Grebow v. Client Protection Fund ( 2022 )

Steven J. Grebow v. Client Protection Fund of the Bar of Maryland, No. 1392, Sept. Term
2020, Opinion by Leahy, J.
Client Protection Fund of the Bar of Maryland > Claims for Reimbursement
Although “[n]o claimant or other person has any right in the Fund, as beneficiary or
otherwise,” Md. Rule 19-609(b)(2), the Trustees may reimburse a “loss that was caused by
a defalcation of a lawyer if: (1) the lawyer caused the loss while acting for the person as
an attorney or a fiduciary; and (2) the person cannot recover the money under a bond,”
Maryland Code (1989, 2018 Repl. Vol.), Business Occupations and Professions Article, §
10-312(b) (emphasis added); see also Md. Rule 19-602(a) (“The purpose of the Client
Protection Fund is to maintain the integrity and protect the good name of the legal
profession by reimbursing . . . losses caused by defalcations by members of the Bar of
Maryland or out-of-state attorneys authorized to practice in this State . . . acting as either
attorneys or, except to the extent they are bonded, as fiduciaries.”).
Client Protection Fund of the Bar of Maryland > Claims for Reimbursement >
Fiduciary Capacity > Traditional and Customary in the Practice of Law
We hold that, under the terms of the Escrow Agreement, Mr. Sniffen was not acting in a
fiduciary capacity that is “traditional and customary in the practice of law in Maryland.”
Mr. Sniffen’s duties under the Escrow Agreement did not resemble the “intermediary
roles” occupied by the defalcating attorneys with regard to the compensable claims in
Advance Finance Co. v. The Trustees of Clients’ Security Trust Fund of the Bar of
Maryland, 337 Md. 195 (1995) and American Asset Finance, LLC. v. Trustees of the Client
Protection Fund of the Bar of Maryland, 216 Md. App. 306 (2014). In addition to bearing
no resemblance to the “intermediary capacities” in those cases, Mr. Sniffen’s escrow agent
duties were also unlike the example fiduciary capacities listed in Rule 19-602(b), all of
which involve a fiduciary interacting with third parties for the benefit of a client. Here,
Mr. Grebow seeks to recover funds that Mr. Sniffen was holding on behalf of a non-client,
Mr. Grebow, for the benefit of the same non-client, Mr. Grebow. The Escrow Agreement
specified that Mr. Grebow was “the sole beneficiary of the Escrow Account, and neither
McCloskey, the Company, nor their respective creditors, [were] acquiring any right, title
or interest in the Escrow Funds” and that Mr. Sniffen was not permitted to “withdraw or
disburse the Escrow Funds or any portion thereof or allow the withdrawal or disbursement
of the Escrow Funds or any portion thereof[.]”
Circuit Court for Baltimore County
Case No. C-03-CV-19-001133
REPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 1392
September Term, 2020
______________________________________
STEVEN J. GREBOW
v.
CLIENT PROTECTION FUND OF THE BAR
OF MARYLAND
______________________________________
Leahy,
Zic,
Sharer, J. Frederick
(Senior Judge, Specially Assigned),
JJ.
______________________________________
Opinion by Leahy, J.
______________________________________
Filed: June 29, 2022
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2022-06-29 11:47-04:00
Suzanne C. Johnson, Clerk
The Client Protection Fund of the Bar of Maryland (the “Fund”) was established in
1966 to “maintain the integrity and protect the good name of the legal profession.” Md.
Rule 19-602(a). The Fund reimburses members of the public for “losses caused by
defalcations” by attorneys acting in professional capacities or certain fiduciary capacities
that are “traditional and customary in the practice of law in Maryland.” Md. Rule 19-
602(a) and (b). In this appeal, Steven J. Grebow, appellant, challenges a final decision of
the Fund’s Trustees denying his claim for reimbursement.
Mr. Grebow’s claim arises out of an “Escrow Agreement” that he entered into with
the McCloskey Group (the “Company”) and its sole member, Mr. Brian McCloskey, on
December 11, 2009, during the “Great Recession.”1 The purpose of the Escrow Agreement
was to establish that the Company had cash reserves to secure a United States Department
of Housing and Urban Development (“HUD”) loan for a large development project. In
exchange for temporarily depositing several million dollars into the escrow account, Mr.
Grebow was to be paid a handsome fee of two million dollars. The Escrow Agreement
specified, however, that Mr. Grebow remained “the sole beneficiary of the escrow account”
and neither Mr. McCloskey, the Company, nor their creditors acquired “any right, title, or
1
After Lehman Brothers Holdings, Inc. filed for Bankruptcy on September 15,
2008, “the global credit markets went into the financial equivalent of cardiac arrest” and
“[c]ommercial lending came to a virtual halt.” In re Charter Commc’ns, 419 B.R. 221,
232 (Bankr. S.D.N.Y. 2009). This lending lag plagued the Great Recession period.
See Bureau of Consumer Fin. Prot., Data Point: Small Business Lending and the Great
Recession, at 32 (Jan. 2020) (“Small business lending was significantly affected by the
Great Recession); Patrick McCarney, Note, False Start: Carving a Niche Established Small
Business Participation in Regulation Crowdfunding Rules Designed for Startups, 51 Ind.
L. Rev. 277, 279 (2018) (“The traditional market for small business lending stagnated after
the Great Recession as big banks looked for more profitable loans.”).
interest in the Escrow Funds.”
The Escrow Account was managed by Mr. Kevin Sniffen, a Maryland attorney, who
was obligated to deliver the fee, together with Mr. Grebow’s entire deposit, to Mr. Grebow
on the date of the settlement of the HUD Loan. Mr. Sniffen never returned the escrow
funds to Mr. Grebow as he and Mr. McCloskey had embezzled the money in the
perpetration of a complex wire fraud scheme. For his role, Mr. Sniffen was convicted in
the United States District Court for the District of Maryland of conspiracy to commit wire
fraud, and he was subsequently disbarred by the Maryland Court of Appeals from the
practice of law in Maryland.
Mr. Grebow filed a claim for $3,115,000.00 with the Fund in February 2012.2 The
Trustees denied Mr. Grebow’s claim in April 2019. They determined, among other things,
that Mr. Sniffen, in his capacity as escrow agent, was not acting as an attorney or in a
fiduciary capacity that is traditional and customary in the practice of law in Maryland. Mr.
Grebow petitioned for judicial review in the Circuit Court for Baltimore County. That
court affirmed the decision of the Trustees. Mr. Grebow appeals and presents one question
for our review:
“Did the Fund err in determining pursuant to Maryland Rule 19-602(a) that
[Mr.] Sniffen was not ‘acting in a fiduciary capacity that is traditional and
customary in the practice of law in Maryland’ with respect to [Mr.] Grebow’s
misappropriated funds?”
We hold that Mr. Grebow is not eligible to recover from the Fund because, as the
2
Mr. Grebow amended his claim to $2,616,00.00 on January 30, 2019 to reflect that
he had recovered $499,000.00 through other avenues.
2
Trustees correctly decided, Mr. Grebow’s dealing with Mr. Sniffen did not rise to an
attorney-client relationship and Mr. Sniffen was not acting in a fiduciary capacity that is
“traditional and customary in the practice of law in Maryland.” Accordingly, we affirm.
BACKGROUND
A. The Escrow Agreement
In 2009, the Company was pursuing a loan to fund a large development project in
York, Pennsylvania. To bolster the odds of obtaining the loan, Mr. McCloskey, the
Company’s sole member, asked Mr. Grebow, of Grebow Investments, to temporarily
deposit money into an escrow account to supply the Company with “liquidity.” Ergo, the
Escrow Agreement was drafted by Mr. Grebow’s attorney and Mr. Kevin Sniffen, an
attorney affiliated with the Company. The parties signed the Escrow Agreement on
December 11, 2009, and represented in an opening “Explanatory Statement” that:
The Company is a single member limited liability company, the sole member
of which is McCloskey. The Company is contemplating entering into a loan
transaction (“The Loan”) as borrower with Eastern Mortgage Capital or
HUD (collectively the “Lender”). The Company has represented to Grebow
that the Loan is more likely to be consummated if Escrow Agent represents
to the Lender that he holds Two Million Two Hundred and Fifty Thousand
Dollars ($2,250,000,00) (“the Escrow Funds”) in an escrow account.
Grebow is willing to deposit the Escrow Funds with Escrow Agent to be held
and to remain in an escrow account established by Escrow Agent for the
purposes of this Agreement (“the Escrow Account”) on the following terms
and conditions.
The Escrow Agreement specified that the account was to be a “non-interest bearing
depository account at Wachovia Bank[,]” titled “Kevin Sniffen, Escrow Agent[,]” and was
to be opened using Mr. Sniffen’s employer identification number. It provided that,
simultaneously with Mr. Grebow’s deposit of $2,250,000.00 into the “Kevin Sniffen,
3
Escrow Agent” account, the Company was obligated to deposit a “fee” in the amount of
$500,000.00 into the account, “payable to Grebow in consideration for Grebow’s deposit
of the Escrow Funds in the Escrow Account.” Mr. Grebow earned this fee “immediately
upon [his] delivery of the Escrow Funds,” and, under section 2 (c) of the Escrow
Agreement, Mr. Sniffen was to deliver the fee, together with Mr. Grebow’s initial deposit,
to Mr. Grebow on “the date of the settlement of the HUD Loan, but not later than March
1, 2010 (the ‘Termination Date’).” In other words, on the “Termination Date,” Mr. Sniffen
was to send Mr. Grebow $2,750,000.00 “by wire transfer.”
Notwithstanding the Escrow Agreement’s provision that it was consummated
“solely for the purpose of satisfying the Company’s closing requirements of that certain
loan,” Section 1(e) of the Escrow Agreement explained that Mr. Grebow was “the sole
beneficiary of the escrow account” and neither Mr. McCloskey, the Company, nor their
creditors, acquired “any right, title, or interest in the Escrow Funds.” (Emphasis added).
Section 2(a) and (b) of the Escrow Agreement detailed Mr. Sniffen’s obligations as
Escrow Agent, including his duty to “retain and safeguard the Escrow Funds” and to
prohibit any third party, “other than the Lender or Grebow” from “obtaining possession of
or an interest in the Escrow Funds.” He was not permitted to withdraw money from the
escrow account, unless it was for Mr. Grebow’s benefit, without the “express joint written
consent of Grebow, the Company and McCloskey[.]”
To cover any losses resulting “from the acts or omissions of [Mr. Sniffen], his
employees[,] agents[,] and contractors,” the Escrow Agreement required that Mr. Sniffen
procure a fidelity bond which was “acceptable to Grebow in its sole discretion[.]” If the
4
fidelity bond was cancelled, Mr. Sniffen was required to “immediately return the Escrow
Funds to Grebow[.]”
Sections 3 and 4 of the Escrow Agreement contained numerous representations,
warranties, and covenants protecting Mr. Grebow’s funds. In Section 3, Mr. McCloskey
and his company agreed that they would not settle on the subject loan “unless there are
sufficient excess proceeds in the Loan to fund all escrows and interest reserves required by
the Lender[.]” Further, Mr. McCloskey warranted that the Company would close on the
loan only “upon the consent of Grebow.” For his part, Mr. Sniffen warranted that he was
“an attorney admitted to practice in the State of Maryland and [was] fully competent to
perform his duties pursuant to [the] Agreement.” He further warranted that any
representation he made to the “Lender [HUD] . . . regarding the Escrow Funds” would be
“truthful, lawful and not in the perpetuation of a fraudulent transaction.”
The Escrow Agreement, which was scheduled to terminate no later than March 1,
2010, was amended nine times to extend the Termination Date. During the course of the
nine amendments, Mr. Grebow made two additional deposits into the escrow account: the
first, in the amount of $1,300,000.00, was made on May 11, 2010; and the second, for
$290,000.00, was made on February 4, 2011.
In exchange for the additional deposits and extensions, Mr. McCloskey increased
Mr. Grebow’s fee to $2,000,000.00 under the Ninth Amendment. This final amendment
extended the Termination Date to April 15, 2011—just over sixteen months after the
original Agreement was signed. During the course of the escrow arrangement, Mr. Grebow
5
also received a total of $725,000.00 through various “Return from Escrow” payments,
leaving Mr. Grebow’s net deposit into the escrow account at $3,115,000.00.
B. The Criminal and Civil Fraud Cases
In August 2011, Mr. Grebow’s attorney received a copy of a civil complaint alleging
that Mr. McCloskey and Mr. Sniffen had embezzled escrow funds and used the money as
part of a large wire fraud scheme.3 A year later, Mr. Sniffen was disbarred from the practice
of law in Maryland for his participation in the scheme. See Att’y Grievance Comm’n v.
Sniffen, 427 Md. 521 (2012). He pleaded guilty to one count of conspiracy to commit wire
fraud in the United States District Court and, in January 2015, was sentenced to 36 months
imprisonment, followed by three years of supervised probation upon his release. See
Second Amended Judgment, United States v. Sniffen, No. 1:12-cr-00127-JFM (D. Md. Jan.
21, 2015). At his sentencing, Mr. Sniffen was ordered to pay $15,850,000.00 in restitution,
$3,115,000.000 of which was designated for Mr. Grebow.4
C. Client Protection Fund Claim
In February 2012, Mr. Grebow filed the underlying “Statement of Claim” against
Mr. Sniffen with the Fund. On the “CPF Claim 2528” form, Mr. Grebow alleged that,
3
The complaint was filed by Repid, LLC and Namkeb, LLC in the Circuit Court
for Baltimore County and was assigned Case No. 03-C-11-007986. Both companies
alleged that they entered into escrow agreements with Mr. Sniffen serving as the escrow
agent and were ultimately defrauded.
4
Meanwhile, back in September of 2011, Grebow Investments, LLC joined Repid,
LLC and Namkeb, LLC in their litigation in the Circuit Court for Baltimore County against
Mr. Sniffen, Patrick Belzner, Mr. McCloskey, and various companies owned by Mr.
McCloskey. In response to this lawsuit, and a variety of other similar lawsuits, on
(Continued)
6
between December 2009 and February 2011, Mr. Sniffen, while acting “as a fiduciary with
respect to an escrow account,” had taken $3,115,000.00.
The Trustees of the Fund denied Mr. Grebow’s claim during their May 2018
meeting. Mr. Grebow moved for reconsideration and, on January 30, 2019, the Trustees
held a hearing on the record. At the hearing’s outset, Mr. Grebow orally amended his claim
from $3,115,000.00 to $2,616,000.00, as he had received $499,000.00 in restitution and
other legal proceedings since he originally filed his claim with the Fund.
Mr. Grebow testified that the purpose of the Escrow Agreement was to prove the
liquidity of Mr. McCloskey’s company. Proving liquidity, Mr. Grebow explained,
“happens . . . frequently” in the real estate business because the “lender wants to see that
there is access to equity or cash.” He explained that, in this case, “the bank wanted to see
that [McCloskey] would be able to do the project and that there was cash standing by.”
More specifically, “there was going to be a 4 million dollars of liquidity that came when
the bank initially settled the loan.” He explained that, because the Company did not have
cash on hand, he agreed to post liquidity in an escrow account, which “would never leave
the account” and allow Mr. Sniffen, as escrow agent, to “make certain limited
representations to the bank.” In exchange for posting this liquidity, Mr. Grebow was to
December 3, 2012, the circuit court appointed a receiver to identify Mr. Sniffen’s stolen or
misappropriated funds and to distribute his estate. Mr. Grebow was awarded a pro rata
share of the receivership estate based on his net loss and received distributions of
$326,615.40 and $20,786.33 on July 31, 2019 and December 16, 2020. The circuit court
granted the receiver’s motion to terminate the receivership on December 16, 2020, and the
civil case was dismissed on December 23, 2021 for “[l]ack of [p]rosecution.”
7
receive, when the loan settled, his “money back plus a fee that the developer was going to
pay.”
Mr. Grebow maintained that he “exercised such caution” in drafting the Escrow
Agreement to ensure that Mr. Sniffen could not falsely represent that the Escrow Funds
were owned by Mr. McCloskey’s company. He noted, for example, that to avoid false
characterizations, the Escrow Agreement required that he approve any representation made
by Mr. Sniffen, to the Lender or otherwise, about the escrow funds.
Mr. Grebow also detailed the steps that he took to ensure that his money was
protected in the escrow account. He explained that he and his attorney made sure to clarify
that the money in the escrow account was his money. They also did “a bunch” of research
on Mr. Sniffen to “see if [he] steals money.” This research, he asserted, revealed that Mr.
Sniffen was “an attorney practicing pretty much with an unblemished record for 25 years.”
Had Mr. Sniffen not been a licensed attorney, Mr. Grebow asserted that he would “[n]ever
in a million years” have given him the money.
In Mr. Grebow’s view, he was entitled to compensation from the Fund as Mr.
Sniffen, in his capacity as a lawyer and an escrow agent, was a fiduciary. Mr. Grebow’s
attorney similarly argued that, “[b]ut for the fact that Mr. Sniffen was an attorney, this deal
would not have happened.” As an escrow agent, counsel asserted, Mr. Sniffen was a
“fiduciary” and that “to protect the integrity of the legal profession” the Trustees should
“pay this claim.”
The Trustees issued a final decision denying Mr. Grebow’s claim on April 12, 2019.
The Trustees concluded that Mr. Grebow transferred the funds to “Sniffen’s escrow
8
account for the sole purpose of allowing McCloskey to falsely represent to [the Lender]
that McCloskey had ‘liquid funds’ in escrow to satisfy McCloskey’s closing requirements
for a loan[.]” The Trustees noted that the escrow money was, at all times, to remain Mr.
Grebow’s and that “neither McCloskey, nor his entity, nor any of either’s creditors were to
acquire any right, title or interest in the Money[.]” They concluded that the purpose of the
Escrow Agreement was to make the Lender believe that “McCloskey had ‘liquid funds’ in
escrow to satisfy McCloskey’s closing requirements for a loan in the amount of
$27,984,000”—a fact that “McCloskey, Sniffen, and Grebow knew was false.” Therefore,
the Trustees characterized Mr. Grebow’s relationship with Mr. Sniffen and Mr. McCloskey
as that of “either a business partner[], a lender to, or co-conspirator[.]”
The services rendered by Mr. Sniffen in connection with the escrow arrangement
were, in the Trustees’ opinion, “utterly insufficient” to establish an attorney-client
relationship between himself and Mr. Grebow. They concluded that in his capacity as an
escrow agent, Mr. Sniffen was “not ask[ed] to, and did not perform, legal services.”
Specifically, the Trustees found that throughout the duration of the escrow arrangement,
Mr. Sniffen was “not asked to and did not give any legal advice, perform any legal research
or write any document, and he did not use any legal knowledge or skill in order to apply
legal principles and precedent.” By the terms of the Escrow Agreement, the Trustees
reasoned, Mr. Sniffen “merely” was tasked with holding the escrow funds “in his escrow
account as part of the scheme to show the Lender that McCloskey had the financial
wherewithal to complete the development project.” Simply holding funds, “without any
9
indication of the rendition of legal services or connection to any legal matter being handled
by Sniffen” did not, in the Trustees’ opinion, establish an attorney-client relationship.
Mr. Sniffen’s escrow agent duties also did not, in the Trustees’ view, resemble a
fiduciary capacity that is traditional and customary in the practice of law in Maryland. Mr.
Sniffen, the Trustees concluded, was “not acting as a personal representative, or a trustee,
a guardian, a custodian, or as the holder of power.” Rather, he was “appearing to create
an asset of a prospective borrower with a loan from a prospective lender,” which, in the
Trustees’ opinion, was not a fiduciary capacity that is “traditional and customary in the
practice of law.” Because Mr. Grebow and Mr. Sniffen were not engaged in an attorney-
client relationship or a fiduciary relationship that was traditional and customary in the
practice of law in Maryland, the Trustees determined that his claim was not reimbursable
from the Fund.
The Trustees also reasoned that the doctrine of “unclean hands” barred Mr.
Grebow’s claim.5 They found that his hearing testimony “was not credible” and that he
“knew or should have known [that he] was participating in a scheme with Sniffen to
misrepresent the assets of McCloskey to the Lender for the purposes of obtaining the
Loan.” The Trustees concluded that Mr. Grebow—“a very experienced lender in
development projects according to his testimony—turned a blind eye to the true nature of
The Trustees cited this Court’s opinion in Mona v. Mona Electric Group, 176 Md.
5App. 672, 714 (2007), in which we noted that the “equitable doctrine of unclean hands is
designed to prevent the court from assisting in fraud or other inequitable conduct. It is
available to deny relief to those guilty of unlawful or inequitable conduct with respect to
the matter for which relief is sought.” (cleaned up).
10
the arrangement.” In their view, the Escrow Funds could not represent the liquidity of Mr.
McCloskey or the Company as the funds remained, at all times, Mr. Grebow’s. Mr.
Grebow’s claim was, therefore, not compensable, as he was seeking to recover the “very
money” that he had used “in a scheme to misrepresent assets.”6
The Trustees concluded by observing that, to recover from the Fund, a claimant
“bears the dual burdens of production and persuasion on the question of whether the [c]laim
meets the eligibility requirements for reimbursement.” Because Mr. Grebow failed to meet
those burdens, the Trustees denied his claim.
D. Petition for Judicial Review
Mr. Grebow filed a petition for judicial review in the Circuit Court for Baltimore
County on April 25, 2019. He challenged the Trustees’ finding that Mr. Sniffen was not
“‘acting in a fiduciary capacity that is traditional and customary in the practice of law in
Maryland’ with respect to [Mr. Grebow’s] funds.” In his view, the Fund “clearly premised
its denial of [the] [c]laim on the mistaken conclusion that [he] was complicit in Sniffen’s
scheme.” There was no evidence in the record, he averred, “on which to base the Fund’s
self-serving conclusion that [he] was involved in the scheme to defraud with respect to the
escrowed funds that Sniffen ultimately embezzled.” To the contrary, he asserted that the
6
In a footnote, the Trustees also noted that the Fund’s regulations provided several
additional bases supporting their denial of Mr. Grebow’s claim. First, they noted that the
“fundamental purposes of the Fund do not include the reimbursement of investors [or] . . .
the guaranty of profit-making such as with small loan companies or similar enterprises.”
Next, the Trustees observed that claimants in a close relationship with the attorney, such
as “a spouse, a law partner, or conspirator,” are not eligible for reimbursement from the
Fund. The Trustees asserted that “[t]he Fund is not, and will not act as, a collection agency
for all claims against Maryland lawyers.”
11
Circuit Court for Baltimore County and the United States District Court for the District of
Maryland found that Mr. Grebow was a “victim of Sniffen’s fraud.” (Emphasis in original).
In their answering memorandum filed on September 30, 2020, the Trustees asserted
that their decision to deny Mr. Grebow’s claim was not arbitrary or capricious and was
supported by substantial evidence. They proffered “alternate reasons, either of which,”
they averred, was “sufficient for [the circuit court] to affirm” their decision. First, they
asserted that Mr. Grebow “was not in the required fiduciary relationship” with Mr. Sniffen.
In the Trustees’ view, Mr. Sniffen’s duties and responsibilities under the Escrow
Agreement did not resemble a fiduciary capacity that is “traditional and customary in the
practice of law.” While “Sniffen was certainly [Mr. Grebow’s] general fiduciary, and
certainly . . . answerable to [Mr. Grebow] on any number of theories,” the Trustees asserted
that Mr. Grebow and Mr. Sniffen “were not in the required, special, fiduciary relationship
necessary for reimbursement from the Fund.”
Second, even if Mr. Sniffen was acting in one of the requisite relationships, the
Trustees argued that they were within their discretion to deny Mr. Grebow’s claim. The
Trustees, after asserting that Maryland Rule 19-609(c)(7) grants them the discretion to
consider “any other factor [they] deem appropriate,” argued that the Escrow Agreement
and Mr. Grebow’s testimony led to their conclusion that Mr. Grebow “knew or should have
known [that he] was participating in a scheme with Sniffen to misrepresent the assets of
McCloskey to the Lender[.]”
After conducting a virtual hearing in December 2020, the circuit court issued a
memorandum opinion and ruling in which it concluded that Mr. Grebow was not entitled
12
to recovery from the Fund. The court reasoned that under the Escrow Agreement Mr.
Sniffen was tasked, simply, with holding “money for the benefit of McCloskey’s business
endeavors.” It found no error with the Fund’s determination that these duties did not rise
to the level of an attorney-client relationship or a fiduciary relationship that is traditional
and customary in the practice of law in Maryland. Consequently, the court affirmed the
decision of the Fund. Mr. Grebow noted a timely appeal on February 10, 2021.
STANDARD OF REVIEW
It is well established that on appeal from the judgment of the circuit court on judicial
review of an agency decision, we “look through” the decision of the circuit court and
review the agency’s decision directly. Am. Asset Fin., LLC v. Trs. of Client Prot. Fund of
Md., 216 Md. App. 306, 315 (2014) (collecting cases). The standard that we apply in
reviewing a final decision of the Trustees is spelled out in Maryland Rule 19-610(b):
[T]he decision of the trustees shall be deemed prima facia correct and shall
be affirmed unless the decision was arbitrary, capricious, unsupported by
substantial evidence on the record considered as a whole, beyond the
authority vested in the trustees, made upon unlawful procedure, or
unconstitutional or otherwise illegal.
In applying this standard, we defer to the Trustees’ fact-finding as well as the
inferences that the Trustees drew from those facts, so long as there is evidence in the record
that can support those findings and inferences. Am. Asset Fin., LLC, 216 Md. App. at 316.
In other words, we view the agency’s decision “in the light most favorable to the agency,”
Mayor of Balt. v. ProVen Mgmt., Inc., 472 Md. 642, 667 (2021), and our review is “limited
to determining whether ‘there is substantial evidence in the record as a whole to support
the agency’s findings and conclusions, and to determine if the administrative decision is
13
premised upon an erroneous conclusion of law,’” Cherington Condo. v. Kenney, 254 Md.
App. 261, 278 (2022) (quoting Md. Real Estate Comm’n v. Garceau, 234 Md. App. 324,
349 (2017)). We are under “no constraints in reversing an administrative decision which
is premised solely upon an erroneous conclusion of law.” ProVen Mgmt., Inc., 472 Md. at
667 (2021) (quoting People’s Couns. v. Md. Marine Mfg. Co., 316 Md. 491, 497 (1989)).
DISCUSSION
A. The History and Framework of the Client Protection Fund
To provide context for the parties’ arguments and our analysis, we begin with an
overview of the purpose of the Client Protection Fund and the laws by which it is governed.
The Fund began to take shape in 1965 after the Maryland State Bar Association
unanimously approved a proposal to establish a client protection fund. Folly Farm I, Inc.
v. Trs. of the Clients’ Sec. Trust Fund of the Bar of Md., 282 Md. 659, 662 (1978). The
discussions which transpired within the Bar Association before the proposal was approved
make it clear that the members understood the Fund would not, and could
not, cover all losses an attorney might cause . . . . The members were,
however, anxious not only to offer protection against a lawyer’s
embezzlement of his clients funds, but also to ensure that a person for whom
an attorney was acting as a fiduciary would be entitled to claim against the
Fund for a loss resulting from defalcation by the attorney, even though an
attorney-client relationship did not exist between the claimant and the
attorney.
Monumental Life Ins. Co. v. Trs. of Clients’ Sec. Trust Fund of the Bar of Md., 332 Md.
442, 447 (1991) (emphasis added). Thereafter, the General Assembly enacted Chapter 779
of the Acts of 1965, which authorized the Court of Appeals to “promulgate rules and
regulations for the creation and operation of” a client protection fund. Folly Farm I, Inc.,
14
282 Md. at 662. “The Fund became fully operative on July 1, 1966, when the [T]rustees
began to collect assessments.” Id.Under Maryland Code (1989, 2018 Repl. Vol.), Business Occupations and
Professions Article (“BOP”), § 10-311(c), as a condition precedent to practicing law in
Maryland, lawyers are required to pay an annual fee into the Client Protection Fund, which
operates as a trust. The Fund’s purpose is to “maintain the integrity of the legal profession
by paying money to reimburse losses caused by defalcations of lawyers.” Id. at (b); Md.
Rule 19-602. It is managed by nine trustees who are appointed by the Court of Appeals.
BOP § 10-310(a)(2); Md. Rule 19-603(a). The Trustees are responsible for, among other
things, “(1) receiv[ing] contributions to the Fund; and (2) manag[ing] the assets of the
Fund.” BOP § 10-312(a).
Although “[n]o claimant or other person has any right in the Fund, as beneficiary or
otherwise,” Md. Rule 19-609(b)(2), the Trustees may reimburse a “loss that was caused by
a defalcation of a lawyer if: (1) the lawyer caused the loss while acting for the person as
an attorney at law or a fiduciary; and (2) the person cannot recover the money under a
bond,” BOP § 10-312(b) (emphasis added); see also Md. Rule 19-602(a) (“The purpose
of the Client Protection Fund is to maintain the integrity and protect the good name of the
legal profession by reimbursing . . . losses caused by defalcations by members of the Bar
of Maryland or out-of-state attorneys authorized to practice in this State . . . acting as either
attorneys or, except to the extent they are bonded, as fiduciaries.”). The Maryland Rules
further clarify that, for a claimant to be eligible to recover from the Fund, a defalcating
attorney acting as a fiduciary must have been acting in a fiduciary capacity that is
15
“traditional and customary in the practice of law in Maryland[.]” Md. Rule 19-602(b)
(emphasis added).
If the Trustees make the threshold determination that a claim does qualify for
reimbursement, they must proceed to determine “the amount of such reimbursement; [] the
time, place, and manner of payment; [] any conditions upon which payment will be made;
and [] the order in which payments will be made.” Md. Rule 19-609(b). In rendering these
decisions, the Trustees may consider:
(1) The amounts available and likely to become available to the Fund for the
payment of claims;
(2) The amount and number of claims likely to be presented in the future;
(3) The total amount of losses caused by defalcations of any one attorney or
associated group of attorneys;
(4) The unreimbursed amounts of claims recognized by the trustees in the
past as meriting reimbursement, but for which reimbursement has not
been made in the total amount of the loss sustained;
(5) The amount of the claimant’s loss as compared with the amount of the
losses sustained by other claimants who may merit reimbursement from
the Fund;
(6) The degree of hardship the claimant has suffered by the loss; and
(7) Any other factor the trustees deem appropriate.
Md. Rule 19-609(c) (emphasis added).
B. The Parties’ Contentions
Mr. Grebow contends that the Trustees’ decision lacks both legal and factual
support. Specifically, Mr. Grebow asserts that the Trustees erred as a matter of law when
they determined that, under the terms of the Escrow Agreement, Mr. Sniffen was not acting
“in a fiduciary capacity that is traditional and customary in the practice of law in
Maryland.” In his view, this decision lacked legal support because the Trustees “cite no
legal authority for the denial other than Rule 19-602 itself.” Mr. Sniffen’s role was
16
“traditional and customary” in the practice of law in Maryland, according to Mr. Grebow,
as Maryland law imposed specific duties on lawyers who are depositing “Trust Money in
Interest Bearing Accounts.” Mr. Grebow avers that his deposits into Mr. Sniffen’s escrow
account were “tantamount to an express trust,” as he deposited his funds into Mr. Sniffen’s
“attorney escrow account” and expected him to hold the Funds “pursuant to the terms of
the Escrow Agreement.” In support of his contention, he highlights that Mr. Sniffen was
“disbarred from the practice of law ‘for the unauthorized use of trust funds[.]”’ Citing
Advance Finance Co., Inc. v. The Trustees of the Clients’ Security Trust Fund of the Bar
of Maryland, 337 Md. 195 (1995), he argues that “a lawyer’s duty to safeguard funds and
property extends not just to clients, but also to third parties like Grebow.” From there, he
asserts that “the fact that Sniffen was acting merely as an escrow agent and was not
rendering legal services in connection with the underlying real estate development project
does not alter or diminish his fiduciary duty under Maryland law[.]”
Mr. Grebow insists that the Fund’s determination that he “somehow participated in
[Mr.] Sniffen’s illegal conspiracy” is unsupported by substantial evidence in the record.
He remonstrates that the Trustees were “clearly biased” and demonstrated this by
characterizing Mr. Grebow as a “co-conspirator” with Mr. McCloskey, despite Mr.
Grebow’s award of restitution “in the total amount of his loss” in the United States District
Court for the District of Maryland. Additionally, in his view, the Trustees’ determination
that the Escrow Agreement was consummated for the purpose “of appearing to create an
asset of a prospective borrower for use in connection with a loan from a prospective lender”
disregarded “the express and undisputed language of the Escrow Agreement.”
17
The Trustees maintain that they were “legally correct” in determining that Mr.
Grebow’s claim with the Fund was “not reimbursable” because Mr. Sniffen and Mr.
Grebow were not “in a fiduciary relationship . . . that was traditional and customary to the
practice of law.” The terms of the Escrow Agreement, they argue, establish that the
“activity” was “between just two people”—Mr. Grebow and Mr. Sniffen. They highlight
that, under the terms of the Agreement, Mr. Sniffen “could only return the Escrow Funds
to [Mr.] Grebow, and that he could not distribute any of the Escrow Funds to any other
person or entity—not even the Lender in the event of a loan default.” (Emphasis in
original). According to the Trustees, Mr. Grebow “could not deliver a credible, meaningful
answer” regarding the “purpose of putting this money into Sniffen’s escrow account”
“other than to testify that the purpose was ‘proof of liquidity.’”
Considering the terms of the Escrow Agreement, together with its alleged purpose,
the Trustees posit that “it was reasonable for [them] to infer . . . that [Mr. Grebow’s]
deposits with [Mr.] Sniffen were intended to create the false appearance of [Mr.]
McCloskey’s liquidity to be relied upon by his prospective lender in order to enhance the
consummation of the loan.” Therefore, citing to American Asset Finance, LLC v. Trustees
of the Client Protection Fund of the Bar of Maryland, 216 Md. App. 306 (2014), the
Trustees argue that Mr. Sniffen was not acting as a “special fiduciary as contemplated by
[Maryland Rule] 19-602(b).”
Even if Mr. Sniffen and Mr. Grebow had established the requisite fiduciary
relationship, the Trustees persist, the doctrine of unclean hands bars Mr. Grebow’s
reimbursement from the Fund. Given that Mr. Grebow was, by his own admission, a “very
18
experienced lender in development projects,” the Trustees contend that he knew the Escrow
Agreement could not show Mr. McCloskey’s liquidity “because the Escrow Funds
remained, at all times, [Mr. Grebow’s] funds.” They aver that they were within their
discretion to consider the fact that Mr. Grebow, “deliberately or otherwise . . . turned a
blind eye to the true nature of the [escrow] arrangement” and that this conduct “weights
against” reimbursement from the Fund.
C. Analysis
Neither Mr. Grebow nor the Trustees argue that Mr. Sniffen and Mr. Grebow were
engaged in an attorney-client relationship. Accordingly, we concentrate our analysis on
the Trustees’ determination that Mr. Sniffen was not acting as “an attorney . . . in a
fiduciary capacity that is traditional and customary in the practice of law in Maryland[.]”
Md. Rule 19-602(b). We begin with two cases that delimit the fiduciary capacities that
qualify under the Rule.
i. Prior Case Law
In Advance Finance Co. v. The Trustees of the Clients’ Security Trust Fund of the
Bar of Maryland, the Court of Appeals addressed whether an attorney acts as a fiduciary
for a non-client when the attorney, at a client’s instruction, “disburses client funds from the
attorney’s trust account to [the] non-client.” 337 Md. 195, 208 (1995). Advance Finance
was in the consumer lending business and made “loans to personal injury claim plaintiffs
secured by assignments of any proceeds of the injury claims.” Id. at 197. Before a loan
was made, the plaintiff’s attorney had to submit certain information, including the
estimated value of the lawsuit, to Advance Finance. Id. If Advance Finance approved the
19
loan request, the client was required to sign, among other things, an “Authorization and
Assignment,” which authorized the client’s attorney to pay Advance Finance with the
proceeds of any personal injury recovery. Id. at 198-99.
A lawsuit arose after two Maryland attorneys, who had facilitated “at least seventy-
seven” loans for their clients with Advance Finance, ceased remitting the personal injury
funds to Advance Finance as contemplated by the “Authorization and Assignment” form.
Id. at 199. After obtaining default judgments against the attorneys, Advance Finance filed
a claim with the Fund seeking reimbursement “for the net balances of the loans” made to
the attorneys’ clients. Id. The Fund denied the claims on the ground that Advance Finance
and the attorneys “did not have an attorney-client relationship . . . and that [the attorneys]
were not fiduciaries for Advance [Finance].” Id. The Court of Appeals reversed.
The Court explained that Rule 1.15 of the Rules of Professional Conduct requires
that attorneys in possession of client funds belonging to a non-client third party must
promptly notify and disburse the funds to the non-client third party. Id. at 204-06. With
this obligation in mind, the Court noted that the Fund frequently paid out claims involving
non-clients, including “‘[t]hefts of real estate proceeds or related escrows,’ ‘[t]hefts of
estate and fiduciary moneys,’ and ‘[t]hefts of accident/injury settlement proceeds, and
related escrows[.]”’ Id. at 210. In the personal injury context, the Court acknowledged
that the Fund had previously “issued joint payee checks to the client and an unpaid health
care provider of the client.” Id. The Court saw “little difference” between these
compensable non-client claims and the claims submitted by Advance Finance. Id. at 210.
Based on these principles, the Court determined that the former attorneys, who acted as
20
“intermediaries” between Advance Finance and their clients when they coordinated and
participated in the loan approval process, were fiduciaries for Advance Finance when they
received the settlement proceeds belonging to Advance Finance for their client’s personal
injury cases. Id. Therefore, the Court remanded the case to the Fund to determine whether
Advance Finance was entitled to compensation, and if so, in what amounts. Id. at 211.
We considered a similar issue in American Asset Finance, LLC. v. Trustees of the
Client Protection Fund of the Bar of Maryland, 216 Md. App. 306 (2014). Much like
Advance Finance, American Asset Finance (“AAF”) was in the business of loaning
attorneys and their clients’ money in exchange for an interest in prospective settlements or
estates. Id. at 308. AAF entered into four agreements with Mr. Schwartz, a Maryland
attorney, who, under the terms of each agreement, assigned AAF an interest in his
prospective attorney’s fees in exchange for a lump-sum cash payment. Id. AAF also
entered into a fifth agreement with one of Mr. Schwartz’s law clients, who assigned to
AAF a prospective interest in an estate. Id. That agreement authorized Mr. Schwartz to
accept delivery of AAF’s interest and to “remit it to AAF immediately on receipt in
accordance with [AAF’s] instructions.” Id. at 310. Mr. Schwartz failed to remit any of the
funds as contemplated by the agreements. Id. at 311.
After Mr. Schwartz was “disbarred by consent from the practice of law in Maryland
based upon his having misappropriated funds deposited in his IOLTA account,” 7 AAF
7
IOLTA is shorthand for an Interest on Lawyer Trust Account and “means interest
on attorney trust accounts payable to the Maryland Legal Services Corporation Fund[.]”
Md. Rule 19-402(h).
21
filed claims for reimbursement with the Fund. Id. In its final determination, the Fund
denied all four claims relating to the interest assigned in the attorney’s fees. Id. at 313.
Although the Fund noted that there were “several grounds upon which the Trustees could
deny the Claims,” the Fund’s decision was “based solely upon its conclusion that AAF did
not have standing ‘to make a claim with the Fund because of a lack of attorney-client or
fiduciary relationship with [the attorney].’” Id.The Fund decided there was no attorney-client relationship, noting that the “only
legal service Schwartz was to provide to [AAF] was the collection and disbursement of the
settlement and estate proceeds from the cases in which Schwartz was the attorney.” Id. In
finding that the requisite fiduciary relationship did not exist, the Fund explained that it
“looked to the ‘real relationship’ between AAF and [the attorney]” and concluded that it
was not “traditional and customary in the practice of law.” Id. at 314.
Conversely, the Fund granted in part the sub-claim arising from the agreement with
the attorney’s client. Id. at 312. Because the law client had authorized the attorney to
accept her settlement and pay AAF its share, the Fund determined that under Advance
Finance, the attorney and AAF “had a fiduciary relationship giving rise to a compensable
claim.” Id. at 312. After a circuit court affirmed the decision of the Fund, AAF appealed
to this Court. Id. at 315.
At the time that AAF appealed, the Maryland Rules did not limit the scope of
fiduciary relationships that were eligible for recovery from the Fund. However, the Fund
did have an “Eligibility” regulation, which clarified that a “‘fiduciary relationship’ means,
for example, a lawyer acting in a fiduciary capacity traditional and customary in the
22
practice of law in Maryland.” Id. at 317 (quoting the Regulations of the Client Protection
Fund). Analogizing to the agreement in Advance Finance, we reasoned that the agreement
with Mr. Schwartz’s law client was compensable, as the law client had authorized Mr.
Schwartz to accept her settlement and to pay a third-party, AAF, its assigned share. Id.Because Mr. Schwartz’s defalcation resulted from his role as an intermediary between his
law client and AAF, we concluded that AAF was eligible to recover, as the attorney’s
fiduciary role was “traditional and customary in the practice of law in Maryland.” Id.We also affirmed the Fund’s decision denying AAF’s claims related to Mr.
Schwartz’s prospective attorney’s fees. Id. at 321-22. We noted that, “in marked contrast
to the facts presented in Advance Finance,” the agreement between the attorney and AAF
“did not involve a law client” and, therefore, the attorney’s “defalcation resulted in his
failure to repay a personal obligation to AAF, rather than his failure to disburse funds to
satisfy an obligation of his law client.” Id. at 321 (emphasis added). Under these
agreements, Mr. Schwartz was not acting on behalf of a law client and, consequently, was
not acting as an intermediary between a client and third-party. In fact, Mr. Schwartz was
not acting as an intermediary at all, as the agreements involved only himself and AAF. Id.
at 321. Under these facts, and according the requisite deference to the Fund’s interpretation
of its own regulation, we determined that the Fund did not err in concluding that “an
attorney’s direct assignment of a personal interest in an expected fee does not create a
fiduciary relationship that is traditional and customary in the practice of law.” Id. at 321-
22.
23
ii. Adoption of Title 19, Chapter 6 of the Maryland Rules
The Court of Appeals has the constitutional duty to “adopt rules and regulations
concerning the practice and procedure in and the administration of the appellate courts and
in the other courts of this State, which shall have the force of law until rescinded, changed
or modified by the Court of Appeals or otherwise by law.” Md. Const. art. IV, § 18(a).
Because the Maryland Rules carry the weight of law, a court’s interpretation of them is a
matter of law, to be conducted under a de novo standard of review. Xu v. Mayor of Balt.,
254 Md. App. 205, 211 (2022).
The Court of Appeals, in 2016, adopted Rule 19-602 which incorporated part of the
Fund’s regulation governing “Eligibility.” Similar to the regulation, the Rule limits the
scope of eligible claimants to those who sustained “losses caused by defalcations by
members of the Bar of Maryland or out-of-state attorneys . . . acting either as attorneys or,
except to the extent they are bonded, as fiduciaries.” Md. Rule 19-602(a). The Rule also
incorporates the regulation’s definition of a “fiduciary,” and provides that, to be eligible to
recover from the Fund, the fiduciary must have been “an attorney acting in a fiduciary
capacity that is traditional and customary in the practice of law in Maryland.” Md. Rule
19-602(b). By way of illustration, the Rule provides a non-exhaustive list of fiduciary roles
that are “traditional and customary in the practice of law in Maryland”: (1) “personal
representative of a probate estate”; (2) “trustee of an express trust”; (3) “a guardian”; (4)
“a custodian acting pursuant to statute”; or (5) “an attorney-in-fact by written
appointment.” Id.24
iii. Mr. Sniffen’s Capacity Under the Escrow Agreement
Mr. Sniffen’s duties under the Escrow Agreement did not resemble the
“intermediary roles” occupied by the defalcating attorneys with regard to the compensable
claims in Advance Finance and American Asset Finance. However, unlike the
compensable claims in those cases, whereby the attorneys possessed client funds belonging
to non-client third parties—here, Mr. Grebow seeks to recover funds that Mr. Sniffen was
holding on behalf of a non-client, Mr. Grebow, for the benefit of the same non-client, Mr.
Grebow.8 The Escrow Agreement specified that Mr. Grebow was “the sole beneficiary of
the Escrow Account, and neither McCloskey, the Company, nor their respective creditors,
[were] acquiring any right, title or interest in the Escrow Funds”9 and that Mr. Sniffen was
not permitted to “withdraw or disburse the Escrow Funds or any portion thereof or allow
the withdrawal or disbursement of the Escrow Funds or any portion thereof[.]” Mr. Sniffen
was clearly not acting as a “mediator or go-between” as the attorney with regard to the
compensable claim with the law client in American Asset Finance.
In addition to bearing no resemblance to the “intermediary capacities” in Advance
Finance and American Asset Finance, Mr. Sniffen’s escrow agent duties also did not
resemble the example fiduciary capacities listed in Rule 19-602(b), all of which involve a
8
Mr. Grebow does not seek to recover the two-million-dollar fee that he was owed
under the Ninth Amendment to the Escrow Agreement.
9
We note that this provision conflicts with the “Escrow Agent’s Responsibilities”
section, which provides, in relevant part, that the Escrow Agent “shall not allow any third
party, other than the Lender or Grebow, to obtain possession of or an interest in the Escrow
Funds[.]” (Emphasis added).
25
fiduciary interacting with third parties for the benefit of a client. Under the terms of the
Escrow Agreement, Mr. Sniffen was tasked, simply, with “promptly establish[ing] a . . .
depository account at Wachovia Bank” where he would house Mr. Grebow’s deposits until
he was instructed to return the escrow funds directly to Mr. Grebow. Mr. Grebow testified
that Mr. Sniffen was simply holding his money, without any possibility that it would be
otherwise disbursed, as he agreed that under the Escrow Agreement he was to receive
“$500,000 for four months of parking [his] money in Mr. Sniffen’s escrow account.”
In further contrast to the compensable claims in Advance Finance and American
Asset Finance, Mr. Sniffen’s duties as escrow agent were not adjacent to any legal services
that he was providing to either Mr. Grebow or Mr. McCloskey.10 The terms of the Escrow
10
The type of bank account contemplated by the Escrow Agreement underscores
that Mr. Sniffen’s role certainly was not “traditional and customary in the practice of law
in Maryland.” Section 1(b) of the Agreement requires that Mr. Sniffen “promptly establish
the Escrow Account” which was to be a “non-interest bearing depository account at
Wachovia Bank” titled “Kevin Sniffen, Escrow Agent.” This account plainly would not
qualify as an attorney trust account under the Business Occupations and Professions Article
of the Maryland Code and the Maryland Rules.
Generally, attorneys who are handling funds “from a client or third person to be
delivered in whole or in part to a client or third person” must deposit the funds “in an
attorney trust account in an approved financial institution.” Md. Rule 19-404; BOP § 10-
302. To establish an attorney trust account, the attorney must, in writing:
(a) Request[] the financial institution to designate the account as an attorney
trust account, and
(b) Authorize[] the financial institution to report to Bar Counsel any
dishonored instruments or overdrafts in the account as required by the
agreement under Rule 19-411 between the institution and the Commission.
Md. Rule 19-405. Additionally, an attorney trust account must be named in a way that
“distinguish[es] the account from any other fiduciary account that the attorney or law firm
may maintain and from any personal or business account of the attorney or law firm.” Md.
Rule 19-406.
(Continued)
26
Agreement were clear that the entire agreement was consummated “solely for the purpose
of satisfying [Mr. McCloskey’s] closing requirements of that certain loan[.]” While all
five of the “Escrow Agent Responsibilities” required that Mr. Sniffen safeguard the escrow
funds for Mr. Grebow’s benefit, there was no mention in the Escrow Agreement of any
legal services that Mr. Sniffen was required to perform. It is undisputed that Mr. Grebow
was not a law client of Mr. Sniffen, as Mr. Grebow was separately represented throughout
the pendency of the Escrow Agreement by Barry Weiskopf, Esquire.11
Under the terms of the Escrow Agreement, Mr. Sniffen’s role was limited to creating
an escrow bank account, which did not qualify as an attorney trust account, and holding
the escrowed funds of Mr. Grebow, a non-client, for investment purposes, until he was
instructed to return the funds back to Mr. Grebow. This relationship does not resemble the
“intermediary” capacities recognized in Advance Finance and American Asset Finance or
the fiduciary capacities listed in Rule 19-602(b).
For all these reasons, we hold that, under the terms of the Escrow Agreement, Mr.
Sniffen was not acting in a fiduciary capacity that is “traditional and customary in the
Here, the Escrow Agreement did not specify that Mr. Sniffen was to house the
money in an attorney trust account. In fact, Mr. Grebow’s escrow money was deposited
and housed in Mr. Sniffen’s “Comm Checking” account and not his registered “IOLTA”
attorney trust account. Mr. Sniffen’s “Comm Checking” account statements show that the
account was used for non-legal services, as the statements reflect several entries relating to
“McCloskey’s subcontractors and suppliers” and “McCloskey’s operations.”
11
We also note that, because Mr. Sniffen was not rendering any legal services in
connection with the Escrow Agreement or for Mr. Grebow, Maryland Rule 19-301.15,
Safekeeping Property, is not applicable, as it applies only to funds that an attorney
possesses “in connection with a representation.”
27
practice of law in Maryland.” Consequently, we affirm the Trustees’ decision that Mr.
Grebow was not eligible to recover from the Fund.
iv. Substantial Evidence
Although the Trustees’ “Final Decision” provides several reasons why Mr.
Grebow’s claim fails, we need only examine whether there was substantial evidence in the
record to support their determination that Mr. Sniffen was not acting in a fiduciary capacity
that was “traditional and customary in the practice of law in Maryland.” Initially, we note
that Mr. Grebow’s “substantial evidence” argument, presented within his briefing on
appeal, was waived as it was not raised in his question presented. See O’Sullivan v.
Kimmett, 252 Md. App. 653, 678-79 (2021) (“Appellants can waive issues for appellate
review by failing to mention them in their ‘Question Presented’ section of their brief.”
(quoting Green v. N. Arundel Hosp. Ass’n., Inc., 126 Md. App. 394, 426 (1999))). In Green
v. North Arundel Hospital Ass’n, this Court reasoned that “[c]onfining litigants to the issues
set forth in the ‘Questions Presented’ segment of their brief ensures that the issues
presented are obvious to all parties and the Court.” 126 Md. App. at 426 (citing DiPino v.
Davis, 354 Md. 18, 56 (1999)). Here, Mr. Grebow’s question presented does not mention
substantial evidence but, rather, challenges the Fund’s determination under Maryland Rule
19-602(b) that Mr. Sniffen was not acting in the requisite fiduciary capacity.
Even if Mr. Grebow’s claim was preserved, we hold that the Trustees’ conclusion
that Mr. Sniffen was not acting in a fiduciary capacity that was “traditional and customary
in the practice of law in Maryland” was supported by substantial evidence. As the Court
of Appeals has recently acknowledged, under the “substantial evidence test,” we consider
28
whether the administrative agency’s decision is supported by “such relevant evidence as a
reasonable mind might accept as adequate to support a conclusion.” Mayor of Balt. v.
ProVen Mgmt., Inc., 472 Md. 642, 667 (2021) (quoting Bulluck v. Pelham Woods
Apartments, 283 Md. 505, 512 (1978)). As we have already explained above, the unusual
terms12 of the Escrow Agreement supply enough evidence for a reasoning mind to conclude
that Mr. Sniffen was not acting in a qualifying fiduciary capacity under Maryland Rule 19-
602.13
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE COUNTY AFFIRMED;
COSTS TO BE PAID BY APPELLANT.
12
We agree with the Trustees that an agreement that provides for a fee of $2 million
for the simple “parking” of just over $3 million for 16 months is unusual.
Mr. Grebow also argues that the Fund’s conclusion that he was involved in Mr.
13
Sniffen’s fraudulent scheme is “faulty” and “contrary to . . . publicly available findings by
the Maryland state and federal courts[.]” While Mr. Grebow was awarded restitution by
the Circuit Court for Baltimore County and the United States District Court for the District
of Maryland, there is nothing in the record evincing that either court made findings of fact
and adjudged Mr. Grebow a victim of Mr. Sniffen’s theft scheme.
29