Attorney Grievance v. Weiers ( 2014 )

Attorney Grievance Commission of Maryland v. Daun Robert Weiers, Misc. Docket AG No.
10, September Term, 2013, Opinion by Greene, J.
ATTORNEY DISCIPLINE – Attorney’s failure to remove earned fees from his trust account
for a period of one year, as well as his reluctant and incomplete cooperation with Bar
Counsel during the course of an investigation, constitute violations of MLRPC 1.15(a) and
8.1(b), as well as Maryland Rule 16-607, and warrants the sanction of reprimand.
Circuit Court for Prince George’s County
Case No. CAE13-13555
Argued: September 4, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 10
September Term, 2013
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
DAUN ROBERT WEIERS
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
___________________________________
Opinion by Greene, J.
___________________________________
Filed: October 22, 2014
The Attorney Grievance Commission of Maryland (“Petitioner”), acting pursuant to
Maryland Rule 16-751(a), filed a “Petition for Disciplinary or Remedial Action” against
Daun Robert Weiers (“Respondent” or “Weiers”) on April 15, 2013. Petitioner charged
Respondent–admitted to the Bar of this Court on December 14, 1973–with violations of
Maryland Lawyers’ Rules of Professional Conduct (MLRPC) 1.1 (Competence),1 1.15(a) and
(c) (Safekeeping Property),2 1.5(a) (Fees),3 8.1(b) (Bar Admission and Disciplinary Matters),4
1
Under MLRPC 1.1: “A lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.”
2
MLRPC 1.15, as relevant to this case, provides:
(a) 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.
****
(c) Unless the client gives informed consent, confirmed in writing, to a
different arrangement, a lawyer shall deposit legal fees and expenses that have
been paid in advance into a client trust account and may withdraw those funds
for the lawyer's own benefit only as fees are earned or expenses incurred.
3
Pursuant to MLRPC 1.5(a):
(a) A lawyer shall not make an agreement for, charge, or collect an
unreasonable fee or an unreasonable amount for expenses. The factors to be
considered in determining the reasonableness of a fee include the following:
(continued...)
and 8.4(d) (Misconduct),5 and Maryland Rules 16-606.1 (Attorney Trust Account Record-
3
(...continued)
(1) the time and labor required, the novelty and difficulty of the questions
involved, and the skill requisite to perform the legal service properly;
(2) the likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment of the lawyer;
(3) the fee customarily charged in the locality for similar legal services;
(4) the amount involved and the results obtained;
(5) the time limitations imposed by the client or by the circumstances;
(6) the nature and length of the professional relationship with the client;
(7) the experience, reputation, and ability of the lawyer or lawyers performing
the services; and
(8) whether the fee is fixed or contingent.
4
MLRPC 8.1 provides in pertinent part:
[A] lawyer . . . in connection with a disciplinary matter, shall not:
****
(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.
5
MLRPC 8.4 provides in pertinent part: “It is professional misconduct for a lawyer to: . .
. (d) engage in conduct that is prejudicial to the administration of justice[.]”
2
Keeping)6 and 16-607 (Commingling of Funds).7 The alleged violations stem from Mr.
6
Maryland Rule 16-606.1 provides:
(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.
(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
(continued...)
3
6
(...continued)
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.
7
Maryland Rule 16-607 provides:
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
(continued...)
4
Weiers’s (1) admitted failure to keep time records, (2) payment to himself from the
Crescendo Realty, LLC retainer without obtaining the consent of his client, Mr. Hulamm, (3)
typographical error on his trust ledger, (4) failure to withdraw the earned remainder of his
retainer within a reasonable amount of time, and (5) reluctant, begrudging cooperation with
Bar Counsel’s lawful requests during the course of his investigation.
I. Findings of Fact and Conclusions of Law
This Court referred the matter to Judge Cathy H. Serrette of the Circuit Court for
Prince George’s County for an evidentiary hearing and to issue findings of fact and
conclusions of law pursuant to Md. Rule 16-757. Following a hearing on September 17,
2013, Judge Serrette issued Findings of Fact and Conclusions of Law, in which she
determined that Mr. Weiers had violated MLRPC 1.15(a) and 8.1(b), as well as Maryland
7
(...continued)
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.
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.
5
Rule 16-607. In reaching this determination, Judge Serrette made the following findings:
Findings of Fact
Respondent attended Carnegie Mellon University for his undergraduate
studies and the University of Maryland School of Law to study law. He was
admitted to practice in Maryland in 1973 and maintains a sole practice in
Leonardtown, Maryland. In 2009, his main areas of practice included general
civil law, criminal law, and domestic relations. Currently, he is practicing on
a limited basis.
On or about January 7, 2009, Van Hulamm hired Respondent on behalf
of Crescendo Realty, LLC, Mr. Hulamm’s company, to provide legal services
related to the removal of a fence on neighboring property, which blocked
access to a parking lot used by businesses renting space from Crescendo
Realty, LLC. Respondent and Mr. Hulamm orally agreed that Crescendo
Realty, LLC, would pay a non-refundable retainer fee of $1,000.00, with
excess work to be billed at the rate of $150.00 per hour, plus $30.00 per letter
and telephone call. Respondent immediately deposited the retainer fee into his
client trust account.
The level of communication between Respondent and the client during
the course of the representation was disputed. Mr. Hulamm averred that he did
not hear from or again meet with Respondent until 2010, when he alerted
Respondent to the fact that the fence had been removed by a third party.
Respondent testified that Mr. Hulamm frequently called and visited the office
throughout 2009, sometimes casually and sometimes to discuss legal matters.
Respondent also produced a September 8, 2009 e-mail from Mr. Hulamm
seeking legal advice regarding a complaint that Mr. Hulamm had filed with the
Circuit Court. Respondent’s recitation of the contact between Mr. Hulamm
and Respondent is credited.
On or about January 27, 2009, Respondent wrote a check to himself for
$300.00 from his attorney trust account. The memo of the check read: “Earned
Fee–Tighe/Crescendo.” On or about March 13, 2009, Respondent wrote a
check to himself for $300.00 from the trust account, with the check memo
reading: “Earned Fee–Crescendo/Perrone.” On March 18, 2010, Respondent
withdrew $700.00 from the trust account. The check memo read:
“Fee–Crescendo Realty.”
Petitioner mistakenly alleged that Respondent paid himself $1,300.00
when he had only deposited $1,000.00 on behalf of Hulamm/Crescendo
Realty, LLC. Petitioner’s confusion arose from the fact that, as indicated on
the memos, the January 27, 2009, and March 13, 2009 checks covered
6
payments from more than one client.
Pursuant to the retainer agreement, Respondent researched various
options for removal of the fence obstructing access to Hulamm/Crescendo
Realty’s parking lot. None of the options researched proved favorable to Mr.
Hulamm’s case.
In early 2010, the fence was removed. Mr. Hulamm advised
Respondent and asked for a refund of the retainer. On November 17 and 21,
2011, Mr. Hulamm left notes for Respondent seeking a refund. Mr. Hulamm
next reached out to Mr. Slade, a mutual friend who had introduced Mr.
Hulamm to Respondent. Mr. Slade spoke with Respondent, who agreed to
return $500.00 of the retainer fee, as an alternative to “having [Mr. Hulamm]
pestering me and bad mouthing me all over town.” Mr. Hulamm sent an email
to Respondent on or about January 11, 2012, confirming the agreement. He
added that should the $500.00 not be received by January 17, 2012, Mr.
Hulamm would expect a full $1,000.00 refund. Mr. Hulamm did not receive
the money by January 17, 2012, and he filed a grievance with the Attorney
Grievance Commission the next day. On January 22, 2012, Mr. Hulamm
received a $500.00 check from Respondent.
On January 27, 2012, the Commission sent Respondent a letter
enclosing Mr. Hulamm’s complaint and requesting a response within fifteen
(15) days. A follow-up letter was sent on February 24, 2012. Respondent
responded on March 8, 2012. On April 12, 2012, the Commission wrote a
letter seeking a copy of the retainer agreement with Mr. Hulamm and the
billing invoice. A follow-up letter was sent on May 3, 2012. Respondent
answered on May 11, 2012, explaining that he did not have a written retainer
agreement or time records. On June 12, 2012, the Commission wrote a letter
to Respondent asking for documentation that the client’s fee had been
maintained in trust until earned. A follow-up letter was sent July 6, 2012. On
July 25, 2012, Respondent replied that he was unaware of the specific
misconduct for which he was being investigated. The Commission sent a letter
on September 4, 2012, suggesting that Respondent may be in violation of
MLRPC 1.15(a) and (c), and Maryland Rule 16-606.1. Respondent replied on
September 10, 2012.
On October 5, 2012, the Commission’s investigator, Edwin Karr, Jr.,
attempted to call Respondent, but the number had been temporarily
disconnected. Mr. Karr checked with the Maryland State Bar directory and an
internal database, both of which listed the number he had called. On October
15, 2012, Mr. Karr visited Respondent’s office and left his business card.
Respondent called him later that day, but refused to set up an interview with
the investigator without first being advised of the charges against him. The
7
Petition for Disciplinary of Remedial Action was filed April 15, 2013.
Judge Serrette further entered conclusions of law, determining that Mr. Weiers had
violated MLRPC 1.15(a) and 8.1(b), and Md. Rule 16-607. She explained:
CONCLUSIONS OF LAW
****
M ARYLAND R ULES OF P ROFESSIONAL C ONDUCT 1.15(A) AND (C).
S AFEKEEPING P ROPERTY
****
Respondent admitted that he did not keep time records, did not bill Mr.
Hulamm, and did not advise Mr. Hulamm when he would be paying himself
from the “nonrefundable” retainer for services rendered. Additionally,
Respondent admitted that he did not take the $700.00 payment for some time
after he had completed the work for which he had been retained.
Respondent credibly testified that the retainer had “probably” been
exhausted by March, 2009, but that Mr. Hulamm continued to come to his
office on a variety of matters. Only when Respondent had not heard from Mr.
Hulamm for about two months and determined that the attorney-client
privilege had ended did Respondent withdraw the balance of the retainer on
March 18, 2010.
Respondent performed the services for which he was retained, earned
the fee taken, and communicated with Mr. Hulamm on a somewhat regular
basis about the action at issue in this case as well as other matters. Further, he
maintained the requisite trust account records, with only the above-noted four-
day mistake having been established.
To some extent, Respondent appeared to be the victim of the old adage,
“no good deeds go unpunished.” He repeatedly provided free legal advice to
Mr. Hulamm, who in turn appeared to believe that Respondent should provide
him free services. Respondent was not faultless, however. As in Attorney
Grievance Commission v. Tun, 428 Md. 235, 51 A.3d 565 (2012), in which
inadequate time records led to questions about entitlement to compensation
which counsel had earned, Respondent Weiers’[s] failure to keep time sheets
and to bill accordingly led to Mr. Hulamm’s insistence that he was due a
refund although Respondent had earned his fee. Further, Respondent’s failure
to timely pay himself for services rendered to Crescendo Realty, LLC, resulted
8
in the commingling of earned and unearned funds in Respondent’s trust
account for approximately one year. See Attorney Grievance Commission v.
Zuckerman, 386 Md. 341, 370-73, 872 A.2d 693 (2005) (in which counsel
failed to timely withdraw funds to which he was entitled).
Accordingly, while a violation of Rule 1.15(c) was not established,
Petitioner established by clear and convincing evidence that Respondent
violated Rule 1.15(a) by failure to timely withdraw earned fees.
****
M ARYLAND R ULES OF P ROFESSIONAL C ONDUCT 8.1(B). B AR A DMISSION
AND D ISCIPLINARY M ATTERS
****
Petitioner argued that Respondent violated Rule 8.1(b) by: 1) failing to
timely respond to letters from the Attorney Grievance Commission; and 2)
refusing to meet with the Commission’s investigator. The Commission cited
two cases in support [of] the charge: Attorney Grievance Comm’n v. Oswinkle,
364 Md. 182, 772 A.2d 267 (2001), and Attorney Grievance Comm’n v.
Nelson, 425 Md. 344, 40 A.3d 1039 (2012). In Oswinkle, Bar Counsel sent six
letters and attempted three telephone calls to the attorney respondent between
August 1998 and April 1999. 364 Md. at 185-86, 772 A.2d 269. Said
respondent responded for the first time in late April, 1999 and represented that
he would file a response the following week. 364 Md. at 186, 772 A.2d 269.
He did not. Id. Respondent’s conduct was held to be a violation of Rule
8.1(b), which “places an obligation on an attorney to respond to a lawful
demand from Bar Counsel.” 364 Md. at 189, 772 A.2d 270.
In Van Nelson, the respondent attorney, who had failed to respond to
two letters from the Attorney Grievance Commission, refused to meet with the
Bar Counsel investigator, failed to participate in the judicial hearing and whose
whereabouts where unknown, was likewise found to have violated Rule 8.1(b)
for knowingly failing to respond to a lawful demand for information from a
disciplinary authority. 425 Md. at 353, 362, 40 A.3d 1044, 1049.
The instant case is unlike those cited by Petitioner. Respondent
grudgingly responded to Petitioner, answering their questions, while
contending throughout that he had not been informed of how he was alleged
to have violated the Rules. On three occasions, Respondent failed to initially
respond to inquiries, but in each case, he responded quickly to follow-up
letters. The longest delay between an initial inquiry and a response was 43
days. Respondent’s behavior was dilatory, rather than obstructionist.
9
Respondent refused to meet with the investigator, but ultimately responded to
Petitioner’s letters, appeared at deposition, and actively participated in this
action.
Nonetheless, “Rule 8.1 places an obligation on an attorney to respond
to a lawful demand from Bar Counsel. The rule does not distinguish between
attorneys who fail to respond to lawful demands due to dilatoriness, on the one
hand, and those on the other hand, who intentionally fail to respond.
Moreover, the ultimate resolution of the complaint does not affect the
determination of whether the rule has been violated. An attorney’s obligation
to respond to lawful demands of Bar Counsel applies when the attorney upon
whom the demand is made is the focus of the investigation or when the
investigation relates to the conduct of another attorney.” Oswinkle, 364 Md.
at 189, 772 A.2d at 270-71.
Respondent cannot be said to have “failed” to respond to the Attorney
Grievance Commission, but his failure to readily cooperate constituted a
violation of Rule 8.1(b).
****
Maryland Rules, Rule 16-607. Commingling of Funds
****
Rule 16-607(b)(2) provides, in pertinent part, that fees earned by
counsel “shall be withdrawn promptly when the attorney or law firm becomes
entitled to the funds.” As discussed above, Respondent waited approximately
one year to withdraw the $700.00 to which he was entitled as a result of legal
services provided for Hulamm/Crescendo Realty, LLC. Accordingly, he is in
violation of Rule 16-607.
As to Respondent’s alleged violations of MLRPC 1.1, 1.15(c), 1.5(a), 8.4(d), and Md.
Rule 16-606.1, the hearing judge determined that the charges were not established by clear
and convincing evidence.
II. Discussion
In attorney discipline proceedings, “this Court has original and complete jurisdiction
10
and conducts an independent review of the record . . . [T]he hearing judge’s findings of fact
generally will be accepted unless they are clearly erroneous.” Attorney Grievance Comm’n
v. Cherry-Mahoi, 388 Md. 124, 152, 879 A.2d 58, 76 (2005) (citations omitted). Pursuant
to Maryland Rule 16-759(b)(2)(A), “[i]f no exceptions are filed, the Court may treat the
findings of fact as established for the purpose of determining appropriate sanctions, if any.”
In other words, we deem the hearing judge’s findings of fact “correct if (1) they are not
clearly erroneous, or (2), at th[is] Court’s option, if neither party filed exceptions to them.”
Attorney Grievance Comm’n v. Kremer, 432 Md. 325, 334, 68 A.3d 862, 868 (2013)
(citations omitted). Neither Petitioner nor Respondent filed exceptions to the hearing judge’s
findings of fact and conclusions of law.8 Accordingly, as discussed supra, this Court accepts
Judge Serrette’s findings of fact as established for the purpose of determining the appropriate
sanction.
The hearing judge’s proposed conclusions of law are reviewed for legal correctness.
Attorney Grievance Comm’n v. West, 378 Md. 395, 410, 836 A.2d 588, 596 (2003). “In
other words, the ultimate determination . . . as to an attorney’s alleged misconduct is reserved
for this Court.” Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 552, 16 A.3d 181,
192 (2011) (citation omitted). Having reviewed Judge Serrette’s conclusions of law, we
8
Indeed, Petitioner, despite appearing for oral argument, failed to file anything with this
Court concerning the instant matter.
11
agree that Respondent violated MLRPC 1.15(a) and 8.1(b), as well as Md. Rule 16-607,
finding these conclusions of law supported by the factual record.
A. MLRPC 1.15(a) and Md. Rule 16-607
This Court has made clear that an attorney’s failure to withdraw earned fees from his
or her trust account in a timely manner results in an impermissible commingling of funds
violative of MLRPC 1.15(a) and Maryland Rule 16-607. See Attorney Grievance Comm’n
v. Thomas, 409 Md. 121, 150, 973 A.2d 185, 202 (2009) (holding that the attorney’s practice
of leaving unearned fees in his trust account for an indeterminate amount of time violated
both MLRPC 1.15(a) and Md. Rule 16-607); Attorney Grievance Comm’n v. Zuckerman, 386
Md. 341, 370-71, 872 A.2d 693, 710-11 (2005) (determining that the attorney violated both
Rule 1.15(a) and 16-607 by failing, on multiple occasions, to remove earned fees held in trust
for periods of one year or more); Attorney Grievance Comm’n v. Sliffman, 330 Md. 515, 525-
26, 625 A.2d 314, 319 (1993); cf. Attorney Grievance Comm’n v. Webster, 348 Md. 662,
677, 705 A.2d 1135, 1142 (1998) (“The purpose of the anti-commingling rules is to protect
client funds from the claims of creditors of the attorney.”). In the instant case, the hearing
judge found that Mr. Weiers withdrew the remaining balance of the Crescendo Realty, LLC
retainer in March of 2010, despite having admittedly completed the work for which he was
retained by March, 2009. This one-year delay resulted in a violation of MLRPC 1.15(a) and
Md. Rule 16-607.
12
B. MLRPC 8.1(b)
Respondent’s failure to cooperate readily and fully with Bar Counsel constitutes a
violation of MLRPC 8.1(b). As we have previously explained,
This Court has a long history of holding that an attorney violates Rule 8.1(b)
by failing to respond to letters from disciplinary authorities requesting
information. . . . The process of investigating complaints depends to a great
extent upon an individual attorney’s cooperation. Without that cooperation,
the [disciplinary authority] is deprived of information necessary to determine
whether the lawyer should continue to be certified to the public as fit.
Attorney Grievance Comm’n v. Fezell, 361 Md. 234, 249, 255, 760 A.2d 1108, 1116, 1119
(2000) (internal citations and quotations omitted); see also Attorney Grievance Comm’n v.
Jarosinski, 411 Md. 432, 454, 983 A.2d 477, 490 (2009) (holding that “Respondent’s failure
to respond timely to Bar Counsel’s inquiries and to cooperate fully . . . was a failure ‘to
respond to a lawful demand for information from [a] . . . disciplinary authority’ and thereby
violated M[L]RPC 8.1(b)”) (citations omitted).
In the instant case, the hearing judge found that Mr. Weiers “grudgingly responded
to Petitioner, answering their questions, while contending throughout that he had not been
informed of how he was alleged to have violated the Rules,” evincing “dilatory, rather than
obstructionist” behavior. Importantly, Respondent failed to respond initially to Bar
Counsel’s requests on several occasions–although ultimately responding to follow-up letters
sent by Petitioner–and refused to meet with an investigator. Despite ultimately participating
in this action, Mr. Weiers’s conduct is indicative of his antipathy towards Bar Counsel and
13
its responsibilities, as well as the legitimacy of the attorney disciplinary process. This is
reflected in Respondent’s inflammatory letters to Bar Counsel stating, for instance:
I do not know what misconduct you are investigating and I don’t think you do
either. Your latest demand appears to be a desperate attempt to justify the time
you have wasted so far. . . I don’t know if you are on a witch hunt, a personal
vendetta, a fishing expedition, or if you just don’t have enough to do, but I’ve
had my fill of you. So either file a complaint or get the hell off my back.9
This attitude was also reflected in Respondent’s statements during oral arguments, asserting
for instance that this entire situation was “Kafkaesque.”10 These statements reflect a
disparagement of and lack of regard for the Attorney Grievance Commission. In our review
of the record, we agree with the hearing judge that Mr. Weiers’s failure to cooperate readily
with Bar Counsel constitutes a MLRPC 8.1(b) violation.
Given Respondent’s position that Bar Counsel was somehow acting in “bad faith” by
making, according to Respondent, baseless and unlawful demands during the investigation,
9
In a follow-up letter, Respondent noted he was unaware “that Star Chamber had reached
the shores of Maryland” explaining, “[he] had naively thought it was one of those institutions
not suited for the conditions in the New World.” Respondent is referring to a British tribunal,
abolished in the mid-seventeenth century, notorious for its misuse by the English
government, which “has for centuries symbolized disregard of basic individual rights.”
Faretta v. California, 422 U.S. 806, 821, 95 S. Ct. 2525, 2534, 45 L. Ed. 2d 562, 574 (1975).
10
Respondent furthered that he “underst[ood] Joseph K.’s position a little better now,”
apparently drawing a comparison between his own experience and fictional protagonist
Joseph K.’s dealings with an opaque, corrupt legal system that charged him with a crime, the
nature of which he was not informed. See F RANZ K AFKA, T HE T RIAL. Unfortunately for Mr.
K., he was mysteriously slain prior to reaching any conclusion to his legal predicament. See
id.
14
and Respondent’s continued insistence that there was no violation of Rule 8.1(b), we caution
Respondent against future conduct of this nature and reaffirm the importance of Bar
Counsel’s role in regulating the legal profession. It is Bar Counsel’s duty to investigate
potential instances of misconduct and “[t]he Commission’s authority to make lawful
demands for information carries with it the authority to demand that attorneys furnish Bar
Counsel with the requested information timely and within a reasonable period of time.”
Attorney Grievance Comm'n v. Taylor, 405 Md. 697, 718, 955 A.2d 755, 767 (2008). There
is absolutely no indication that Bar Counsel’s requests for information were inappropriate
or unexplained. In making the requests for information, Bar Counsel supplied information
sufficient for Respondent to understand the reason for the requests and the nature of the
allegations against him. In any event, Bar Counsel was not required to explain how each
record sought–such as trust account records in Mr. Weiers’s case–related to the investigation
so long as Bar Counsel clearly indicated which records he was seeking.11 Attorney Grievance
Comm'n v. Khandpur, 421 Md. 1, 12, 25 A.3d 165, 172 (2011).
In response to Mr. Weiers’s objection at oral argument to the 8.1(b) violation, we
point out that Respondent need not have intentionally failed to respond to Bar Counsel’s
requests for information to have violated 8.1(b). Attorney Grievance Comm’n v. Oswinkle,
364 Md. 182, 189, 772 A.2d 267, 270-71 (2001) (noting that “[8.1(b)] does not distinguish
11
Mr. Weiers appeared to suggest that because Mr. Hulamm’s complaint did not reference
a trust account specifically, such information was off-limits to Bar Counsel’s investigation.
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between attorneys who fail to respond to lawful demands due to dilatoriness, on the one
hand, and those on the other hand, who intentionally fail to respond.”). More importantly,
here, the record establishes that Respondent intentionally failed to respond as he objected to
Bar Counsel’s authority to request information of him. Similarly, that Respondent eventually
responded to Bar Counsel’s follow-up letters does not excuse his conduct. Attorney
Grievance Comm’n v. Taylor, 405 Md. 697, 719, 955 A.2d 755, 768 (2008) (noting that
“[w]hile respondent may have ultimately ‘responded thoroughly and openly,’ an untimely
response does not excuse the failure to timely respond”).
III. Sanction
Having concluded that Mr. Weiers violated MLRPC 1.15(a), 8.1(b), and Md. Rule 16-
607, this Court must now determine the proper sanction. In determining the appropriate
sanction, this Court is
guided by our interest in protecting the public and the public’s
confidence in the legal profession. The purpose of [disciplinary]
proceedings is not to punish the lawyer, but should deter other lawyers
from engaging in similar conduct. The public is protected when we
impose sanctions that are commensurate with the nature and gravity of
the violations and the intent with which they were committed.
Attorney Grievance Comm’n v. Guida, 391 Md. 33, 61, 891 A.2d 1085, 1101 (2006) (quoting
Attorney Grievance Comm’n v. Davis, 375 Md. 131, 166-67, 825 A.2d 430, 451 (2003)). In
reaching the appropriate sanction we look to the facts of the case, considering any
aggravating or mitigating factors present. Attorney Grievance Comm’n v. Bell, 432 Md. 542,
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560, 69 A.3d 1040, 1050 (2013); Attorney Grievance Comm’n v. Post, 379 Md. 60, 71, 839
A.2d 718, 724 (2003). “The attorney’s prior grievance history, as well as facts in mitigation,
constitutes part of those facts and circumstances. We also look to our past cases involving
attorney discipline when imposing sanctions.” Attorney Grievance Comm’n v. Paul, 423 Md.
268, 284-85, 31 A.3d 512, 522 (2011) (internal citations omitted).
In light of the hearing judge’s findings, Petitioner recommends that Respondent be
reprimanded. In support of its position, Petitioner relies on several cases in which this Court
has issued reprimands for similar violations. See Attorney Grievance Comm’n v. Sapero, 400
Md. 461, 929 A.2d 483 (2007) (reprimand determined to be appropriate for violation of
MLRPC 1.5(c), 1.15(a), and 8.1(b)); Attorney Grievance Comm’n v. Oswinkle, 364 Md. 182,
772 A.2d 267 (2001) (reprimand deemed appropriate for violation of MLRPC 8.1(b));
Attorney Grievance Comm’n v. Bridges, 360 Md. 489, 759 A.2d 233 (2000) (reprimand
issued for violation of MLRPC 8.1(b) and (d)). In contrast, Respondent requests that this
Court “do nothing.”
We agree with Petitioner that the appropriate sanction is a reprimand. Attorney
Grievance Comm’n v. Lee, 390 Md. 517, 527, 890 A.2d 273, 279 (2006) (explaining that a
reprimand would serve the purpose of protecting the public and “serves as notice to the
respondent and other attorneys that this Court considers [the attorney’s MLRPC violations]
serious matters”); Attorney Grievance Comm’n v. Tolar, 357 Md. 569, 585, 745 A.2d 1045,
1054 (2000) (noting that a reprimand serves the purpose of protecting the public in the same
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manner as a short suspension); Attorney Grievance Comm’n v. Powell, 328 Md. 276, 302,
614 A.2d 102, 115 (1992) (explaining that “reprimand is appropriate for lawyers who fail to
follow their established procedures”) (citations omitted).
This Court finds Sapero instructive as to the appropriate sanction. In Sapero, we
reprimanded an attorney for violating MLRPC 1.5(c), 1.15(a), and 8.1(b). With respect to
Rule 1.15(a), this Court agreed with the hearing judge’s finding that Sapero had committed
an “unintentional violation,” explaining that “the failure to remove [] earned fees . . .
result[ed] from the Respondent’s poor record keeping . . . There is no evidence that the
Respondent’s failure . . . was intentional and motivated by ‘fraud, dishonesty, or deceit.’”
Sapero, 400 Md. at 473-74, 929 A.2d at 490 (citations omitted). Sapero’s 8.1(b) violation
arose from his inability to timely respond to Bar Counsel’s subpoena for trust account
records, and was caused by disorganized record keeping practices. Sapero, 400 Md. at 485-
86, 929 A.2d at 498. This Court noted that while “Respondent attempted to comply [with
Bar Counsel’s request] . . . [Sapero’s] disorganization d[id] not excuse his violation of Rule
8.1(b).” Sapero, 400 Md. at 486, 929 A.2d at 496. Reprimand was deemed appropriate in
Sapero because of the seriousness with which this Court views an attorney’s ethical
violations, notwithstanding the attorney’s motive or the effect of the violation.
There is no indication that Mr. Weiers’s failure to remove funds promptly in the
present case was motivated by a selfish desire. Nor is there any indication that his failure to
remove earned fees caused any detriment to his clients. Indeed, the hearing judge explained
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that this situation arose, in part, from Mr. Weiers’s “failure to keep time sheets and to bill
accordingly.” In other words, Respondent’s Rule 1.15(a) and 16-607 violations were not
willful, but rather the result of Mr. Weiers’s admitted inability to keep proper billing records
from the outset of his relation with Mr. Hulamm. Unlike in Sapero, however, Mr. Weiers
does not appear to fully appreciate the importance of his responsibilities under MLRPC
8.1(b). Although Respondent filed neither exceptions to the hearing judge’s findings, nor
sanction recommendations, during oral argument Respondent expended considerable time
contesting the merits of his 8.1(b) violation.
As in Sapero, Respondent’s conduct in this case caused no harm to his clients.
Respondent has no history of prior disciplinary offenses, and there is no evidence that his
conduct was motivated by a dishonest or selfish motive. Although Respondent failed to
timely comply with Bar Counsel’s requests for information, Respondent ultimately responded
to Bar Counsel and participated in the disciplinary process. Mindful of Respondent’s
troubling attitude toward Bar Counsel and the investigative process, and having cautioned
Respondent against such conduct in the future, we conclude that a reprimand is the
appropriate sanction in this case.
IT IS SO ORDERED; RESPONDENT SHALL
PAY ALL COSTS AS TAXED BY THE
CLERK OF THIS COURT, INCLUDING
THE COSTS OF ALL TRANSCRIPTS,
PURSUANT TO RULE 16-761, FOR WHICH
SUM JUDGMENT IS ENTERED IN FAVOR
O F T H E A TT O R N E Y G R IE V A N C E
COMMISSION AGAINST DAUN ROBERT
WEIERS.
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