Attorney failed to reveal to client case had been dismissed years earlier
By Lauren Kirkwood
The Daily Record Newswire
BALTIMORE — A divided Court of Appeals indefinitely suspended a longtime personal-injury lawyer who misled his client for five years about the status of her medical malpractice claim.
When Eugene Alan Shapiro eventually revealed to Diana Wisniewski that her claim had been dismissed years earlier, he also drafted and entered into a settlement of her potential legal malpractice claim against him without advising her, in writing, to seek independent counsel.
In its 5-2 decision to suspend rather than disbar Shapiro — who was admitted to practice in 1973 — the court balanced the severity of his actions with the fact that his misconduct was limited to one client and one case.
“In cases where an attorney’s repeated material misrepresentations constitute a pattern of deceitful conduct … the appropriate sanction is often disbarment,” Judge Glenn T. Harrell Jr. wrote for the court. “We have not, however, always found disbarment to be the appropriate sanction where there is misrepresentation involved, especially where misappropriation of money was not involved.”
However, Judge Lynne A. Battaglia dissented in a nine-page opinion that was joined by Judge Shirley M. Watts, arguing that Shapiro’s actions constituted a pattern of misconduct that warranted disbarment.
In her dissenting opinion, however, Battaglia compared Shapiro’s actions to past instances in which attorneys with similar degrees of misconduct were disbarred.
“Not only did [Shapiro] lie to Wisniewski about the status of her case, his lies spiraled: he told her that the case had settled when no such settlement had occurred, but ultimately he did not have the money available to fund the ‘settlement,’” Battaglia wrote, adding that Shapiro only told Wisniewski the truth about her case after she filed a complaint with the Attorney Grievance Commission.
No certificate of merit
Wisniewski retained Shapiro, of the Baltimore firm Shapiro & Schaub, in September 2005 to pursue a medical malpractice suit against St. Agnes Hospital. She alleged that she suffered an infection due to knee surgery performed there in 2004.
Shapiro did not inform Wisniewski of his struggle to find a medical expert who would file the required certificate of merit that would allow the claim to proceed. Instead, in July 2007, he filed a statement of claim with the Health Claims Arbitration Office in an attempt to protect the claim from being barred by the statute of limitations.
The office quickly dismissed the claim because no certificate of merit had been filed, but instead of telling Wisniewski this, Shapiro led her to believe the claim was still active, and concealed its true status for five years.
During fall 2012, Shapiro told Wisniewski — who still believed the case was progressing — that a settlement had been reached but that he did not have the money she was to receive from it. As a result, Wisniewski filed a complaint with the Attorney Grievance Commission in October 2012.
Soon after, Shapiro revealed to Wisniewski that the claim had actually been dismissed years before, and in December 2012, he entered into a settlement agreement with her. According to the agreement, Shapiro would pay her a lump sum of $12,500, followed by monthly payments of $2,000 beginning in January 2013 and continuing until a total of $66,000 had been paid.
The $66,000 sum was equal to the amount Wisniewski would have received if the case against St. Agnes had settled for $100,000 — the amount she would have accepted as a settlement, according to Shapiro.
However, Shapiro entered into this agreement without first advising Wisniewski in writing to seek independent counsel, a clear violation of the Maryland Lawyers’ Rules of Professional Conduct, Harrell wrote in the majority opinion.
Bar Counsel Glenn Grossman declined to comment on the case. Shapiro did not respond to a telephone message at his office seeking comment.
An evidentiary hearing was held in Baltimore City Circuit Court on May 16, 2014, and the Court of Appeals heard arguments in the case on Dec. 5.
Tax trouble
The court noted multiple aggravating factors in considering the appropriate sanction, including Shapiro’s 30 years of experience in the practice of law, his multiple violations in this case and his previous run-in with Bar Counsel in 2012, when he was reprimanded for failing to remit withheld taxes to the IRS in a timely manner.
Although Harrell’s opinion for the court emphasized the severity of Shapiro’s actions in his representation of Wisniewski, the court also took into account the fact that he made no misrepresentations to a court and did not attempt to downplay the significance of his misconduct.
“Shapiro’s misrepresentations … related to one client and one case, although spread over several years,” Harrell wrote. “[Shapiro’s] settlement with Wisniewski, although handled improperly, indicated a willingness to attain some sort of restitution.”
