MD Court of Appeals rules mitigating factors make sanction a second

An attorney who was suspended from the practice of law in October 2004 for having an overdrawn trust account has been suspended again by the state's highest court. The Court of Appeals found that Shuan H.M. Rose violated several ethical rules, including failure to act diligently in a client's divorce case and failure to keep fees in a separate attorney trust account. The top court stopped short of disbarment, however, relying on the hearing judge's assessment that Rose's severe depression affected his normal day-to-day activities sufficiently to mitigate his professional misconduct - the standard set in the 2001 case of Attorney Grievance Commission v. Vanderlinde.[W]e are persuaded that this is the appropriate sanction, given the mitigating factors the hearing court found and the fact that [Rose's] rehabilitation efforts, although ongoing and, we believe, sincere, are not clearly defined or particularly specific, Chief Judge Robert M. Bell wrote for the court. Rose, as the hearing judge pointed out, did not act with a dishonest or selfish motive - unlike another attorney discipline case decided this week, where the top court refused to find that depression met the Vanderlinde standard for mitigation. In that case, Attorney Grievance Comm.'n v. Guida, the attorney in question forged a judge's signature on a fake adoption order. Rose's client, William Horne, retained him in June 2003, paying a flat fee of $500 for a divorce. According to the opinion, Rose failed to deposit any portion of the fee into an attorney escrow account. Rose filed the complaint the following month but did not inform his client of that fact until December; nor did he attempt to obtain service on the defendant that fall.He also changed addresses without telling Horne, forcing the client to make several attempts to find him. Horne subsequently obtained new counsel, but Rose failed to immediately return the unearned portion of the fee.In December 2003, Horne complained to the Attorney Grievance Commission, which also had problems tracking Rose down; the attorney failed to respond to several letters by bar counsel.At a May 2005 hearing, Baltimore City Circuit Judge Evelyn O. Cannon found that Rose had violated the Maryland Rules of Professional Conduct pertaining to diligence and a lawyer's duty to keep the client informed, deposit fees in a trust account, keep client funds separate, promptly return unearned fees and respond promptly to bar counsel inquiries.Regarding mitigating factors, the hearing judge noted that Rose was being treated for his depression and was willing and able to address his problems. He was also exploring options for a physical disability, which rendered him unable to use a standard computer keyboard. Rose has not applied for reinstatement, nor has he been practicing law, since his indefinite suspension in 2004 on the unrelated matter of an overdrawn trust account. As in the prior case, the top court cautioned yesterday that any petition for reinstatement will have to address the respondent's then present mental condition, as well as his overall fitness to practice law.The more you do to recognize the problem before you come up for sanctions, the better off you'll be, said Baltimore lawyer Nevett Steele Jr., who has handled attorney discipline cases in the past although he was uninvolved in the present matter. When it's deceit-related, there's not a lot you can do except say you're sorry.Salisbury lawyer William A. Lee Clarke III, who represented an Eastern Shore attorney in what he said was the first case to meet the Vanderlinde standard (Attorney Grievance Comm'n v. Christopher), questioned whether Vanderlinde even applied in a case where there was no apparent dishonesty - though the hearing court cited Vanderlinde in making its decision.Vanderlinde doesn't apply to doing sloppy work or neglecting your work, Clarke said.Rose could not be reached for comment yesterday. BELL: ONGOING EFFORTSWHAT THE COURT HELDCase:Attorney Grievance Commission v. Shuan H.M. Rose, CA Misc. Docket AG No. 62. Published. Opinion by Bell, C. J. Filed February 8, 2006.Issue:Did an attorney violate the Maryland Rules of Professional Conduct by, among other things, failing to keep client fees in a separate account, failing to keep his client informed and failing to respond to bar counsel?Holding:Yes; the sanction is indefinite suspension. The attorney was undergoing treatment for depression and did not act with a dishonest or selfish motive, factors which mitigated his conduct.Counsel:Delores O. Ridgell for petitioner; Shuan H.M. Rose pro se.

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