Attorney Grievance Comm'n of Md. v. Moody , 457 Md. 90 ( 2017 )

Attorney Grievance Commission v. Maurice Marnea Moody, Misc. Docket AG No. 38,
September Term 2016. Opinion by Hotten, J.
ATTORNEY DISCIPLINE - SANCTIONS - DISBARMENT
Maryland Court of Appeals disbarred from practice of law an attorney who intentionally
failed to keep client property secured; commingled client funds; failed to keep adequate
records regarding deposits, disbursements and payments to third parties; made prohibited
transactions from client trust account; and made intentional misrepresentations to Bar
Counsel during a lawful investigation. Such conduct violated former Maryland Lawyer’s
Rules of Professional Conduct (“MLRPC”) 1.15 (Safekeeping Property), 8.1 (Bar
Admission and Disciplinary Matters), 8.4 (Professional Misconduct), and Maryland Rules
16-606.1 (Attorney Account Record-Keeping), 16-607 (Commingling Funds), and 16-609
(Prohibited Transactions).
Circuit Court for Baltimore County
Case No. 03-C-16-010220
Argued: September 12, 2017 IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 38
September Term, 2016
__________________________________
ATTORNEY GRIEVANCE
COMMISSION OF MARYLAND
v.
MAURICE MARNEA MOODY
__________________________________
Barbera, C.J.,
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
__________________________________
Opinion by Hotten, J.
__________________________________
Filed: December 20, 2017
Respondent, Maurice Marnea Moody, gained admission to the Bar of Maryland on
June 5, 1996. On June 22, 2016, the Attorney Grievance Commission (“the Commission”
or “Petitioner”), through Bar Counsel, filed in this Court a Petition for Disciplinary or
Remedial Action (“Petition”) against Respondent. Bar Counsel charged Respondent with
violating the Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) and the
Maryland Rules governing attorney trust accounts. Specifically, Bar Counsel alleged that
Respondent violated the following provisions: MLRPC: 1.15 (Safekeeping Property), 8.1
(Bar Admission and Disciplinary Matters), 8.4 (Professional Misconduct), Maryland Rules
16-606.1 (Attorney Account Record-Keeping), 16-607 (Commingling Funds), and 16-609
(Prohibited Transactions). 1
This Court transferred the case to the Circuit Court for Baltimore County on
September 29, 2016, for fact-finding proceedings. On October 5, 2016, Petitioner was
unable to serve the summons on Respondent prior to its expiration. The clerk reissued the
summons and the Client Protection Fund (“CPF”) served the summons on Respondent on
December 13, 2016. At that time, the CPF provided Respondent with the Petition,
transmittal order, and summons at three different addresses. Respondent’s Answer to the
Petition were due on January 3, 2017. On January 6, 2017, the circuit court entered a
1
Effective July 1, 2016, the Maryland Rules were revised. The MLRPC were
renamed the Maryland Attorneys’ Rules of Professional Conduct (“MARPC”)
renumbered. Rules Order (June 6, 2016). The revised rules are now numbered as follows:
MLRPC 19-301.15(a) (Safekeeping Property), MLRPC 19-308.1 (Bar Admission and
Disciplinary Matters), MLRPC 19-308.4 (Professional Misconduct). The Maryland Rules
are now numbered as 19-407 (Attorney Account Record-Keeping), 19-408 (Commingling
Funds), and 19-410 (Prohibited Transactions).
Default Judgment against the Respondent, because he failed to file a timely answer. On
that same day, the court scheduled a hearing for February 9, 2017, and the Respondent
failed to appear. Subsequently, on February 23, 2017, Respondent filed a Motion to Vacate
the Default Judgment, which Petitioner opposed. The circuit court ultimately denied the
Respondent’s Motion on February 28, 2017.
The hearing judge rescheduled the matter for March 1, 2017. On that day,
Respondent failed to attend also failing to respond to Petitioner’s discovery requests.
Therefore, Pursuant to Maryland Rule 2-424, the hearing judge admitted into evidence
Petitioner’s Request for Admissions of Fact and Genuineness of Documents along with
other documents obtained throughout the investigation. Thereafter, the hearing judge
issued written findings of fact and proposed conclusions of law, concluding that
Respondent had in fact violated MLRPC 1.15, 8.1, 8.4(d), and Maryland Rules 16-606.1,
16-607, and 16-609. Respondent filed no exceptions and there was no recommendation
regarding the appropriate sanction. Petitioner recommended disbarment. Following oral
argument, this Court issued a per curiam order disbarring Respondent. This opinion details
the rationale for our decision.
I.
A. The Hearing Judge’s Findings of Fact
On June 5, 1996, Respondent gained admission to the Maryland Bar. On June 29,
2004, this Court ordered, by consent, that Respondent receive a 90-day suspension for
violations of the then-named MLRPC 1.1, 1.3, 1.4, 1.16(d), 8.1(b), and 8.4(d). The facts
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presented demonstrated that Respondent failed to attend a hearing during a child support
case, failed to file a post-conviction petition, failed to obtain service of process in a divorce
case, and failed to timely file a claim for uninsured motorist benefits. On January 11, 2005,
Respondent was reinstated after serving the suspension.
In December 2014, Respondent received a Commission reprimand due to his failure
to maintain adequate records regarding his attorney trust account, resulting in an overdraft
from that account. Respondent also commingled client and third-party funds, resulting in
a violation of MLRPC 1.15(a). Specifically, the reprimand stemmed from Respondent’s
failure to withdraw earned fees promptly from his attorney trust account. Consequently,
Respondent was required to meet with a Commission Investigator, and review the
accounting rules and a DVD explaining Escrow Management.
Regarding the instant Petition, the Commission received a notice from M&T Bank
on January 20, 2015, referring to a January 14, 2015 overdraft of Respondent’s trust
account. The notice revealed that Check No. 1033 in the amount of $104.00 was presented
for payment, but the account did not contain sufficient funds to cover the check, which
resulted in an overdraft in the amount of $26.79. Thereafter on January 27, 2015, Bar
Counsel sent letters to Respondent, both by regular and certified mail, seeking an
explanation for the overdraft, requesting that Respondent produce copies of his trust
account records from November 2014 until January 2015. Respondent replied to Bar
Counsel’s letter on or about February 5, 2017, but failed to produce the records.
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On April 22, 2015, Bar Counsel sent a letter to Respondent, again requesting copies
of his trust account bank records. On May 6, 2015, Bar Counsel received a copy of
Respondent’s ledger titled “Check Register for Attorney Trust Account” (“Check
Register”). Additionally, Bar Counsel received copies of Respondent’s client ledgers,
checks, deposit slips, and bank statements for the period between November 2014 and
January 2015. Bar Counsel sought an admission of fact from Respondent that he had
prepared and reviewed his check register for accuracy. Respondent did not respond to Bar
Counsel’s request, thereby admitting that he prepared and reviewed his check register for
accuracy. See Md. Rule 2-424(b).
Bar Counsel noted several discrepancies reflecting attorney misconduct.
Specifically, Respondent’s Check Register provided that Check No. 0055, in the amount
of $7,850.60, was made payable to USAA for his client B. Jackson for medical services.
However, a copy of Check No. 0055 revealed that the check was made payable to the
Respondent. Respondent’s Check Register also indicated that Check No. 1024, in the
amount of $1,050.00, was made payable to Will Mcines for his client, S. Jones, for medical
services. Further, the Client Ledger Card for S. Jones listed Will Mcines, MD, as a medical
provider in relation to her personal injury matter. In addition, the Client Ledger Card for
M. Jones also indicated that Respondent issued a check payable to Will Mcines, MD for
$1,050.00. Further investigation revealed that Will Mcines was not a physician, medical
professional, or medical provider, but instead, was Respondent’s landlord from whom
4
Respondent rented office space. As a result, Bar Counsel concluded that the Check
Register and Client Card entries were fraudulent.
Respondent’s Check Register provided that both Check No. 1027, in the amount of
$750.00, and Check No. 1041, in the amount of $300.00, were made payable to
Respondent, for his client, L. Jones, for fees. However, further investigation revealed that
this entry was fraudulent and that Respondent’s Client Ledger Card for L. Jones showed
that the fee was in fact $1,650.00, not the $1,050.00 that Respondent paid from his trust
account. Further, with regard to S. Jones, Respondent’s Check Register provided that
Check No. 1029, in the amount of $500.00, Check No. 1039, in the amount of $1,000.00,
and Check No. 1040, in the amount of $600.00, were made payable to Respondent for fees
totaling $2,100.00. However, the Client Ledger Card for S. Jones indicated that
Respondent received $2,164.00 for fees. Moreover, Respondent’s Disbursement Sheet for
S. Jones listed the fee as $2,000.00, an amount contradicting the other records. These
irregularities reflected a pattern of improper record keeping that resulted in erroneous fee
payments.
Through its investigation, Bar Counsel also identified additional discrepancies in
Respondent’s accounting for L. Jones. Specifically, the Check Register listed that
Respondent issued Check No. 1030, in the amount of $459.00, on behalf of L. Jones to
Maryland Healthcare Clinics (“MHC”) for medical services. However, the Client Ledger
Card indicated that Respondent paid $984.00 to MHC for L. Jones’ fees. A copy of the
check showed conclusively that MHC was in fact only paid $459.00 on behalf of L. Jones
5
for medical services. Next, the Check Register indicated that Respondent issued Check
No. 1038, in the amount of $688.00 to L. Jones for the settlement of the Jones matter. A
copy of Check No. 1038 matched the Check Register but the Client Ledger Card for L.
Jones indicated that the amount of settlement disbursed to L. Jones was actually $2,688.00.
In addition to the above discrepancies, the hearing judge also found violations with
regard to the representation of M. Brice. Respondent’s Check Register reflected that Check
No. 1043, dated December 20, 2014 in the amount of $500.00, and Check No. 0055, dated
January 7, 2015 in the amount of $600.00, were both made payable to Respondent for fees
totaling $1,100. The Respondent’s Client Ledger Card, however, reflected that, as of April
22, 2015, Respondent’s fee for representing M. Brice was $1,022.00 and that as of July 14,
2015, the fee was $2,072.00. The Client Ledger Card also reflected that $1,050.00 was
paid to Mr. Mcines, the Respondent’s landlord and was not on behalf of M. Brice. The
Check Register also reflected that on December 25, 2014, Respondent wrote Check No.
055, for $500.00, on behalf of M. Brice to MHC for medical services. An actual copy of
Check No. 055, dated December 24, 2014, showed that it was in fact made payable to
Respondent for $500.00. Notably, the Client Ledger Cards for M. Brice reflected that as
of July 14, 2015, Mr. Brice had an outstanding bill of $1,828.00, owed to MHC. The
Disbursement Sheet for M. Brice reflected, however, that Mr. Brice’s bill from MHC was
only $1,728.00.
The hearing judge found a final instance of subpar accounting practices in the case
of Respondent’s representation of B. Jones. The Check Register indicated that Respondent
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wrote Check No. 1042 for $1,000.00 on January 26, 2015 to himself for fees. The Client
Ledger Card for B. Jones reflected however, that Respondent was due $2,212.00 for
representation of B. Jones.
On July 1, 2015, Bar Counsel sent a letter to Respondent requesting an explanation
regarding the payments to Will Mcines, MD on behalf of S. Jones and M. Brice. On July
16, 2015, Bar Counsel received a letter from Respondent, dated July 14, 2015 that included
a copy of a revised Check Register for Respondent’s Trust Account (“Second Check
Register”) and a revised Client Ledger Card for M. Brice. Bar Counsel again requested
that Respondent admit that he prepared the Second Check Register and the revised Client
Ledger Card for Mr. Brice. Respondent again failed to respond to the requests, thereby
admitting them. The hearing judge subsequently concluded that Respondent’s Second
Check Register contained false or incorrect information, in comparison to copies of actual
checks and bank statements received from Respondent’s attorney trust account. See Md.
Rule 2-424(b).
In the Second Check Register, Respondent represented that he issued Check No.
0055 dated December 24, 2014 for $500.00 to medical provider MHC on behalf of M.
Brice. A copy of the check revealed that it was made payable to Respondent. The Second
Check Register also represented that Respondent wrote a check on December 7, 2014, to
USAA on behalf of B. Jackson for $1,050.00. The bank records contained a copy of a
check, which showed that Respondent issued the check again to Will Mcines. The hearing
judge also stated that Respondent’s Client Ledger Card for B. Jackson revealed that
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Respondent claimed a fee of $10,000.00, but Respondent’s Disbursement Sheet, claimed
that his fee in the matter was $12,870.00.
On or about July 31, 2015, Bar Counsel issued subpoenas to M&T Bank and
Respondent, seeking complete records of Respondent’s attorney trust account for the
period between January 2013 and July 31, 2015. Bar Counsel analyzed the records, which
revealed discrepancies and misrepresentations by Respondent concerning the amounts of
various checks and the identities of various payees in both Check Registers and Client
Ledgers. As a result, on July 22, 2015, Bar Counsel directed Respondent to provide his
complete files for B. Jackson, M. Brice, S. Jones, B. Jones, and L. Jones. Respondent
complied on August 15, 2015.
The August 15, 2015, Client Ledger Cards and Settlement Statements for the above
referenced clients contained different information regarding payees and check amounts
when compared against Respondent’s May 6, 2015 disclosure. Entries on the Client
Ledger Cards and Settlement Statements were also inconsistent with the attorney trust
account records received from M&T Bank. For example, S. Jones received a settlement
check from GEICO Insurance Co. in the amount of $6,500.00, but the Client Ledger Card
and Settlement Statement provided by Respondent reflected the following disbursements:
(1) $2,000.00 to Respondent; (2) $1,362.00 to MHC; and (3) $3,138.00 to S. Jones.
However, the bank records from Respondent’s trust account reflected the following: (1)
Check No. 1031 to S. Jones for $3,138.00; (2) Check No. 1026 to Will Mcines for
$1,050.00; (3) Check No. 1039 to Respondent for $1,000.00; and (4) Check No. 1040 to
8
Respondent for $600.00, totaling $5,788.00. The bank records did not reflect any payment
to either MHC for $1,362.00 on behalf of S. Jones.
On January 8, 2016, Bar Counsel received a fax from Respondent dated January 1,
2006. The hearing judge noted that the 2006 date listed was likely an error. Nonetheless,
the fax consisted of a cover sheet with a handwritten note from Respondent and a three-
page document titled “Check Register for Attorney Trust Account” (“Third Check
Register”). Bar Counsel again sought an admission from Respondent that he had prepared
and reviewed the Third Check Register for accuracy, but Respondent again failed to
respond. As such, the hearing judge treated those facts as conclusively admitted. See Md.
Rule 2-424(b). In the Third Check Register, Respondent indicated that he wrote Check
No. 55, dated November 19, 2014, for $7,850.60, on behalf of B. Jackson to Medical
Providers for services provided to B. Jackson. The actual copy of Check No. 55, dated
November 19, 2014 was in fact made payable to Respondent, for a total amount of
$7,850.60.
The Client Ledger Card for B. Jackson reflected that Respondent’s fee for
representation was $10,000.00 and that the client had outstanding medical bills for
$7,503.60. The Disbursement Sheet for B. Jackson reflected, however, that the fee for
representation was $12,870.00. The Disbursement Sheet also reflected that B. Jackson’s
medical expenses totaled $8,464.00. The Third Check Register further showed that on
December 7, 2014, Respondent wrote a check with an unknown number. The check
purported to be on behalf of “B. Jack/Jones to M. Moody for fees ($500.00)/ S. Jones
9
($550.00) to (W.E.) $1,050.00.” Respondent’s bank records however do not reflect a check
dated December 7, 2014 paid to Respondent. The Third Check Register also contained an
inaccurate entry concerning Check No. 55.
B. The Hearing Judge’s Conclusions of Law
Based on the above findings of fact, the hearing judge found, by clear and
convincing evidence, that Respondent violated the following provisions of MLRPC: 1.15
(Safekeeping Property), 8.1 (Bar Admission and Disciplinary Matters), 8.4 (Professional
Misconduct). The hearing judge also determined that Respondent violated Maryland Rules
16-606.1 (Attorney Account Record-Keeping), 16-607 (Commingling Funds), and 16-609
(Prohibited Transactions).
MLRPC 1.15: Safekeeping Property
MLRPC 1.15(a) provides that:
A lawyer shall hold property of clients or third persons that is in a
lawyer’s possession in connection with a representation separate from the
lawyer's own property. Funds shall be kept in a separate account maintained
pursuant to Title 16, Chapter 600 of the Maryland Rules, and records shall
be created and maintained in accordance with the Rules in that Chapter.
Other property shall be identified specifically as such and appropriately
safeguarded, and records of its receipt and distribution shall be created and
maintained. Complete records of the account funds and of other property
shall be kept by the lawyer and shall be preserved for a period of at least five
years after the date the record was created.
The hearing judge noted that in Attorney Grievance Commission of Maryland v.
Hamilton, we explained that MLRPC l. l 5(a) requires an attorney to keep the property of
clients separate from the lawyer’s own property. 444 Md. 163, 188, 118 A.3d 958, at 972
(2015). Additionally, in Attorney Grievance Commission of Maryland v. Zuckerman, we
10
found that the respondent violated MLRPC 1.15(a) when he failed to keep client funds in
a separate account and concluded that even an unintended violation of MLRPC 1.15
constitutes a violation of the attorney’s duties under the rule. 386 Md. 341, 359, 872 A.2d
693, at 704 (2005).
The hearing judge concluded that Respondent violated MLRPC 1.15(a) by
continuously failing to maintain an accurate accounting of client funds. The hearing judge
also determined that Respondent’s actions illustrated a pattern of negligent and deceitful
accounting practices, laden with gross inconsistencies between Respondent’s Check
Register and copies of checks, client ledgers, and bank records. The hearing judge also
noted that, on multiple occasions, Respondent indicated in his Check Register that a check
was payable to a medical provider or third party when, in fact, the check was payable to
himself. The hearing judge further observed that there were several instances where the
fee that was indicated in the Client’s Ledger Card or Disbursement Sheet differed from
what Respondent actually disbursed to himself.
MLRPC 8.1: Bar Admission and Disciplinary Matters
MLRPC 8.1 provides that:
An applicant for admission or reinstatement to the bar, or a lawyer in
connection with a bar admission application or in connection with a
disciplinary matter, shall not:
(a) knowingly make a false statement of material fact; or
(b) fail to disclose a fact necessary to correct a misapprehension
known by the person to have arisen in the matter, or knowingly
fail to respond to a lawful demand for information from an
admissions or disciplinary authority, except that this Rule does not
require disclosure of information otherwise protected by Rule 1.6.
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The hearing judge concluded that throughout Bar Counsel’s investigation,
Respondent provided three separate check registers, each containing contradictory
information. The hearing judge also noted that Respondent’s repeated failure to respond
to discovery permitted the court to conclude that Respondent had reviewed each of the
check registers for accuracy. Respondent did not offer any mitigating evidence regarding
why he supplied Bar Counsel with erroneous and conflicting check registers and failed to
appear for any proceeding regarding this matter. Accordingly, the hearing judge concluded
that Respondent violated Rule 8.1(a) by knowingly making a false statement to Bar
Counsel in connection with a disciplinary matter. It is important to note at this point that
the hearing judge acknowledged that Bar Counsel voluntarily withdrew a charge against
Respondent for violating Rule 8.1(b).
MLRPC 8.4: Professional Misconduct
MLRPC 8.4 states:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of
Professional Conduct, knowingly assist or induce another to do so, or do
so through the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice;
The hearing judge stated that any violation of the MLRPC constituted a violation of
MLRPC 8.4(a). See generally Attorney Grievance Commission v. Landeo, 446 Md. 294,
132 A.3d 196, (2016). The hearing judge concluded that because it found that Respondent
has violated MLRPC 1.15(a) and MLRPC 8.4(c)-(d), Respondent violated 8.4 (a). The
12
hearing judge acknowledged that Bar Counsel voluntarily withdrew a charge that
Respondent violated 8.4(b).
The hearing judge further concluded that Respondent violated subsection (c) by
submitting false client ledgers and settlement sheets to Bar Counsel, which the hearing
judge determined was conduct involving dishonesty, fraud, deceit, or misrepresentation.
The hearing judge also found that Respondent wrote a check to his landlord, presumably
for a rental payment, and inserted the letters “M.D.” to make the check appear to be issued
to a physician for his client’s treatment. The hearing judge concluded that Respondent’s
conduct was intentionally deceitful and dishonest, not merely negligent. See Attorney
Grievance Commission of Maryland v. Mahone, 451 Md. 25, 43, 150 A.3d 870, 882 (2016),
(discussing the distinctions between negligent and fraudulent handling of attorney trust
accounts and why mere negligence does not constitute a violation of Rule 8.4(c)).
The hearing judge noted that an attorney commits professional misconduct in
violation of 8.4(d) when the conduct at issue is likely to impair public confidence in the
profession, affect the image of the legal profession, and engender disrespect for the court.
See Attorney Grievance Commission of Maryland v. Childress, 360 Md. 373, 381-82, 758
A.2d 117, 121 (2000). The hearing judge also asserted that in Mahone, we held that an
attorney who violated MLRPC 1.1, 8.1(b), 8.4(a) and (d) and Rules 16-606.1, 16-607, 16-
609 and Business Occupations & Professions §10-306 by failing to properly use and
maintain records for his attorney trust account, thereby violated Rule 8.4(d). 451 Md. at
43, 150 A.3d at 882. The Mahone Court held that such conduct was prejudicial to the
13
administration of justice because it harmed the reputation of the legal profession. Similarly
here, the hearing judge concluded that Respondent’s conduct harmed the reputation of the
legal profession and, therefore, his haphazard and deceitful accounting practices, coupled
with his knowing misrepresentations to Bar Counsel, constituted a violation of MLRPC
8.4(d).
Md. Rule 16-601.: Attorney Trust Account Record-Keeping
Md. Rule 16-606.1 provided that:
(a) Creation of Records. The following records shall be created and
maintained for the receipt and disbursement of funds of clients or of third
persons:
(1) Attorney Trust Account Identification. An identification of all
attorney trust accounts maintained, including the name of the
financial institution, account number, account name, date the
account was opened, date the account was closed, and an
agreement with the financial institution establishing each account
and its interest-bearing nature.
(2) Deposits and Disbursements. A record for each account that
chronologically shows all deposits and disbursements, as follows:
(A) for each deposit, a record made at or near the time of the
deposit that shows (i) the date of the deposit, (ii) the
amount, (iii) the identity of the client or third person for
whom the funds were deposited, and (iv) the purpose of
the deposit;
(B) for each disbursement, including a disbursement made by
electronic transfer, a record made at or near the time of
disbursement that shows (i) the date of the disbursement,
(ii) the amount, (iii) the payee, (iv) the identity of the
client or third person for whom the disbursement was
made (if not the payee), and (v) the purpose of the
disbursement;
(C) for each disbursement made by electronic transfer, a
written memorandum authorizing the transaction and
identifying the attorney responsible for the transaction.
* * *
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(3) Client Matter Records. A record for each client matter in which
the attorney receives funds in trust, as follows:
(A) for each attorney trust account transaction, a record that
shows (i) the date of the deposit or disbursement; (ii) the
amount of the deposit or disbursement; (iii) the purpose
for which the funds are intended; (iv) for a disbursement,
the payee and the check number or other payment
identification; and (v) the balance of funds remaining in
the account in connection with the matter; and
(B) an identification of the person to whom the unused
portion of a fee or expense deposit is to be returned
whenever it is to be returned to a person other than the
client.
(4) Record of Funds of the Attorney. A record that identifies the funds
of the attorney held in each attorney trust account as permitted by
Rule 16-607 b.
(b) Monthly Reconciliation. An attorney shall cause to be created a
monthly reconciliation of all attorney trust account records, client matter
records, records of funds of the attorney held in an attorney trust account
as permitted by Rule 16-607 b, and the adjusted month-end financial
institution statement balance. The adjusted month-end financial
institution statement balance is computed by adding subsequent deposits
to and subtracting subsequent disbursements from the financial
institution’s month-end statement balance.
(c) Electronic Records. Whenever the records required by this Rule are
created or maintained using electronic means, there must be an ability to
print a paper copy of the records upon a reasonable request to do so.
(d) Records to Be Maintained. Financial institution month-end statements,
any canceled checks or copies of canceled checks provided with a
financial institution month-end statement, duplicate deposit slips or
deposit receipts generated by the financial institution, and records created
in accordance with section (a) of this Rule shall be maintained for a period
of at least five years after the date the record was created.
The hearing judge concluded that Respondent failed to maintain his records in
accordance with Rule 16-606.1. The hearing judge noted that Respondent failed to create
for each disbursement an accurate record that was made at or near the time of disbursement
that showed: “(i) the date of disbursement; (ii) the amount; (iii) the payee; (iv) the identity
15
of the client or third person for whom the disbursement was made (if not the payee); and
(v) the purpose of the disbursement.” See Md. Rule 16- 606.1(a)(2)(B).
The hearing judge also concluded that Respondent failed to create an account record
for each client matter connected to funds in the attorney trust account. The hearing judge
noted that for each attorney trust account transaction referenced, supra, Respondent failed
to accurately maintain a record showing: “(i) the date of the deposit or disbursement, (ii)
the amount of the deposit or disbursement, (iii) the purpose for which the funds are
intended, (iv) for a disbursement, the payee and the check number or other payment
identification, and (v) the balance of funds remaining in the account in connection with the
matter,” and “an identification of the person to whom the unused portion of a fee or expense
deposit is to be returned whenever it is to be returned to a person other than the client.” See
Md. Rule 16- 606.1(a)(3).
Md. Rule 16-607: Commingling of Funds
Md. Rule 16-607 provided that:
(a) General Prohibition. An attorney or law firm may deposit in an attorney
trust account only those funds required to be deposited in that account by
Rule 16-604 or permitted to be so deposited by section b. of this Rule.
(b) Exceptions.
(1) An attorney or law firm shall either (A) deposit into an attorney
trust account funds to pay any fees, service charges, or minimum
balance required by the financial institution to open or maintain
the account, including those fees that cannot be charged against
interest due to the Maryland Legal Services Corporation Fund
pursuant to Rule 16-610(b)(1)(D), or (B) enter into an agreement
with the financial institution to have any fees or charges deducted
from an operating account maintained by the attorney or law firm.
The attorney or law firm may deposit into an attorney trust
account any funds expected to be advanced on behalf of a client
and expected to be reimbursed to the attorney by the client.
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(2) An attorney or law firm may deposit into an attorney trust account
funds belonging in part to a client and in part presently or
potentially to the attorney or law firm. The portion belonging to
the attorney or law firm shall be withdrawn promptly when the
attorney or law firm becomes entitled to the funds, but any portion
disputed by the client shall remain in the account until the dispute
is resolved.
(3) Funds of a client or beneficial owner may be pooled and
commingled in an attorney trust account with the funds held for
other clients or beneficial owners.
The hearing judge concluded that Respondent had failed to maintain his funds and
those of his clients’ in accordance with Md. Rule 16-607. The hearing judge noted that
Respondent violated the Rule when he commingled his personal funds with client funds.
See Mahone, 451 Md. at 43, 150 A.3d at 882. The hearing judge also determined that
Respondent’s persistent accounting errors resulted in him withdrawing less than that which
he claimed he earned on his client disbursement sheets. The hearing judge further
concluded that Respondent did not promptly withdraw the portion of the clients’ funds that
belonged to him or his law firm, and instead, allowed the money to remain in the account.
The hearing judge also found that Respondent issued a check out of his trust account to
Will Mcines, MD, under the pretext that it was related to a client’s medical expense when,
in reality, it was actually to pay Respondent’s landlord.
Md. Rule 16-609 Prohibited Transactions
Md. Rule 16-609 stated:
(a) Generally. An attorney or law firm may not borrow or pledge any funds
required by the Rules in this Chapter to be deposited in an attorney trust
account, obtain any remuneration from the financial institution for
depositing any funds in the account, or use any funds for any
unauthorized purpose.
(b) No Cash Disbursements. An instrument drawn on an attorney trust
account may not be drawn payable to cash or to bearer, and no cash
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withdrawal may be made from an automated teller machine or by any
other method. All disbursements from an attorney trust account shall be
made by check or electronic transfer.
(c) Negative Balance Prohibited. No funds from an attorney trust account
shall be disbursed if the disbursement would create a negative balance
with regard to an individual client matter or all client matters in the
aggregate.
The hearing judge noted that when an attorney uses "trust account funds for an
unauthorized purpose . . . and create[s] negative balances" he violates Md. Rule 16-409;
see Mahone, 451 Md. at 43 150 A.3d at 882. The hearing judge concluded that Respondent
violated Md. Rule 16-409(a) and (c) by using funds from his attorney trust account to pay
his landlord and by creating a negative balance in his trust account.
C. The hearing judge’s finding of aggravating factors
The hearing judge noted that in Attorney Grievance Commission of Maryland v.
Shuler, we held that, in determining an appropriate sanction for a lawyer’s misconduct, we
consider: “(1) the Rules that the lawyer violated, (2) the lawyer’s mental state, (3) the injury
that the lawyer’s misconduct caused or could have caused, and (4) aggravating factors
and/or mitigating factors.” 443 Md. 494, 506, 117 A.3d 38, at 46 (2015), (citation omitted).
We also noted in Shuler that “[a]ggravating factors include: (1) prior attorney discipline,
(2) a dishonest or selfish motive, (3) a pattern of misconduct, (4) multiple violations of the
Rules of Professional Conduct, (5) bad faith obstruction of the attorney discipline
proceeding by intentionally failing to comply with the Maryland Rules or orders of this
Court or the hearing judge, (6) submission of false evidence, false statements, or other
deceptive practices during the attorney discipline proceeding, (7) a refusal to acknowledge
the misconduct’s wrongful nature, (8) the victim’s vulnerability, (9) substantial experience
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in the practice of law, (10) indifference to making restitution or rectifying the misconduct’s
consequences, (11) illegal conduct, including that involving the use of controlled
substances, and (12) likelihood of repetition of the misconduct.” Id. at 506-07, 117 A.3d at
46. The hearing judge concluded that in the case at bar, the following aggravating factors
are present: (1), (3), (4), (5), (6), (7), (9), and (12).
Addressing the first aggravating factor, the hearing judge noted that Respondent
received a 90-day suspension in 2004. The hearing judge noted multiple violations of the
MLRPC, stemming from Respondent’s: failure to attend a hearing in a child support case;
failure to file a post-conviction petition; failure to obtain service of process in a divorce
case; and failure to timely file a claim for uninsured motorist benefits. Respondent also
received a Commission Reprimand in December 2014 for his failure to maintain adequate
records of his attorney trust account, resulting in an overdraft. In that case, Respondent
commingled his funds with those of his clients and third persons as well as failed to
promptly withdraw earned fees from his attorney trust account, thereby commingling his
funds with those of his client and third persons.
Regarding the third factor, the hearing judge found that it applied because in four
separate cases improper checks were written. Specifically, Respondent wrote checks out
of his attorney trust account to either his landlord or himself, but recorded them in his client
ledger or trust account ledger as checks for client medical expenses or attorney’s fees. The
hearing judge noted that this misconduct occurred over several years creating a pattern.
The hearing judge also determined that the fourth aggravating factor applied because
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Respondent has violated multiple rules of professional conduct and notes that in this
proceeding alone Respondent violated Rules 1.l 5(a), 8.l(a), 8.4(a), (c), and (d), as well as
Md. Rules 16-606.1, 16-607, and 16-609.
Additionally, the hearing judge also found that the fifth aggravating factor applied
because Bar Counsel was forced to serve Respondent pursuant to Rule 19-724(b) by
serving the CPF after unsuccessfully attempting to serve Respondent. Subsequently, CPF
mailed Respondent the transmittal order, summons, and Petition at all three addresses on
the record for Respondent. On January 5, 2017, Bar Counsel served discovery on
Respondent by mailing the discovery to all three addresses, but Respondent never
responded or asked for an extension of time to respond. The hearing judge noted that
Respondent failed to file an Answer and in response, granted Bar Counsel’s Motion for an
Order of Default, and scheduled a hearing on February 9, 2017. The hearing judge also
found that Respondent did not move to vacate the order within thirty days nor appear for
the hearing. Instead, Respondent waited for the date of the hearing and filed a Motion to
Vacate Judgment claiming that Bar Counsel had not served him with the Petition. In
response to Respondent’s motion, Bar Counsel filed an Opposition that described their
efforts to serve Respondent and demonstrated that Respondent had been mailed three
copies of the Petition.
Addressing the sixth aggravating factor, the hearing judge determined that
Respondent provided multiple versions of his attorney trust account check register and
found that each contained contradictory information. The hearing judge concluded that
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Respondent’s inconsistent disclosures were intended to deceive Bar Counsel throughout
their investigation. The hearing judge also found that this view was supported by the fact
that Respondent refused to acknowledge the wrongful nature of his conduct, thereby
implicating aggravating factor seven.
The hearing judge also found that Respondent has been a member of the Maryland
Bar for approximately twenty years, which equated to having substantial experience in
the practice of law, thereby implicating aggravating factor nine (9). See Attorney
Grievance Commission v. Mininsohn, 380 Md. 536, 576, 846 A.2d 353, at 376 (2004)
(noting that an attorney with “almost twenty-five years’ experience at the bar” has
“substantial experience in the practice of law.”).
Finally, addressing factor twelve, the hearing judge determined that there was a
substantial likelihood that Respondent would repeat this type of misconduct. The hearing
judge found that after receiving a Commission Reprimand in 2014 for violations of Rule
1.18(a) and former Md. Rules 16-606.1 and 16-607, Respondent continued to violate these
Rules and attempted to deceive Bar Counsel by submitting false records. In light of the
similarities between Respondent’s 2014 misconduct, subsequent reprimand, and the
conduct at issue here, the hearing judge determined there was a substantial likelihood of
future violations to the MLRPC. The hearing judge concluded that no mitigating factors
existed in this case.
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II.
Standard of Review
In proceedings involving attorney discipline, “this Court has original and complete
jurisdiction and conducts an independent review of the record.” Attorney Grievance
Commission v. Whitehead, 405 Md. 240, 253, 950 A.2d 798, 806 (2008). This Court has
said that “[i]n our review of the record, the hearing judge’s findings of fact generally will
be accepted unless they are clearly erroneous” and “[a]s to the hearing judge’s conclusions
of law, such as whether provisions of the MRPC were violated, our consideration is
essentially de novo.” Id. Accordingly, we will review the legal conclusions de novo while
applying a clearly erroneous standard to the factual findings.
III.
Discussion
As a preliminary matter, it is important to note that no exceptions were filed in this
case. As such, we proceed to a review the hearing judge’s findings of fact and conclusions
of law to verify correctness. After a de novo review, we agree with the hearing judge that
the Respondent violated MLRPC 1.15, 8.1, 8.4(d), 16-606.1, and Maryland Rules 16-607,
and 16-609. Here, Petitioner requested disbarment stating, “the dishonest and deceitful
conduct involved in this case, in the absence of any compelling extenuating circumstances
warrants the ultimate sanction of disbarment.” We agree.
The appropriate sanction for violations of the Rules of Professional Conduct
“depends on the facts and circumstances of each case, including consideration of any
mitigating factors.” Attorney Grievance Commission v. Goodman, 381 Md. 480, 496, 850
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A.2d 1157, 1167 (2004). Additionally, this Court seeks “to protect the public, to deter
other lawyers from engaging in violations of the Maryland Rules of Professional Conduct,
and to maintain the integrity of the legal Profession.” Id. at 496, 850 A.2d at 1167. Further,
“dishonest conduct is closely entwined with the most important matters of basic character
to such a degree as to make intentional dishonest conduct by a lawyer almost beyond
excuse.” Attorney Grievance Commission v. Vanderlinde, 364 Md. 376, 418, 773 A.2d
463, 488 (2001).
Here, the hearing judge found that the Respondent violated several Rules of
Professional Conduct and observed that the Respondent’s conduct illustrated a pattern of
negligent and deceitful accounting practices, laden with gross inconsistencies between
Respondent’s Check Register, copies of checks, client ledgers, and bank records. The
Respondent intentionally violated MLRPC 8.4(c) by submitting false client ledgers and
settlement sheets as well as writing a check to his landlord while purporting it to be a
payment for medical services. Respondent had a history of professional misconduct
resulting in discipline. Specifically, Respondent consented to a Commission Reprimand
due to a failure to properly maintain adequate records in December of 2014.
The hearing judge determined that eight aggravating factors are present in this case
discussed supra. With regard to the likelihood of repetition of the misconduct, we find that
Respondent is likely to engage in similar conduct in the future. Specifically, the fact that
the same account has been involved in separate violations several years apart, indicates that
Respondent is likely to repeat this conduct if permitted to do so. Finally, since the
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Respondent’s prior suspension and reprimand were insufficient to deter the behavior that
led to the case at bar, coupled with Respondent’s dishonest and deceitful conduct, weighs
heavily against him.
For these reasons, we issued the September 12, 2017 per curiam order disbarring
Respondent and assessing costs against him.
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