Attorney Grievance v. Caplan

282 A.3d 1104, 482 Md. 2

• Court: Court of Appeals of Maryland
• Decided: September 13, 2022
• Docket: 9ag/22
• Status: Published

Opinion

ATTORNEY GRIEVANCE COMMISSION * IN THE OF MARYLAND * COURT OF APPEALS

* OF MARYLAND v. * Misc. Docket AG No. 9

DAVID OLLIE CAPLAN * September Term, 2022

ORDER

WHEREAS, on July 5, 2022, Petitioner filed a Petition for Disciplinary or

Remedial Action, alleging that Respondent violated Arizona Rule of Professional Conduct

8.4(c) (“It is professional misconduct for a lawyer to: . . . engage in conduct involving

dishonesty, fraud, deceit or mispresentation[.]”) and Arizona Rule 43(a) of the Rules of the

Supreme Court of Arizona concerning trust accounts and alleging that Respondent, as part

of an Agreement for Discipline by Consent, stipulated that he engaged in conduct in

violation of Arizona Rule of Professional Conduct 8.4(c) and Rule 43(a) of the Rules of

the Supreme Court of Arizona and received a four-year suspension from the practice of

law in Arizona,

WHEREAS, Petitioner has alleged that, under Maryland Rule 19-737(e),

exceptional circumstances exist warranting substantially different discipline in this State,

namely, disbarment, WHEREAS, on July 6, 2022, this Court issued a Show Cause Order, directing

Respondent to show cause in writing on or before August 22, 2022 based on the grounds

set forth in Maryland Rule 19-737(e) why corresponding discipline should not be imposed,

WHEREAS, Bar Counsel, on behalf of Petitioner, filed an Affidavit of Service

averring that Respondent was served with the Petition for Disciplinary or Remedial Action

and Show Cause Order on July 11, 2022,

WHEREAS, Respondent failed to respond to the Show Cause Order issued on July

6, 2022,

WHEREAS, on August 17, 2022, Bar Counsel filed Petitioner’s Response to Show

Cause Order, requesting that Respondent be disbarred,

WHEREAS, on August 25, 2022, this Court issued a second Show Cause Order,

specifically directing Respondent to show cause in writing on or before September 9, 2022

why his conduct does not warrant imposition of substantially different discipline in this

State than that imposed in Arizona, namely the sanction of disbarment,

WHEREAS, Bar Counsel, on behalf of Petitioner, filed an Affidavit of Service

averring that Respondent was served with the Petition for Disciplinary or Remedial Action

and Show Cause Order of August 25, 2022, on August 29, 2022,

WHEREAS, Respondent failed to respond to the Show Cause Order of August 25,

2022, WHEREAS, Respondent entered into an Agreement of Discipline by Consent with

the State Bar of Arizona, which Respondent signed, in which Respondent conditionally

admitted that his conduct violated Arizona Rule of Professional Conduct 8.4(c) and

Arizona Rule 43(a), in exchange for the imposition of a four-year suspension from the

practice of law in Arizona upon acceptance of the Agreement,

WHEREAS, the Agreement of Discipline by Consent contained a statement of facts

describing the underlying conduct, namely, that between 2015 and 2019, Respondent

received funds totaling $51,760 paid to him by a client for fees associated with forty-six

patent applications, but then failed to remit payment in those cases to the United States

Patent and Trademark Office and instead transferred the funds to personal checking and

savings accounts; Respondent failed to notify the client of his failure to make the necessary

payments and in some instances falsely indicated to the client that the fees were paid;

Respondent’s failure to remit payment to the United States Patent and Trademark Office

resulted in several of the client’s patent applications being deemed abandoned; Respondent

did not timely notify the client of the abandonments and his failure to make the necessary

payments; and Respondent failed to maintain a general ledger, administrative funds ledger,

duplicate deposit records, and monthly reconciliations for his trust account,

WHEREAS, the Agreement for Discipline by Consent was filed on February 9,

2022 with the Presiding Disciplinary Judge, who issued a “Decision Accepting Agreement

for Discipline by Consent” on February 11, 2022, which incorporated by reference the

factual basis in support of the conditional admissions contained in the Agreement, WHEREAS, in the Decision, based on the statement of facts in the Agreement, the

Presiding Disciplinary Judge found that: in forty-six cases, Respondent received funds

from the client for fees to be paid to the United States Patent and Trademark Office but

failed to make the necessary payments, resulting in patent applications being deemed

abandoned; Respondent did not timely advise the client of the abandonments or of his

failure to make necessary payments; Respondent commingled funds he received from the

client with his business and personal funds and failed to adhere to rules and guidelines

governing client trust accounts; and Respondent falsely represented to the State Bar of

Arizona that he maintained professional liability insurance when in actuality he had been

uninsured since 2016,

WHEREAS, in the Decision Accepting Agreement for Discipline by Consent, the

Presiding Disciplinary Judge noted that Respondent admitted to violating Arizona Rule of

Professional Conduct 8.4(c) and Arizona Rule 43(a), and on the same day, February 11,

2022, stated that “[a] strong argument can be made that disbarment is the more appropriate

sanction given the knowing nature of Mr. Caplan’s misconduct[,]”

WHEREAS, the Presiding Disciplinary Judge issued a Final Judgment and Order,

suspending Respondent from the practice of law in Arizona for four years,

WHEREAS, under Maryland case law, namely, Attorney Grievance Comm’n v.

Vanderlinde, 364 Md. 376, 413-19, 773 A.2d 463, 485-88 (2001), and Attorney Grievance

Comm’n v. Collins, 477 Md. 482, 529-30, 270 A.3d 917, 945-46 (2022), it is well established that the sanction of disbarment is warranted where the dishonest conduct at

issue involves theft, fraud, harm to a client or third party, or the intentional

misappropriation of funds,

WHEREAS, under Maryland Rule 19-737(e), we conclude by clear and convincing

evidence that exceptional circumstances exist, namely, that the imposition of

corresponding discipline would result in a grave injustice and the conduct established

warrants substantially different discipline in this State,

Accordingly, it is this 13th day of September, 2022,

ORDERED, by the Court of Appeals of Maryland, that Petitioner’s request that

Respondent be disbarred from the practice of law is GRANTED; and it is further

ORDERED, that the Respondent, David Ollie Caplan, be, and hereby is, disbarred,

effective immediately, from the practice of law in the State of Maryland; and it is further

ORDERED, that the Clerk of this Court shall remove the name of David Ollie

Caplan from the register of attorneys, and pursuant to Maryland Rule 19-761(b), shall

certify that fact to the Trustees of the Client Protection Fund and the Clerks of all judicial

tribunals in this State.

Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic.

/s/ Matthew J. Fader 2022-09-13 09:46-04:00 Chief Judge

Suzanne C. Johnson, Clerk