indefinite suspension is the appropriate sanction for a lawyer whose failure to separately specify the attorney's fees sought in litigation effectively prevented the court from assessing the reasonableness of his fees, thereby lacking candor toward the tribunal.
Panel: Barbera, C.J., Greene, *Adkins, McDonald, Watts, Hotten, Getty, JJ.
*Adkins, J., now retired, participated in the hearing and conference of this case while an active member of this Court; after being recalled pursuant to the Md. Constitution, Article IV, Section 3A, she also participated in the decision and adoption of this opinion.
On June 26, 2017, the Attorney Grievance Commission of Maryland ("Petitioner"), acting through Bar Counsel, filed in this Court a Petition for Disciplinary or Remedial Action ("Petition") against Neil Warren Steinhorn ("Respondent"). The Petition alleged, among other things,1 violations of the Maryland Lawyers' Rules of Professional Conduct ("MLRPC") 3.3 (Candor Toward the Tribunal) and 8.4 (Misconduct).2 Those charges arise from misleading complaints Respondent filed with the District Court of Maryland sitting in Baltimore County while representing the Council of Unit Owners of Kingswood Commons, Inc. ("Kingswood"), a homeowners' association, in several debt collection cases. Specifically, Respondent inflated the damages sought on the complaint form by thirty percent without separately indicating, as the form requires, that this increase constituted his attorney's fees.
Pursuant to Maryland Rules 19-722(a) and 19-727, this Court designated the Honorable Keith R. Truffer ("hearing judge") of the Circuit Court for Baltimore County to conduct an evidentiary hearing and make findings of fact and conclusions of law. The hearing was held on March 13, 2018. Respondent testified and presented evidence on his behalf. On April 27, 2018, the hearing judge issued written findings of fact and conclusions of law, concluding that Respondent did not commit any violations of the MLRPC.
Bar Counsel, on behalf of Petitioner, took no issue with the hearing judge's findings of fact but filed exceptions to each conclusion of law. Petitioner asserts that Respondent violated MLRPC 3.3(a)(1) and 8.4 because he provided the District Court with false information, misled the District Court with that information, and engaged in disreputable conduct. Petitioner also excepts to the hearing judge's finding of certain mitigating factors and asks us to consider other aggravating factors in addition to the ones the hearing judge found. Respondent counters that although he made a mistake, he did not violate any of the MLRPC.
On October 9, 2018, this Court heard oral argument in this matter. Petitioner asks us to disbar or, in the alternative, suspend Respondent. Respondent requests that we affirm the hearing judge's legal conclusions and dismiss this action. For the following reasons, we agree with Petitioner that Respondent violated MLRPC 3.3 and 8.4 and, consequently, suspend Respondent from practicing law indefinitely with the right to apply for reinstatement no sooner than six months after the suspension takes effect.
Respondent was admitted to the Maryland Bar in 1974. In 1979, after a five-year stint as an Assistant State's Attorney, Respondent transitioned to private practice. On June 4, 1990, Respondent was convicted of money laundering and transporting stolen goods, United States v. Steinhorn, 927 F.2d 195, 196 (4th Cir. 1991), and subsequently, in September 1990, this Court suspended him from practicing law in Maryland. Thereafter, on February 1, 1994, following affirmance of his convictions,3 this Court disbarred Respondent by consent. Attorney Grievance Comm'n v. Steinhorn, 333 Md. 580 (1994).
In October 2007, this Court granted Respondent's Petition for Reinstatement to the Maryland Bar. In re Reinstatement of Steinhorn, 401 Md. 698 (2007). Since his reinstatement, Respondent has handled exclusively debt collection cases, representing homeowner associations, small businesses, and bail bondsmen. In one such matter, Respondent assisted Kingswood in collecting past due condominium fees from several condominium unit owners.
As part of his work for Kingswood, Respondent filed two form complaints—entitled DC-CV-001, Complaint/Application and Affidavit in Support of Judgment—with the District Court of Maryland sitting in Baltimore County in 2014. The first complaint, filed on January 14, 2014, sought to recover $9,120 in delinquent condominium fees from Aileen Pratt, a condominium unit owner. The second complaint, filed on April 2, 2014, also sought to collect $9,120 in outstanding condominium fees from Jason Green, another condominium unit owner. Respondent submitted affidavits in support of those claims, which were signed by Marc Greenberg ("Greenberg"), an agent of Kingswood. Greenberg relied on Respondent's representations about the accuracy of those filings.
The $9,120 figure listed on both complaints represented unpaid condominium fees for a four-year period (2011-2014) plus Respondent's thirty-percent attorney's fee.4 In other words, of the $9,120 sought in the complaints, $6,912 was for the outstanding HOA fees and $2,208 was for attorney's fees.5 Respondent conjoined the unpaid assessments ($6,912) with the agreed-upon attorney's fees ($2,208) in each complaint filed with the court, listing one figure ($9,120) in the damages line, leaving the line designated for attorney's fees blank (see image below).
Image materials not available for display.
During the hearing on his conduct, Respondent "candidly admitted" that he made a mistake, and he "denied any intent to deceive the court." He testified that he only sought to collect that which was rightfully owed to him based on his fee agreement with Kingswood.
The hearing judge found, as a matter of fact, that Respondent's testimony was credible and that Respondent never intended to make a false statement to the District Court. The hearing judge was persuaded by the fact that Respondent did not personally benefit from his conduct. The judge was also swayed by Respondent's sincere remorse and his implementation of new office procedures to prevent those issues from reoccurring.
Based on the record and the above-summarized findings of fact, the hearing judge concluded that Petitioner failed to demonstrate, by clear and convincing evidence, that Respondent violated MLRPC 3.3(a)(1) and 8.4 (a), (c), and (d). As noted at the outset, Petitioner has filed exceptions to the hearing judge's conclusions of law.
In attorney discipline proceedings, this Court has original and complete jurisdiction and conducts an independent review of the record." Attorney Grievance Comm'n v. Good, 445 Md. 490, 512 (2015) (citation omitted). Where, as here, neither party has filed exceptions to the hearing judge's findings of fact, we treat those facts as established. Attorney Grievance Comm'n v. Reno, 436 Md. 504, 508 (2014); see also Md. Rule 19-741(b)(2)(A). We review de novo the hearing judge's legal conclusions, Md. Rule 19-741(b)(1), to determine if they are supported by clear and convincing evidence, Md. Rule 19-727(c), and we decide, if the attorney committed misconduct, the appropriate sanction. Attorney Grievance Comm'n v. Butler, 456 Md. 227, 238 (2017).
Based upon our independent review of the record, we disagree with the hearing judge's legal conclusions and hold that Respondent violated MLRPC 3.3(a)(1) and 8.4(a), (c), and (d).
MLRPC 3.3(a)(1) provides, in pertinent part, that a lawyer shall not "knowingly . . . make a false statement of fact . . . to a tribunal." This duty is premised on the idea that "[e]very court has the right to rely upon an attorney to assist it in ascertaining the truth of the case before it." Attorney Grievance Comm'n v. Smith, 442 Md. 14, 34 (2015) (citation omitted). Therefore, "an attorney 'must be candid at all times with a tribunal or inquiry board.'" Butler, 456 Md. at 238 (quoting Attorney Grievance Comm'n v. Joseph, 422 Md. 670, 699 (2011)). Accordingly, a lawyer violates MLRPC 3.3(a)(1) when he or she knowingly provides the court with false information, Smith, 442 Md. at 34 (citing Attorney Grievance Comm'n v. Ward, 394 Md. 1, 32 (2006)), or fails to correct any false information previously provided, Joseph, 422 Md. at 699.
Petitioner excepts to the hearing judge's conclusion that Respondent did not violate MLRPC 3.3(a)(1). Petitioner contends that the hearing judge applied an erroneous legal standard in concluding that Respondent's filings were not "knowingly false" because he had "no intent to deceive anyone" and no "party suffered any harm." Respondent counters that he made an honest mistake, but the factual findings of the hearing judge compel the legal conclusion that he did not violate MLRPC 3.3(a)(1). We agree with Petitioner and therefore sustain its exception.
As an initial matter, we reject Respondent's assertion that we are compelled to uphold the hearing judge's legal conclusions because we have accepted his factual findings as established. According to Respondent, the only legal conclusion that can be reached from the hearing judge's "exculpatory" factual findings is that Respondent did not violate MLRPC 3.3. Respondent is mistaken. His assertion runs counter to the well-established standard of review in attorney grievance proceedings.
As part of our independent review of the record, we are free to reach different legal conclusions than those of the hearing judge, even if we accept the judge's factual findings. See Attorney Grievance Comm'n v. Patterson, 421 Md. 708, 724 (2011) (noting that we afford no deference to a hearing judge's legal conclusions). In Attorney Grievance Commission v. Taylor, for example, the hearing judge found, and Bar Counsel did not contest, that Mr. Taylor never commingled or mishandled client funds deposited into his client trust account. 405 Md. 697, 707, 714 (2008). We concluded, however, that because he deposited "personal funds into the trust account in excess of the amount needed to cover bank charges," Mr. Taylor violated MLRPC 1.15(b) (Safekeeping Property).8 Id. at 714. We therefore overturned the hearing judge's legal conclusion and sanctioned Mr. Taylor, "notwithstanding the hearing judge's finding that there was no . . . misuse of client funds." Id. at 715. Likewise, here, our de novo review leads us to the conclusion that Respondent violated MLRPC 3.3(a)(1), notwithstanding the hearing judge's finding that Respondent acted with no intent to deceive anyone.
We need not look any further than Respondent's testimony to reach this conclusion. Respondent testified that he reviewed each complaint to ensure its accuracy before filing it with the court. He further testified that he "knew what the attorney's fees were," that he "knew what the division was going to be subsequent to the payment of the judgment" ($6,912 for the debt and $2,208 for attorney's fees), and that those figures "should have been separated."9 (Emphasis added). Yet, despite this knowledge, Respondent did not separate those figures on the complaint forms he filed with the District Court, and he did not file corrected forms thereafter, even after this issue was called to his attention. It follows that Respondent knowingly submitted false information to the court—that the underlying debt was $9,120, when, in fact, it was only $6,912—which he failed ever to correct. Consequently, clear and convincing evidence demonstrates that Respondent violated MLRPC 3.3(a)(1).
MLRPC 8.4(c) states that "[i]t is professional misconduct for a lawyer to . . . engage in conduct involving dishonesty, fraud, deceit or misrepresentation." This rule is grounded in the idea that "[h]onesty is of paramount importance in the practice of law." Attorney Grievance Comm'n v. Agbaje, 438 Md. 695, 715 (2014) (citing Attorney Grievance Comm'n v. Ellison, 384 Md. 688 (2005)); see also Attorney Grievance Comm'n v. Myers, 333 Md. 440, 449 (1994) ("Candor and truthfulness are two of the most important moral character traits of a lawyer."). We have held that, "in the context of Rule 8.4(c), so long as an attorney knowingly makes a false statement, he necessarily engages in conduct involving misrepresentation. No intent to deceive is necessary." Attorney Grievance Comm'n v. Dore, 433 Md. 685, 708 (2013); see also Attorney Grievance Comm'n v. Zhang, 440 Md. 128, 168-69 (2014) (highlighting the difference between fraud and deceit, which require an intent to deceive, and dishonesty and misrepresentation, which do not require any specific intent).
Petitioner excepts to the hearing judge's conclusion that Respondent did not violate MLRPC 8.4(c). Petitioner asserts that the hearing judge erred in concluding that Respondent did not violate MLRPC 8.4(c) because his pleadings "never . . . disrupt[ed] . . . any court proceeding" and "no judge . . . ever objected" to his filings. Respondent again counters that the hearing judge's finding that Respondent committed a genuine error but did not intend to deceive anyone necessarily means that he did not violate MLRPC 8.4(c). We again agree with Petitioner and therefore sustain its exception.
There is significant overlap between MLRPC 3.3(a)(1) and 8.4(c). Dore, 433 Md. at 707. Indeed, "[a] lawyer that violates [MLRPC] 3.3(a) generally violates [MLRPC] 8.4(c) as well." Id. (quoting Douglas R. Richmond, The Ethics of Zealous Advocacy: Civility, Candor and Parlor Tricks, 34 Tex. Tech L. Rev. 3, 28 (2002)). This overlap occurs because both rules are violated when a lawyer—regardless of intent—knowingly makes a false statement to the court. Id. at 708; see also Attorney Grievance Comm'n v. Framm, 449 Md. 620, 662 (2016). Because we have concluded that Respondent knowingly submitted false statements to the court, we similarly conclude that such submissions violated MLRPC 8.4(c).
We nevertheless address the significance of Respondent's misrepresentations independent of his lack of candor towards the tribunal because there are instances where an attorney may engage in misleading conduct, in violation of MLRPC 8.4(c), that is not necessarily dishonest conduct, in violation of 3.3(a)(1).13 See Attorney Grievance Comm'n v. Nwadike, 416 Md. 180, 194 (2010) (citing Attorney Grievance Comm'n v. Calhoun, 391 Md. 532, 548 (2006)) (noting that an attorney can mislead "by silence and lack of communication[,]" in violation of MLRPC 8.4(c), without acting dishonestly). By grouping his attorney's fees with the damages listed in his complaints, Respondent misled the court into believing that he was not collecting any attorney's fees when the facts demonstrate otherwise. See In re Clark's Case, 37 A.3d 327, 329, 331 (N.H. 2012) (finding a violation when an attorney "entered zeros . . . on the two [bankruptcy] forms instructing filers to enter . . . the debtor's spouse's income" because he "in effect [told] the court that [the debtor's] husband had no income when . . . he did"). In other words, Respondent concealed the material fact that he was collecting attorney's fees, thereby preventing the court from assessing the reasonableness of those fees.
We have long held that concealment of material facts constitutes an MLRPC 8.4(c) violation. See Attorney Grievance Comm'n v. Barton, 442 Md. 91, 142 (2015) (citation omitted) ("[w]e have found a [MLRPC] 8.4(c) violation when a misrepresentation is . . . based upon a concealment of material facts."); see also Attorney Grievance Comm'n v. Robaton, 411 Md. 415, 428 (2009) (holding that an attorney violated MLRPC 8.4(c) by failing to disclose a debtor's payment to a non-attorney professional on a bankruptcy form submitted to the court). Accordingly, we hold that when a lawyer, like Respondent, files a complaint and conceals his or her intent to collect attorney's fees by joining them together with the damages sought, listing one aggregate amount due, that lawyer commits misconduct.
In light of the above, we have no difficulty sustaining Petitioner's final exception, and therefore conclude that Respondent also violated MLRPC 8.4(d). MLRPC 8.4(d) provides that "[i]t is professional misconduct for a lawyer to . . . engage in conduct that is prejudicial to the administration of justice." Prejudice to the administration of justice may "be measured by the practical implications the attorney's conduct has on the day-to-day operation of our court system." Dore, 433 Md. at 710. Thus, we have held that depriving the court of knowledge and, in turn, the ability to act upon that knowledge is a violation of MLRPC 8.4(d). See Robaton, 411 Md. at 429 (holding that an attorney violated MLRPC 8.4(d) by failing to inform the court that a bankruptcy debtor was paying the attorney, which "deprived the court and trustee of the knowledge that the debtor was being assisted by counsel," thus preventing "the court and creditors of the ability to find out how much of the debtor's assets ha[d] been paid to the attorney").
Here, Respondent failed to inform the court that he was collecting attorney's fees.14 Through his omissions, Respondent deprived the court of the ability to evaluate the reasonableness of his fees, an essential judicial oversight function. See Cohn v. Bd. of Prof'l Responsibility, 151 S.W.3d 473, 489 (Tenn. 2004) ("[b]y filing for attorney's fees using a method that avoided, almost entirely, the scrutiny of the court, [respondent] eviscerated . . . [essential] judicial oversight functions."), superseded by statute, Tenn. Sup. Ct. R. 9, § 1.3, as recognized in Hughes v. Bd. of Prof'l Responsibility, 259 S.W.3d 631, 638 (Tenn. 2008). Respondent also failed to submit any supporting documentation justifying the reasonableness of the fees sought, in contravention of the Maryland Rules. See Md. Rule 3-306(c)(4)(C); Md. Rule 3-741(d)(2).15 Such conduct is prejudicial to the administration of justice, in violation of MLRPC 8.4(d). Robaton, 411 Md. at 429.
Respondent stresses that no District Court judge ever objected to his filings. Respondent is correct that, technically speaking, no objections were ever made, but that is not because the District Court judges approved of or overlooked Respondent's conduct; on the contrary, it is because those judges were unaware of what was occurring since Respondent's complaints, on their face, concealed the material fact that he was collecting attorney's fees. Respondent's conduct thus engendered disrespect for the court, constituting further evidence of his misconduct. See Attorney Grievance Comm'n v. Brigerman, 441 Md. 23, 40 (2014) (quoting Agbaje, 438 Md. at 717) ("'Conduct which is likely to . . . engender disrespect for the court is conduct prejudicial to the administration of justice.'").
MLRPC 8.4(a) provides, in relevant part, that "[i]t is professional misconduct for a lawyer to . . . violate . . . the Maryland Lawyers' Rules of Professional Conduct." Put simply, when an attorney violates any of the MLRPC, that attorney also violates MLRPC 8.4(a). Framm, 449 Md. at 664. Because we have held that Respondent violated multiple provisions of the MLRPC, Respondent necessarily also violated MLRPC 8.4(a). Butler, 456 Md. at 242.
Having determined that Respondent committed misconduct, we next address the presence of any mitigating or aggravating factors. A weighing of "the attorney's misconduct against any existing mitigating and aggravating factors" is essential to determining the proper sanction. Framm, 449 Md. at 665 (quoting Attorney Grievance Comm'n v. Coppola, 419 Md. 370, 405 (2011)). Bar Counsel bears the burden of proving the "existence of aggravating factors . . . by clear and convincing evidence." Attorney Grievance Comm'n v. Lang, 461 Md. 1, 27-28 (2018) (first citing Md. Rule 19-727(c); and then citing Attorney Grievance Comm'n v. Eckel, 443 Md. 75, 85 n.5 (2015)). The charged attorney "must show the presence of mitigating circumstances by a preponderance of the evidence." Id. at 27 (citing Joseph, 422 Md. at 695).
The hearing judge found several aggravating factors: Respondent's prior disciplinary record, his extensive experience practicing law, and his use of the improper filing method in more than one case.16 Respondent takes no issue with those findings, presumably because he believes he did not violate the MLRPC. Petitioner asks us to find the presence of additional aggravating factors, including a dishonest motive, a pattern of misconduct, and a refusal by Respondent to acknowledge the wrongful nature of his conduct. See Attorney Grievance Comm'n v. Sperling, 434 Md. 658, 676 (2013). We decline to so.
Petitioner has failed to satisfy its burden of proof regarding the existence of additional aggravating factors. We defer to the hearing judge's credibility finding that Respondent had no intent to deceive, Attorney Grievance Comm'n v. Tanko, 427 Md. 15, 55 (2012), and therefore we decline to conclude that he exhibited a dishonest motive, particularly given that he procured no pecuniary benefit from his misconduct. See Attorney Grievance Comm'n v. Stinson, 428 Md. 147, 195 (2012) (finding a dishonest and selfish motive because respondent retained unearned fees and double billed her client). We likewise cannot find that Respondent engaged in a pattern of misconduct because Petitioner has only presented us with two problematic complaints filed within a short time span. Despite Respondent's allusions during his testimony that he used the impermissible filing method in other cases, Petitioner has not proven that Respondent committed a series of violations over time.17 Attorney Grievance Comm'n v. Sperling, 459 Md. 194, 276 (2018); see also Coppola, 419 Md. at 406. And finally, the hearing judge's factual determination that Respondent demonstrated sincere remorse is not clearly erroneous.18 Sperling, 459 Md. at 276 (stating that the hearing judge is "in the best position to assess" remorse). This is not a case in which the charged attorney outright refused to acknowledge any wrongdoing or expressed remorse solely for purposes of damage control. See, e.g., Attorney Grievance Comm'n v. Sperling, 432 Md. 471, 497 (2013); Stinson, 428 Md. at 195; Attorney Grievance Comm'n v. Pennington, 387 Md. 565, 597 (2005).
The hearing judge also found several mitigating factors: Respondent did not profit from his conduct, no client suffered any harm, no court proceeding was ever disrupted, Respondent acted timely to cure his wrongs, and Respondent implemented new office procedures to prevent future problems. Petitioner, citing Attorney Grievance Comm'n v. Shuler, 443 Md. 494, 507 (2015), excepts to the findings that Respondent did not profit from his conduct and that no court proceeding was ever disrupted, arguing that these findings "do not constitute mitigation . . . under the applicable case law."19 We disagree.
Respondent has satisfied his burden of proof regarding the hearing judge's mitigation findings. A hearing judge has discretion to decide which mitigation factors are applicable based on the testimony before that judge, see Attorney Grievance Comm'n v. Guida, 391 Md. 33, 50 (2006), so long as those findings are "within the realm of permissible mitigating factors," Sperling, 459 Md. at 278 (citing Shuler, 443 Md. at 507). Here, the fact that Respondent did not profit from his conduct and that no court proceeding was ever disrupted "are within [that permissible] realm," id., even though such factors are not explicitly enumerated in our case law. See Lang, 461 Md. at 72 (sustaining Mr. Lang's exception to the hearing judge's failure to find that "his actions lacked any moral turpitude[,]" even though such a factor is not technically "a mitigating factor we recognize").
Finally, we turn to the appropriate sanction for Respondent's misconduct. Because "the purpose of attorney discipline is to protect the public, not punish the attorney[,]" Attorney Grievance Comm'n v. Mixter, 441 Md. 416, 527 (2015), "we aim to impose a sanction 'commensurate with the nature and gravity of the violations and the intent with which they were committed,'" Framm, 449 Md. at 665 (quoting Good, 445 Md. at 513).
We have imposed a range of sanctions for dishonest and deceitful conduct, from reprimand to disbarment, with a suspension (be it definite or indefinite) falling somewhere between the two. See Myers, 333 Md. at 449-50; Attorney Grievance Comm'n v. Litman, 440 Md. 205, 219 (2014). Our precedent indicates that disbarment is warranted, typically as a matter of course, when an attorney is "willfully dishonest for personal gain." Myers, 333 Md. at 449 (citation omitted). In contrast, a reprimand may be appropriate when, among other reasons, there is no specific intent and the charged attorney either is a neophyte who expeditiously admits to misconduct, Attorney Grievance Comm'n v. Maxwell, 307 Md. 600, 604 (1986), or lacks a disciplinary record, Attorney Grievance Comm'n v. Paul, 423 Md. 268, 293 (2011). Ultimately, however, "'[t]he appropriate sanction depends on the facts and circumstances of the case before us.'" Attorney Grievance Comm'n v. Sweitzer, 452 Md. 26, 43 (2017) (quoting Attorney Grievance Comm'n v. Levin, 438 Md. 211, 228 (2014)).
Here, neither disbarment nor a reprimand is suitable. On the one hand, Respondent did not exhibit a specific intent to deceive. He knowingly submitted inaccurate information to the court, but he did not purposefully do so for personal gain, and no client or the court suffered any palpable harm, rendering disbarment unsuitable. See Tanko, 427 Md. at 55 ("It is the absence of a specific intent to deceive, inherently dishonest conduct, and selfish motive that spares Respondent from the ultimate sanction of disbarment[.]"). On the other hand, Respondent is an experienced attorney, with a prior disbarment. Further, in the present disciplinary action, we have concluded that Respondent committed serious violations of the MLRPC, rendering a reprimand inadequate. See Attorney Grievance Comm'n v. Gordon, 413 Md. 46, 63 (2010) (holding that "misrepresentations to the court in violation of [MLRPC] 3.3(a)(1) . . . and 8.4(c)" warrant a sanction greater than a reprimand); Attorney Grievance Comm'n v. Cassidy, 362 Md. 689, 700 (2001) ("when we consider Respondent's conduct in light of his prior disciplinary history, it is clear that, to protect the public, an increase in the degree of discipline beyond that of a reprimand is necessary"); Maxwell, 307 Md. at 604.
Thus, we hold that an indefinite suspension from the practice of law is the appropriate sanction to be imposed in this case. See Attorney Grievance Comm'n v. Tun, 428 Md. 235, 246 (2012) (stating that intentional dishonest misconduct warrants disbarment, while unintentional or negligent misconduct usually warrants an indefinite suspension); Litman, 440 Md. at 219 ("Disbarment for misleading . . . a tribunal may be the correct sanction in many situations. In some cases . . . an indefinite suspension is more appropriate."). We are informed by our decisions in Attorney Grievance Comm'n v. Poverman, 440 Md. 588 (2014) and Attorney Grievance Comm'n v. Robaton, 411 Md. 415 (2009).20 In Poverman, a reciprocal disciplinary case, we imposed an indefinite suspension upon an attorney who falsely certified on his annual registration statement to the Delaware Bar that there were no disciplinary charges pending against him. 440 Md. at 592, 595, 607. In imposing the sanction, we balanced the severity of Poverman's misconduct—a knowing misrepresentation to an authoritative body—and his substantial experience practicing law with the fact that no clients or investors were ever harmed. Id. at 606-08. Similarly, in Robaton, we imposed an indefinite suspension upon an attorney who failed to make mandatory disclosures on several bankruptcy forms filed on behalf of a client. 411 Md. at 425-26. We stressed that although the misconduct "resulted from indifference, rather than from a selfish motive[,]" none of those facts negated the severity of the attorney's misconduct and the need for a comparable sanction. Id. at 430-31.
Respondent's conduct here is akin to Poverman and Robaton. Although Respondent may not have acted with a selfish motive or harmed any client, neither negates the fact that he knowingly submitted false information to the court, which any reasonable attorney with his extensive experience handling debt collection matters would have known to avoid. See Attorney Grievance Comm'n v. Hodes, 441 Md. 136, 208 (2014) (highlighting an attorney's substantial experience in a specific field of law as the basis for a more severe sanction). Furthermore, unlike in Poverman and Robaton, Respondent's disciplinary record is severely blemished by his previous disbarment.21 Accordingly, the indefinite suspension we impose here will adequately protect the public by "send[ing] the message to the legal community and the public at large that this Court [will not tolerate] this type of conduct." Dore, 433 Md. at 727. The suspension will begin thirty days after the filing date of this decision. Respondent will be eligible to apply for reinstatement no sooner than six months after his suspension takes effect. See Litman, 440 Md. at 220 (stating that we typically require a six-month waiting period to apply for reinstatement after imposing an indefinite suspension for dishonest conduct).
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 19-709(d), FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION AGAINST NEIL WARREN STEINHORN.
1 The Petition initially alleged that Respondent also violated MLRPC 1.5 (Fees), 1.15 (Safekeeping Property), and 1.16 (Declining or Terminating Representation), but Petitioner dropped these charges after the hearing.
2 On July 1, 2016, the Maryland Lawyers' Rules of Professional Conduct were renamed the Maryland Attorneys' Rules of Professional Conduct and were recodified, without substantive changes, to Title 19 of the Maryland Rules. Because we judge Respondent's conduct based on the extant rules at the time of his actions, we refer to the MLRPC throughout this decision. Attorney Grievance Comm'n v. Butler, 456 Md. 227, 230 n.1 (2017).
3 Respondent's convictions were affirmed in an unpublished decision, see United States v. Steinhorn, 946 F.2d 888 (4th Cir. 1991), and his request for post-conviction relief was subsequently denied in an unpublished decision, see United States v. Steinhorn, 986 F.2d 1416 (4th Cir. 1993).
4 The math indicates that Respondent's fees were closer to thirty-two percent of the total amount recovered, not the thirty percent he indicated in his testimony.
5 The hearing judge's findings note that Respondent "determined the monthly amounts due from the debtor to be $144 and that his agreed attorney's fee was $46, calculated at 30% of the amount recovered. Each of the complaints filed on behalf of Kingswood failed to state these damage amounts separately, instead claiming an aggregate of $190 per month in damages." The figures discussed above illustrate the aggregate of these monthly assessments over the four-year delinquency period to demonstrate how the $9,120 figure was calculated.
7 MLRPC 3.3 is now codified at Maryland Rule 19-303.3.
8 MLRPC 1.15(b), now codified at Maryland Rule 19-301.15, provided, at the time of the Taylor decision, that "[a] lawyer may deposit the lawyer's own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for the purpose." Taylor, 405 Md. at 714. The revised Maryland Rule 19-301.15(b) refers readers to Maryland Rule 19-408(b) for the same proposition.
9 The instructions for the District Court complaint form specify that attorneys "need to indicate . . . whether [they] are claiming 'attorney's fees.'" Eliot M. Wagonheim, District Court of Maryland, Small Claims: How to File a Small Claim in the District Court of Maryland 12 (2016), https://perma.cc/CZN2-RQD9. Any reasonable attorney with over a decade of experience filing small claims with the District Court would know that attorney's fees must be listed separately from the principal damages sought.
10 The record indicates that Respondent's work force is small, consisting primarily of family members, including his two sons, his wife, and a part-time secretary. It is unclear whether any of these individuals are attorneys, but Respondent's testimony makes clear that he is responsible for approving all legal filings.
11 It is insignificant that Respondent has now implemented new office procedures designed to prevent this issue from arising again because, by his own admission, he never corrected either of the inaccurate complaints previously filed with the court, despite the continuing obligation to do so. See Joseph, 422 Md. at 699.
12 MLRPC 8.4 is now codified at Maryland Rule 19-308.4.
13 The MLRPC inherently envisions a difference between dishonesty and misrepresentation, as MLRPC 8.4(c), for example, lists the two as separate ways to commit misconduct. Here, Respondent committed an affirmative dishonest act by listing $9,120 as the total debt owed, when he knew only $6,912 was due as debt, which violated MLRPC 3.3(a)(1) and 8.4(c); however, he also misled the court through silence, rather than an affirmative falsity, by not indicating his intention to collect attorney's fees, which constitutes a distinct violation of MLRPC 8.4(c). It is true that "[t]here are circumstances where failure to make a disclosure" can violate MLRPC 3.3(a)(1), cmt. 3 to MLRPC 3.3, but those tend to involve situations where an attorney makes intentional misrepresentations to the court to achieve a specific outcome. See, e.g., Framm, 449 Md. at 659.
14 Notably, none of the filings that Respondent submitted to the court (e.g., the complaints, statements of fees due, and requests for garnishment on wages) as part of his debt collection work for Kingswood included any information about Respondent's intentions to collect attorney's fees.
15 Maryland Rule 3-306(c)(4)(C), for example, requires a plaintiff's attorney seeking attorney's fees to demonstrate entitlement to and the reasonableness of those fees. Similarly, Maryland Rule 3-741(d)(2) requires an attorney to provide evidence supporting the right to any fees sought in judgment on affidavit proceedings. These rules are designed to assist the court in assessing the reasonableness of attorney's fees given the risk for abuse.
16 We note that because the hearing judge concluded that Respondent did not commit any MLRPC violations, "it was not necessary for the hearing judge to make findings of fact relevant to aggravating factors." Attorney Grievance Comm'n v. Dyer, 453 Md. 585, 657-58 (2017). However, because we have concluded that Respondent committed violations of the MLRPC, we rely on the hearing judge's aggravation and mitigation findings to determine the appropriate sanction.
17 Petitioner argues that Respondent engaged in a pattern of misconduct; yet, Petitioner only submitted two problematic filings into the record. Thus, any reference to other potential improper filings are "not a part of the record before [us]," and therefore, "we will not address such matters." Attorney Grievance Comm'n v. Vanderlinde, 364 Md. 376, 381 n.1 (2001).
18 During his testimony, Respondent expressed regret for the erroneous filings, stating, "I'm just totally ashamed that I'm here for myself and my family. . . . I should not have agreed that [the fees] be presented to the court that way. . . . I [made] a mistake."
19 In Shuler, we provided a list of fourteen mitigating factors. 443 Md. at 507. Petitioner claims that because two of the hearing judge's mitigation findings (that Respondent did not profit from his misconduct and that no court proceedings were ever disrupted) are not explicitly included in that list, those findings should not be considered as mitigating factors in this case. Petitioner essentially treats our list in Shuler as exhaustive. We reject such a rigid interpretation of our case law. We have long held that the list of mitigating factors is "non-exhaustive." See, e.g., Attorney Grievance Comm'n v. Sheridan, 357 Md. 1, 31 (1999); Attorney Grievance Comm'n v. Stolarz, 379 Md. 387, 405 (2004).
20 We have imposed indefinite suspensions upon other attorneys who knowingly misrepresented material facts. E.g., Litman, 440 Md. at 221; Attorney Grievance Comm'n v. Kepple, 432 Md. 214, 232 (2013); Attorney Grievance Comm'n v. Harrington, 367 Md. 36, 51 (2001); Attorney Grievance Comm'n v. Cohen, 361 Md. 161, 179 (2000).
21 Although we have imposed a ninety-day suspension on other attorneys who submitted similar false filings with the court, none of those attorneys had a prior discipline record. See Dore, 433 Md. at 720, 727; Attorney Grievance Comm'n v. Geesing, 436 Md. 56, 68, 71 (2013); Attorney Grievance Comm'n v. Parsons, 310 Md. 132, 142-43 (1987). Here, Respondent was previously disbarred, a factor that "in and of itself" may provide grounds for disbarment, although we decline to impose such a sanction given the nature of Respondent's misconduct and the mitigating factors discussed supra. See Attorney Grievance Comm'n v. Shakir, 427 Md. 197, 208 (2012) ("A history of MLRPC violations may provide justification for disbarment in and of itself[.]"); Attorney Grievance Comm'n v. Harris, 371 Md. 510, 556-57 (2002) (emphasizing the need to impose a severe sanction, an indefinite suspension, due to the attorney's prior discipline history, while stressing that disbarment was not warranted because the attorney's personal circumstances, his preoccupation with the death of his mother and mother-in-law, mitigated his misconduct).
Decided on December 20, 2018 .

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