Attorney Grievance Comm'n of Md. v. Powell , 461 Md. 189 ( 2018 )

Attorney Grievance Commission v. Roger N. Powell, Misc. Docket AG No. 9, September
Term, 2017. Opinion by Getty, J.
ATTORNEY DISCIPLINE — SANCTIONS — DISBARMENT — The Court of
Appeals disbarred an attorney who failed to submit timely, completed, and accurate
inventory of estate assets and administrative account of the estate, failed to submit a
petition for personal representative’s commissions and attorney’s fees before disbursing
fees to himself and the personal representative, and, after the issuance of Orphans’ Court
orders to do so, failed to return estate funds. Additionally, the attorney filed a lawsuit
against the previous personal representative of the estate, which the circuit court and the
Court of Special Appeals ruled was without substantial justification. Lastly, the attorney
failed to properly manage his trust accounts. There was clear and convincing evidence of
commingling, use of the accounts for personal matters, and failure to keep complete
records.
These actions violated the Maryland Lawyers’ Rules of Professional Conduct Rules 1.1
(Competence), 1.3 (Diligence), 1.5(a) (Fees), 1.7 (Conflict of Interest) 1.15(a)
(Safekeeping Property), 3.1(a) (Meritorious Claims and Contentions), 3.3(a) (Candor
Toward the Tribunal), 3.4(c) (Fairness to Opposing Party and Attorney), 4.4 (Respect for
Rights of Third Persons), 8.1(b) (Bar Admission and Disciplinary Matters), and 8.4(a), (c),
and (d) (Misconduct), and Maryland Rules 19-407, 19-408, and 19-410 (formerly
Maryland Rules 16-606.1, 16-607, and 16-609).
Circuit Court for Baltimore City
Case No.: 24-C-17-003207/AG
Argued: June 1, 2018
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 9
September Term, 2017
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
ROGER N. POWELL
Barbera, C.J.
Greene,
Adkins,
McDonald,
Watts,
Hotten,
Getty,
JJ.
Opinion by Getty, J.
Filed: August 28, 2018
2018-08-28
08:55-04:00
This attorney discipline case involves an attorney who represented the personal
representative of an estate. While representing his client, the attorney failed to submit a
timely, complete, and accurate inventory of estate assets and an administrative account of
the estate. The attorney also failed to submit a petition for personal representative’s
commissions and attorney’s fees before disbursing fees and commissions to himself and
the personal representative. Even after the Orphans’ Court ordered him to return the estate
funds, the attorney did not. Additionally, the attorney filed a lawsuit against a previous
personal representative of the estate which the circuit court and the Court of Special
Appeals determined was without substantial justification. Lastly, the attorney failed to
properly manage his trust accounts, using the accounts for personal matters, and failed to
retain complete records.
On May 5, 2017, the Attorney Grievance Commission of Maryland (“Bar Counsel”)
filed a Petition for Disciplinary or Remedial Action (“Petition”) alleging that Roger N.
Powell (“Powell”) had violated the Maryland Lawyers’ Rules of Professional Conduct
(“Rules”).1 The Petition alleged that Powell, during representation of Charles Wingler in
the administration of Charlene Wingler’s estate (“the Estate” or “decedent’s Estate”) and
otherwise, violated the following Rules: 1.1 (Competence); 1.3 (Diligence); 1.4
1
Effective July 1, 2016, the MLRPC were renamed the Maryland Attorneys’ Rules of
Professional Conduct (“MARPC”) and recodified in Title 19 of the Maryland Rules. Since
Powell’s misconduct occurred before and after the effective date of the recodification of
the rules of professional conduct, he committed violations of the same rules of professional
conduct under both the MLRPC and the MARPC. For simplicity, and because there is no
substantive difference in the two codifications of the rules, we shall use the shorter
designations of the MLRPC, e.g., “Rule 1.1.”
(Communication); 1.5 (Fees); 1.7 (Conflict of Interest); 1.8 (Conflict of Interest); 1.15
(Safekeeping Property); 3.1 (Meritorious Claims and Contentions); 3.3 (Candor Toward
the Tribunal); 3.4 (Fairness to Opposing Party and Attorney); 4.4 (Respect for Rights of
Third Persons); 8.1 (Bar Admission and Disciplinary Matter); and 8.4 (Misconduct).2 The
Petition also alleged that Powell violated Maryland Rules 16-603 (Duty to Maintain
Account), 16-606.1 (Attorney Trust Account Record-Keeping), 16-607 (Commingling of
Funds), and 16-609 (Prohibited Transactions).3
By Order dated June 6, 2017, we designated Judge Philip S. Jackson (“the hearing
judge”) of the Circuit Court for Baltimore City to conduct a hearing concerning the alleged
violations and to provide findings of fact and recommended conclusions of law. See
Maryland Rule 19-722(a). The hearing took place over the course of September 27-29,
2017 (“evidentiary hearing”). At the evidentiary hearing, Bar Counsel introduced into
evidence various exhibits, including documents relating to the Estate and to Powell’s
attorney trust accounts. Several witnesses, including E. Suzan Miller, Charles Miller,
Charles Wingler, Jean Wingler, and Powell, testified.
After the evidentiary hearing concluded, the hearing judge requested that the parties
submit proposed findings of facts and conclusions of law. Bar Counsel submitted a
memorandum within the period specified by the hearing judge. The hearing judge then
2
Bar Counsel later withdrew its Rule 1.4 violation allegation.
3
Effective July 1, 2016, these rules on attorney trust accounts were recodified as Maryland
Rules 19-403, 19-407, 19-408, and 19-410, respectively. We will refer to the present
Maryland Rules in our analysis.
2
submitted his findings of facts and conclusions of law opinion to this Court on January 10,
2018. On January 17, 2018, Powell filed a motion to remand with this Court that alleged
that he submitted a legal memorandum to the hearing judge at the close of evidence that
was not considered by the hearing judge. We granted Powell’s motion and referred the
matter back to the hearing judge to consider Powell’s memorandum. The hearing judge
then issued an updated opinion on March 30, 2018. In his recommended conclusions of
law, the hearing judge found that Powell violated Rules 1.1, 1.3, 1.5(a), 1.7, 1.15(a), 3.1(a),
3.3(a), 3.4(c), 4.4, 8.1(b) and 8.4(a) and (c). The hearing judge also concluded that Powell
violated Maryland Rules 16-606.1, 16-707, and 16-609.
Both parties filed exceptions to the hearing judge’s findings of fact and
recommended conclusions of law. On June 1, 2018, we heard oral argument in this matter.
The same day, we issued a per curiam order disbarring Powell. We now explain our
reasons for imposing the sanction of disbarment.
BACKGROUND
Powell was admitted to the Bar of Maryland in June 1971 and has maintained a law
office in either Baltimore City or Baltimore County since his admission.
This matter involves two instances of alleged misconduct stemming from: (a) a
complaint filed by E. Suzan Miller, Esq. (“Attorney Miller”), pertaining to Powell’s
conduct during the administration of the Estate; and, (b) Powell’s management of his
attorney trust accounts generally. We summarize the hearing judge’s factual findings
below.
The Will and the Administration of the Estate
3
In 2004, Charlene Wingler (“the decedent”) handwrote a document titled “Charlene
Denise Wingler’s final wishes” (the “will”). In this will, the decedent appointed her long-
time friend, Stephanie Wilking (“Wilking”), as the personal representative of the Estate
and as beneficiary to care for her pets and house with the proceeds of the Estate.
Additionally, the will gifted personal property and $20,000 to her brother, Charles Wingler,
and $5,000 to his wife. Although the will was required to be signed by the decedent and
witnessed by two individuals, only one witness signed the document. The will included a
list of the decedent’s assets, including her bank, retirement, and investment accounts and
life insurance policies.
On January 8, 2011, Charlene Wingler died. Attorney Miller began representation
of Wilking in matters related to the Estate following Charlene Wingler’s death. Although
she had concerns about the validity of the handwritten will due to the lack of two witness
signatures, Attorney Miller filed the will along with other necessary documents based upon
a conversation she had with an assistant Register of Wills. Included in these documents
were proofs of execution of the will completed by two witnesses although only one signed
the will. The will was admitted for administrative probate on April 1, 2011, and Wilking
was appointed personal representative of the Estate.
During June 2011, Charles Wingler contacted Attorney Miller and told her that he
had received the Estate documents she had sent and that he had moved from Hampstead to
Ocean City, Maryland. Attorney Miller apprised the Orphans’ Court for Carroll County
(“Orphans’ Court”) of this information. Charles Wingler also stated he was not interested
in becoming the personal representative of the Estate and that he had personal property
4
stored in an outbuilding located on the decedent’s property that he needed to collect. Since
there was also property in the outbuilding that belonged to one of the decedent’s friends,
Wilking wanted to be present when Charles Wingler came to claim his property. Charles
Wingler agreed to coordinate a time with Wilking to retrieve his property but never did.
Instead, he went to the decedent’s real property when Wilking was not present and was
unable to collect his personal belongings. In September 2011, Attorney Miller sent Charles
Wingler a letter informing him that if he did not make arrangements during September, the
property would be considered abandoned. Charles Wingler did not make arrangements to
claim his property during September.
No interested parties, including Charles Wingler, challenged the will and therefore,
the Estate was administered for approximately one year consistent with the terms of the
will. As personal representative, Wilking opened a bank account for the Estate and made
expenditures, including care for the decedent’s pets, payment of the decedent’s debts, and
repairs to the residential real property in preparation for its listing for sale.
The decedent’s retirement accounts were deposited with Fidelity Investments
(“Fidelity”). The decedent’s Fidelity accounts totaled $127,517.41. Around April 2011,
Fidelity notified Wilking that there had been no beneficiary designated in the accounts and
the retirement funds were paid to the Estate. However, on September 19, 2011, Fidelity
sent a letter to Wilking alerting her that a recordkeeping mistake had been made by Fidelity
and that Wilking was the beneficiary of the retirement accounts. Wilking, as personal
representative, returned the funds from the Estate to Fidelity and the funds were then sent
to Wilking in her individual capacity as the rightful beneficiary.
5
In the inventory filed on June 6, 2011, Attorney Miller and Wilking recorded the
full value of the Fidelity funds and the decedent’s value of real property at $320,700. This
value was based upon the State Department of Assessments and Taxation’s tax assessment
value as of July 1, 2011, which Attorney Miller testified was customary to use for estate
purposes.
On January 3, 2012, Attorney Miller and Wilking filed an amended inventory and
an administration account. It reported the decreased value of the Estate assets due to
Wilking being named the beneficiary on the Fidelity retirement accounts. Wilking also
reported a decrease in the real property value based upon an appraisal by Bitzel &
Associates, Inc. that concluded that the value of the dilapidated property was $130,000 and
that extensive repairs were required to bring it into suitable condition for sale. A copy of
the October 31, 2011 appraisal, which noted that the real estate needed a “gut remodel,”
and photographs of the squalid condition of the interior of the property were included in
the amended inventory.
As such, Wilking used Estate assets to pay the mortgage on the real property and to
prepare the property for sale. However, the transfer of $127,517.41 in retirement funds
from the Estate to Fidelity, and then to Wilking, had depleted the Estate account, leaving
it with insufficient funds to make the necessary repairs. After informing the Orphans’
Court, Wilking offered to purchase the property from the Estate at the reduced inventory
value. On January 30, 2012, the Orphans’ Court sent Charles Wingler an order approving
the account subject to exceptions being filed within 20 days. No exceptions were filed.
6
Also in January 2012, Attorney Miller received a call from the same assistant
Register of Wills whom she spoke with a year earlier, alerting her that the earlier
information imparted about the validity of the will was mistaken. With the will’s validity
now in question, Attorney Miller filed a petition to accept the will for administrative
probate. After conducting a hearing on March 26, 2012, the Orphans’ Court ordered that
the will be withdrawn due to the lack of two witness signatures, that the Estate proceed
intestate, and that Wilking continue as personal representative. Attorney Miller had sent
Charles Wingler a copy of the petition, and the Orphans’ Court had sent him a copy of the
hearing notice. Although he received both mailings, Charles Wingler did not attend the
hearing. Since the will was declared invalid, and the Estate was to proceed intestate,
Charles Wingler became the sole heir of the decedent’s Estate.
Powell’s Representation of Charles Wingler Begins
After the Orphans’ Court declared the will invalid, Charles Wingler met with Powell
about his sister’s Estate on April 17, 2012. Powell testified that, at this meeting, Charles
Wingler told him that he had been rebuffed in his attempts to retrieve his personal property
from the decedent’s house. According to Powell, Charles Wingler was concerned that
much of his sister’s Estate “could not be accounted for.” Powell entered his appearance on
behalf of Charles Wingler in the Estate matter the following day.
Around the same date, Powell contacted Attorney Miller via phone, introduced
himself, and requested Estate documents. On approximately April 26, 2012, Powell mailed
Attorney Miller two letters. In a May 5, 2012 response letter, Attorney Miller sent Powell
a copy of the agreement of sale for the decedent’s home, stated that the mortgage company
7
involved was Wells Fargo, and suggested that Powell contact Fidelity regarding
information concerning the beneficiary designation. Attorney Miller also indicated that if
Charles Wingler wanted to become personal representative or list the house for sale that
Wilking would be willing to resign as personal representative and terminate the agreement
of sale for the decedent’s house. Attorney Miller testified that Wilking was not in good
health and that the stress of administering the Estate was an emotional burden.
Instead of agreeing to Wilking’s offers, and thus avoiding adversarial proceedings,
Powell filed a petition with the Orphans’ Court to remove Wilking as personal
representative, for an accounting, to attach bond, set aside sale of real estate, and other
appropriate relief on May 10, 2012. In the petition, Powell alleged that Wilking first
declared the value of the decedent’s real estate to be $320,700 and then later changed its
value to $130,000. On May 17, 2012, Wilking resigned as personal representative of the
Estate and filed a petition for allowance of personal representative’s commission. Charles
Wingler opposed Wilking’s petition for allowance of personal representative’s
commission.
Charles Wingler Becomes Personal Representative of the Estate
At an August 28, 2012 hearing, the Orphans’ Court officially removed Wilking as
personal representative of the Estate, appointed Charles Wingler as the successor personal
representative, and directed Wilking to file a final accounting within thirty days.4 Also at
4
Wilking filed the final accounting within the deadline which the Orphans’ Court
approved. Powell and Charles Wingler were sent copies of the accounting and Orphans’
Court order and filed no exceptions.
8
this hearing, Powell offered evidence of Wilking’s alleged wrongdoing in her handling of
the decedent’s Estate. Powell presented the testimony of a real estate broker who believed
that the property value of the decedent’s residence was between $200,000 and $250,000 as
of May 2012. The real estate broker also admitted that, in estimating the property’s value,
he did not go inside the property and that the valuation was based on a projection that the
house would be improved.
On October 9, 2012, Powell took control and possession of the decedent’s Estate
and approved the sale of the real property for $180,000 to a different buyer. By the time
the property had been sold, a new roof and new windows had been installed.
Powell then submitted an amended inventory to the Orphans’ Court on January 29,
2013. The Orphans’ Court found this filing deficient in many ways. The inventory
submission provided no documentation supporting the values of the listed Estate property.
Instead of listing $180,000 as the sales price of the decedent’s real property, Powell wrote
“contract for sale of estate . . . Appraiser testified to a higher value before gaining access
and finding that kitchen and both bathrooms had been removed.” Powell failed to
acknowledge that the real property was encumbered by a $110,000 mortgage.
Additionally, Powell neglected to list jewelry in the inventory even though Powell later
admitted that Wilking turned over a box of jewelry and Powell had it appraised on August
29, 2012. Additionally, a copy of the appraisal was not submitted with the inventory either.
According to the inventory submitted by Powell, the net value of the Estate after the sale
of real estate was approximately $68,700.
9
Powell also took control over the Estate’s funds on approximately October 9, 2012.
Instead of depositing the approximately $70,000 in Estate funds into an account in the
name of the Estate, Powell deposited the funds into his attorney trust fund account at BB&T
Bank (“BB&T”). In October and December 2012, Powell disbursed $29,000 to Charles
Wingler through checks titled “Advancement on Estate Distribution” and “Advance on
Bequest.” Prior to filing an inventory, accounting, or petition for attorney’s fees, Powell
began issuing checks to himself which included references to the decedent’s Estate. Other
than a $121 check issued for court costs, the remainder of the Estate assets, approximately
$40,000, was disbursed to Powell in checks that specifically referenced work he performed
on behalf of the Estate.
Powell’s Lawsuit against Wilking
Although Charles Wingler had not filed any exceptions to the various Orphans’
Court orders throughout the estate administration process, Powell filed a separate civil
action in the Circuit Court for Carroll County on February 1, 2013. In this action, Powell,
on behalf of Charles Wingler as an individual and as personal representative of the Estate,
named Wilking and NGM Insurance Company (“NGM”)5 as defendants. The lawsuit
alleged that Wilking engaged in acts of self-serving misconduct and breach of fiduciary
duty which caused the Estate to lose $350,000. Attorney Miller, on behalf of Wilking,
filed a motion for summary judgment on October 1, 2013. Following a hearing, the circuit
court granted summary judgment in favor of Wilking on November 21, 2013.
5
NGM had issued a nominal bond in the Estate as required at the time of Wilking’s
appointment as personal representative.
10
Attorney Miller then filed a motion for sanctions against Powell and Charles
Wingler on April 4, 2013, alleging that the civil action was brought in bad faith and without
substantial justification. The circuit court granted the motion for sanctions, awarding
Wilking and NGM approximately $50,000, jointly and severally. Charles Wingler then
moved to alter or amend the judgment. In an unreported opinion, the Court of Special
Appeals held that the circuit court “was not clearly erroneous in finding that Mr. Wingler
lacked substantial justification to bring and maintain this case” and that the circuit court
“did not err in awarding costs and fees under Rule 1-341 to Mrs. Wilking and NGM.”
Wingler v. Wilking, No. 1845, Sept. Term, 2015, 2016 WL 6988477, at *7 (Md. Ct. Spec.
App. Nov. 29, 2016).
Powell Fails to Comply with Deadlines
Following the initiation of the lawsuit against Wilking, Powell filed a notice and
request in the Orphans’ Court on March 15, 2013 to request additional time before filing
an interim account. Specifically, Powell argued that Charles Wingler was obligated to
pursue the lawsuit in order to recover estate assets. The Orphans’ Court agreed to extend
the deadline until September 13, 2013. Notably, Powell’s March 15, 2013 filing did not
include a request to authorize the payment of attorney’s fees.
However, Powell failed to file the administrative account by the September 13, 2013
deadline and the Orphans’ Court issued another show cause order on October 15, 2013.
Powell responded to this order and requested an extension which was granted, and the
deadline was extended until May 6, 2014. Despite the second extension, Powell did not
11
file an administrative account by the May 6, 2014 deadline and on May 20, 2014, the
Orphans’ Court issued another show cause order.
The Orphans’ Court held a hearing on October 7, 2014 to address the missed
deadlines. At the hearing, Charles Wingler and Powell consented to Wilking receiving
$5,000 as commission for her tenure as personal representative contingent on $5,000
remaining in Estate funds after payment of expenses. That same day, the Orphans’ Court
issued an order directing Charles Wingler and Powell to file an administrative account by
November 7, 2014. In its order, the Orphans’ Court explicitly requested that the
administrative account detail the necessity of a trip to Florida6 and that a petition for
attorney’s fees be filed with the administrative account detailing the amount of Estate
money paid to Powell thus far. The Orphans’ Court also requested that Powell and
Attorney Miller prepare a joint proposed order detailing the payment of fees and
commissions associated with the removal of Wilking as personal representative.
Powell filed a petition for attorney’s fees and a consent to payment of attorney’s
fees, signed by Charles Wingler, on approximately October 22, 2014. The petition for
attorney’s fees listed “Legal fees (see Petition filed October 22, 2014-161 hours $60,375.00
(pending) Fees advances….$40,000.00” and “Litigation expenses see itemization filed
6
During the evidentiary hearing, Powell testified that he was directed by Charles Wingler
to travel to Florida in May 2013 to interview Margaret Smith (“Smith”) who lived with the
decedent at the time of her death. Powell believed Smith could potentially serve as a
witness in the civil action. During this visit, Smith gave Powell a tanzanite ring which had
purportedly been given to her by the decedent.
12
October 22, 2014….. $1,378.06.” The filing fee for the circuit court lawsuit and the costs
for the Florida trip were included in this amount.
In a November 4, 2014 letter, Attorney Miller informed the Orphans’ Court that
Powell was not cooperating in preparing or submitting the joint proposed order detailing
the payment of fees for the removal of Wilking as personal representative. Powell neither
signed the order prepared by Attorney Miller nor cooperated in the preparation of the
proposed joint order, which the Orphans’ Court adopted.
By November 25, 2014, Powell had still not complied with the Orphans’ Court’s
October 7, 2014 order to file an administrative account. As such, the Orphans’ Court issued
a new show cause order on that day directing Powell to comply with the previous order by
December 1, 2014. The Orphans’ Court also alerted Powell that any petition for attorney’s
fees would not be considered until Powell complied with the October 7, 2014 order. Powell
failed to comply with the extended deadline of December 1, 2014.
Powell filed a first administration account on December 9, 2014, which showed that:
the Estate was valued at $71,539.88; Powell had billed the Estate for one hundred and
sixty-one hours totaling $60,375; Powell had already collected $40,000 of those legal fees;
and Charles Wingler had been advanced approximately $29,000 from the Estate. The
Orphans’ Court, on December 22, 2014, denied attorney’s fees and ordered Powell and
Charles Wingler to return the $40,000 and $29,000, respectively, back to the Estate.
Powell then noted an appeal to the Circuit Court for Carroll County. An attorney
for the Orphans’ Court filed a motion for summary judgment with the circuit court which
was granted.
13
On December 13, 2016, the Orphans’ Court found that Charles Wingler willfully
disregarded court orders, removed him as personal representative, and appointed a
successor personal representative, Gary Desper. Powell and Charles Wingler were ordered
to turn over the assets and records of the Estate by December 27, 2016. The Orphans’
Court also ordered a contempt fine of $6,300 be imposed against Powell and Charles
Wingler if the assets were not turned over by December 27, 2016. Powell wrote to Desper
on December 16, 2016, stating that it was unlikely that he would turn over the Estate assets
and records by the deadline because he would be travelling out of the state. In an exchange
of correspondence, Desper noted in a January 24, 2017 letter to Powell that he had still
“not received anything from [Powell].” In a January 27, 2017 letter, Powell relayed to
Desper that “the [E]state has no assets with the exception of a single ring” and that there
were “no assets to ‘turnover’ to [Desper].” In later correspondence, Powell wrote to Desper
on April 12, 2017, stating that the files he maintained for the Estate had been destroyed
when a hot water pipe in his office burst. In this letter, Powell also offered to return the
tanzanite ring given to him by Smith.
Neither Powell nor Charles Wingler delivered any Estate funds or property to
Desper. Additionally, neither Powell nor Charles Wingler provided a complete and
accurate accounting of the Estate nor have Wilking’s commissions been paid.
Powell’s Management of Attorney Trust Accounts
Bar Counsel received notice of overdraft transactions in Powell’s trust and escrow
accounts on February 4, 2016. Charles Miller (“Investigator Miller”) was assigned by Bar
Counsel to investigate the accounts.
14
The notice received by Bar Counsel stated that on December 16, 2015, three checks
totaling over $4,000 were presented to the bank at which time the balance in Powell’s
attorney trust account was approximately $563. On February 10, 2016, Bar Counsel sent
Powell a letter notifying him of the overdraft and requested an explanation for the checks
being dishonored. Powell responded to the inquiry on approximately February 24, 2016,
stating that BB&T, his attorney trust account’s bank, had informed him on an unspecified
date that there was a zero balance in the account. Powell asserted that he knew the account
did not have a zero balance and believed that BB&T had made a mistake. Having concerns
about BB&T, Powell told Bar Counsel that he intended to close his BB&T account and
withdraw “the entire balance” except for the $563. Powell stated that he placed the
withdrawn funds into an attorney trust account at PNC Bank (“PNC”) then reissued the
checks dishonored by BB&T. Although he stated that he would close his BB&T account,
Powell continued using this account for client-related transactions after this incident.
During Bar Counsel’s investigation, Powell provided a sworn statement and
financial records. Bar Counsel obtained BB&T and PNC records pursuant to subpoenas,
and Investigator Miller provided spreadsheets summarizing the financial activity on the
attorney trust accounts. Powell acknowledged that he kept personal funds in both the
BB&T and PNC accounts.
Investigator Miller was able to trace the cause of the overdraft to Powell’s
withdrawal and subsequent deposit of $222,000 from the BB&T account to the PNC
15
account on December 11, 2015.7 Powell asserted that the PNC account had been inactive
for some time because the account was inconvenient for him to use. According to Powell,
the balance in the PNC account prior to the $222,000 deposit was solely his own money.
Investigator Miller also summarized the records for the BB&T account from April
30, 2012 to December 31, 2015 and the PNC account from September 2015 to April 2016.
While Investigator Miller was able to identify and correspond certain disbursements and
deposits, the disbursements and deposits he could not match he labeled as “unknown.” At
the evidentiary hearing, Powell alleged that the proceeds of the sale of a piece of real
property titled in the name of his wife comprised approximately $150,000 of the $222,000
sum. Powell did not indicate that his wife was his client. The $150,000 amount was
deposited on October 20, 2015 into the BB&T account. According to Powell’s sworn
statement, he deposited this sum into his BB&T attorney trust account because he “didn’t
want to show the money on a general account as income.” Powell later clarified that he
made the deposit to avoid the scrutiny of the Internal Revenue Service because the money
“was not income.” Powell later used the $150,000 to acquire a personal annuity.
Investigator Miller detected other transactions made to or from Powell’s BB&T
account unrelated to client matters. Making multiple deposits, Powell placed money from
Elaine Blum, his wife’s cousin, into the trust account on behalf of his wife. Powell
confirmed that Elaine Blum was not a client. When questioned why he did this, Powell
7
Before withdrawing $222,000 out of his BB&T account, Powell did not review his BB&T
account or his law firm’s records to determine whether there were any outstanding checks
greater than $500. Powell also stated that the amount left in the account, $563, was
“arbitrary.”
16
answered that “there was no where else to put it at the time without declaring it as income.”
The deposits were made between March 13, 2014 and December 15, 2014 and totaled
$41,000.
Powell provided a ledger to Bar Counsel which identified a December 29, 2015
BB&T deposit in the amount of $2,608 identified as “IRA.” Powell, in his sworn
statement, stated that this was a required distribution from his Individual Retirement
Account. Powell explained that he placed this money in his trust account “so [he] didn’t
have to have the issues with it looking like income when it wasn’t income because it was
already my money.”
Additionally, Investigator Miller questioned Powell about a June 9, 2014 BB&T
deposit in the amount of $3,750 from Jared Bierer. Powell explained that Bierer was not a
client but instead was his step-son. Powell stated that these funds were for damage to
carpets caused by a malfunctioning washing machine. In his sworn statement, Powell
explained: “he was going through a divorce and had issues . . . we wanted to keep [the
$3,750] out of the [divorce] case.” While Powell provided ledgers documenting the Bierer
transactions, there were other account discrepancies including a $500 transaction which
had not been deposited and another transaction recorded as $1,000 when it was actually
$800.
An additional $10,000 of the $220,000 deposit was credited to client matters
identified by Powell which had not been disbursed prior to December 11, 2014.
Investigator Miller identified multiple instances, involving clients “Constance Benny,”
“Audra Bond,” and “Bonneville,” in which Powell disbursed funds from the trust account
17
prior to depositing funds related to the disbursements. Additionally, Investigator Miller
discovered a check written on the BB&T account for which no corresponding client ledger
was provided. This $2,375 check was written payable to James J. Farley on February 28,
2014 and referenced “Ivan Benson.” Powell never provided a ledger card for a client
named Ivan Benson.
Investigator Miller calculated the total amount of the unattributable disbursements
made to Powell as $78,108.08. These disbursements took the form of both checks payable
to Powell and checks written to cash. Powell asserted that he deposited $10,000 of his own
money into the account when it was first opened and that he allowed funds, such as
reimbursements for advanced costs, to accumulate in the account as the rationale for
approximately $70,000 of the unaccounted balance
During Powell’s representation of Charles Wingler, Powell took possession of
financial assets of the decedent’s Estate, totaling approximately $70,000, and deposited
these funds into his BB&T account on approximately October 9, 2012. While Powell did
produce a client ledger card labeled “Wingler,” it did not include the deposits or
disbursements made in 2012 nor did it itemize the amounts disbursed from those funds.
Finally, when Investigator Miller asked Powell to provide his trust accounts’ monthly
reconciliation reports, Powell did not respond.
Standard of Review
In an attorney discipline proceeding, this Court reviews for clear error a hearing
judge’s findings of fact, and reviews without deference a hearing judge’s conclusions of
law. See Md. R. 19-741(b)(2)(B) (“The Court [of Appeals] shall give due regard to the
18
opportunity of the hearing judge to assess the credibility of witnesses.”); Attorney
Grievance Comm’n v. Chanthunya, 446 Md. 576, 588 (2016) (“This Court reviews for
clear error a hearing judge’s findings of fact.” (Citations omitted)); Md. R. 19-741(b)(1)
(“The Court of Appeals shall review de novo the [hearing] judge’s conclusions of law.”).
This Court determines whether clear and convincing evidence establishes that a lawyer
violated an MLRPC. See Md. R. 19-727(c) (“Bar Counsel has the burden of proving the
averments of the petition [for disciplinary or remedial action] by clear and convincing
evidence.”).
If exceptions to the findings of fact are filed, the Court “shall determine whether the
findings of fact have been proved by the requisite standard of proof set out in Rule 19-
727(c).” Md. R. 19-741(b)(2)(B); Attorney Grievance Comm’n v. Mahone, 435 Md. 84,
104 (2013).
DISCUSSION
A. Exceptions to the Hearing Judge’s Findings of Facts
Bar Counsel does not except to any of the hearing judge’s findings of fact. Powell
notes several exceptions to the hearing judge’s factual findings.
First, Powell excepts to the hearing judge’s finding that the Estate “had assets
consisting of bank accounts, two (2) different retirement accounts, real estate that had been
the Decedent’s residence/home, and the personal property contained therein.” Without
citation or reference to the record, Powell contends that the Estate “also contained three
automobiles, jewelry, and additional personal property.” The hearing judge’s use of
“personal property contained therein” clearly intended to include personal property on or
19
within the decedent’s real property. The entirety of Powell’s stated exception is personal
property found on or within the decedent’s property. Additionally, the hearing judge
specifically refers to automobiles and jewelry when discussing Estate assets later in the
findings of facts. The hearing judge did not commit clear error, and the exception is
overruled.
Similarly, Powell excepts to the hearing judge’s finding that the amended inventory
was “detailed, itemized and supported by documentation.” Powell asserts that this is
incorrect because the amended inventory “failed to note the existence of any jewelry or the
value of any vehicles.” In support, Powell points to Charles Wingler’s testimony that
Wilking gave him a “small box of jewelry” and that the decedent “had substantially more
jewelry” and “owned three cars at the time of her death.” Additionally, Powell states that
he testified “as to the existence of a diamond/tanzanite ring recovered on behalf of the
Estate.”
Powell is again mistaken. Found in Schedule C (tangible personal) of both the
inventory and amended inventory, Attorney Miller clearly listed two automobiles and
detailed the vehicles’ makes, models, and values. Additionally, in the first administrative
account, Attorney Miller apprised the Orphans’ Court and Charles Wingler that the “Honda
CRV [had been] sold for the appraisal value and the proceeds [had been] deposited to the
Estate account.” As for Powell’s contention about the decedent’s jewelry, the first
administrative account stated that “personal property bequeathed to individuals by Ms.
Wingler not appearing on the Inventory was damaged by the effects of hoarding and misuse
and [is] of no value. Nevertheless, this property was distributed in accordance with Ms.
20
Wingler’s Will.” Importantly, Charles Wingler did not file any exceptions to this first
administrative account.8 As such, the finding of the hearing judge was not clear error in
describing the amended inventory as “detailed, itemized and supported by documentation,”
and Powell’s exception is overruled.
Next, Powell excepts to the hearing judge’s finding, which Powell argues, “implies
that [Attorney] Miller only learned of issues regarding the validity of the will in January
2012” even though “[Attorney] Miller testified that she had concerns about the validity of
the will upon first viewing it and during the several months before the will was invalidated
by the Orphan[]s’ Court.” Powell’s contention is incorrect. The finding states that “[i]n
January 2012, [Attorney] Miller received a call from the Register of Wills Office informing
her that the information earlier imparted about the Will (i.e., that it was valid) was
mistaken.” “The information” imparted was discussed earlier in the findings when the
hearing judge wrote that “[Attorney] Miller had concerns about the validity of the
handwritten will” at the beginning of her representation of Wilking “but based on
communications she had with an assistant Register of Wills for Carroll County on April 1,
2011, [Attorney Miller] filed the Will along with other necessary documents, and the
handwritten Will was admitted for probate.” Quite clearly, the findings taken together
show that Attorney Miller had concerns about the validity of the will but still filed the will
8
The last line of the decedent’s will states “I want Meghan [Wilking, Stephanie’s minor
daughter] to have all of my jewelry.” After Charles Wingler replaced Wilking as personal
representative, Charles Wingler testified that Stephanie Wilking “turned over a small box
of jewelry.” The jewelry was later appraised to be worth less than $500.
21
based upon communication with the assistant Register of Wills. The hearing judge’s
finding was not clear error and Powell’s exception is overruled.
Finally, Powell excepts to the hearing judge’s finding that “[a]s of [October 7,
2014], [Powell] still had not filed a fee petition with the Orphans’ Court.” Powell argues
that he did file “a fee petition with the Orphans’ Court; however, the Orphan[]s’ Court
rejected that petition.” As noted later in the hearing judge’s findings though, Powell first
filed “[o]n or about October 22, 2014, a Petition for Attorney Fees.” The hearing judge’s
finding was not clear error because October 22, 2014 is a date later than October 7, 2014.
As such, Powell’s exception is overruled.
B. Exceptions to the Hearing Judge’s Conclusions of Law
Bar Counsel excepts to the hearing judge’s failure to find that Powell’s conduct,
taken as a whole, violated Rule 8.4(d). Based upon our independent review of the record
as discussed below, we sustain Bar Counsel’s exception as to Rule 8.4(d) and uphold the
rest of the hearing judge’s conclusions of law.
Rules 1.1, 1.3, 3.3, and 3.4
Rule 1.1 requires that an attorney “provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.” Rule 1.3 requires that a lawyer
must also “act with reasonable diligence and promptness in representing a client.” Conduct
which violates Rule 1.1 will often also violate Rule 1.3. See Attorney Grievance Comm’n
v. McCulloch, 404 Md. 388, 398 (2008). The hearing judge found that “there was clear
and convincing evidence that [Powell]’s representation of Charles Wingler, Personal
22
Representative of the Estate of Charlene Wingler, did not demonstrate the skill,
thoroughness and preparation reasonably necessary for the representation,” violating Rules
1.1 and 1.3.
Rule 3.3(a) states that an attorney must not “make a false statement of fact or law to
a tribunal.” Rule 3.4(c) requires that a lawyer not “knowingly disobey an obligation under
the rules of a tribunal except for an open refusal based on an assertion that no valid
obligation exists.”
Powell’s conduct provides overwhelming evidence of wrongdoing. Powell did not
file timely exceptions to the second and final accounting of the personal representative of
the Estate and failed to submit a timely, complete, and accurate inventory of the Estate’s
assets and administrative account. For example, in the January 29, 2013 inventory, Powell
failed to itemize jewelry given to him by Wilking, the previous personal representative.
Powell also failed to submit a petition for personal representative’s commissions and
attorney fees that was acceptable to the Orphans’ Court. When alerted to the fact that
various legal documents were incomplete or overdue, Powell failed to correct the
deficiencies and ignored multiple Orphans’ Court orders. Specifically, Powell’s failure to
return the $40,000 he improperly took from the Estate resulted in multiple orders from the
Orphans’ Court. There is no evidence that Powell’s refusal to honor the orders directing
him to return the money to the Estate was based on an assertion that no valid obligation
existed. Instead, Powell’s argument was that the Orphans’ Court orders were an attempt
to ensure that Wilking received her $5,000 commission as personal representative of the
Estate.
23
Powell did not provide competent representation nor did he act with reasonable
diligence on behalf of Charles Wingler. Additionally, described in more detail infra,
Powell failed to manage his attorney trust account with requisite skill and thoroughness.
Also, Powell’s inventory submissions failed to accurately list all Estate assets. Finally,
Powell’s noncompliance with the orders of the Orphans’ Court was not justified. Simply
because Powell disagreed with an Orphans’ Court determination about a personal
representative’s commission does not excuse his noncompliance with a legal order.
Therefore, we agree with the hearing judge that clear and convincing evidence exists to
conclude that Powell’s conduct violated Rules 1.1, 1.3, 3.3(a), and 3.4(c).
Rules 1.5 and 1.7
Rule 1.5(a) requires that an attorney shall not make an agreement for, charge, or
“collect an unreasonable fee.” Rule 1.5(a) lists factors a court must consider when
determining whether a fee was reasonable:
(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 attorney;
(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 attorney or attorneys
performing the services; and
(8) whether the fee is fixed or contingent.
As discussed previously, Powell billed $60,375, and disbursed $40,000 to himself,
for legal services in handling an Estate with cash assets of approximately $70,000. In his
exceptions, Powell asserted that “Mr. Wingler approved Mr. Powell’s fees and expenses,”
24
that Powell “would always obtain Mr. Wingler’s permission prior to advancing himself
any fees,” and that Mr. Wingler “believed that Mr. Powell earned his fees.” While Charles
Wingler may have agreed to these fees, we must evaluate the reasonableness of the fees in
conjunction with the factors found above. Here, Powell sought fees greater than 80% of
the Estate’s net assets and his recovered attorney’s fees account for more than half of the
Estate’s value. Also, due to Powell’s lack of representation and competence, Charles
Wingler has had judgments levied against him, individually, as personal representative,
and as the sole heir of the Estate.
Additionally, Powell’s fee arrangement violated Maryland Code, Estates and Trusts
Article (“ET”) § 7-604, which states that attorney’s fees and commissions may only be
made without Orphans’ Court approval if all interested persons consent in writing and if
the combined sum of commissions and fees do not exceed the limitations spelled out in ET
§§ 7-601 and 7-602. Under ET § 7-601, the maximum fees and commissions allowed in
this case without a petition to the Orphans’ Court was $3,810.05.9 As such, Charles
Wingler’s consent was insufficient to authorize the disbursement of commissions by
Powell in the absence of Orphans’ Court approval. Additionally, Powell violated ET § 7-
602(b) because he retained Estate funds as attorney’s fees before he filed a petition for
attorney’s fees with the Orphans’ Court. Clear and convincing evidence supports the
hearing judge’s conclusion that Powell violated Rule 1.5(a). See Attorney Grievance
Comm’n v. Kendrick, 403 Md. 505–510 (2008).
9
ET § 7-601(b) allows commissions to be collected up to 9% of the first $20,000 of the
Estate’s net value and 3.9% of the remainder.
25
Generally, lawyers are not allowed to represent a client if the representation results
in a conflict of interest. Rule 1.7 specifically states that a conflict of interest exists if “there
is a significant risk that the representation of one or more clients will be materially limited
by the lawyer’s responsibilities to another client, a former client or a third person or by a
personal interest of the lawyer.” (Emphasis added). In the lawsuit, the circuit court found
Powell and Charles Wingler jointly and severally liable for the defendants’ attorney’s fees
and court costs. When this judgment was levied, a conflict of interest was created between
Powell and Charles Wingler. As Charles Wingler and Powell were found jointly and
severally liable, Powell’s incentive was to lessen his liability, which would increase
Charles Wingler’s obligation. Additionally, there is no evidence in the record that Charles
Wingler gave his informed consent to the conflict in writing or otherwise. Based upon the
hearing judge’s findings of fact, we conclude that there is clear and convincing evidence
that Powell’s conduct violated Rule 1.7.
Rules 3.1 and 4.4
Rule 3.1 requires that an attorney not “bring or defend a proceeding, or assert or
controvert an issue . . . unless there is a basis for doing so that is not frivolous.” Here, even
though Estate proceedings were still active in the Orphans’ Court, Powell commenced a
lawsuit in the circuit court. The lawsuit claimed that Wilking committed acts of
misconduct in her role as personal representative. The circuit court granted the defendants’
motions for summary judgment and motions for sanctions, holding Powell and Charles
Wingler jointly and severally liable for the Wilking’s legal fees plus costs. In its ruling,
the circuit court found that Powell failed to file objections or exceptions to Wilking’s June
26
7, 2011 inventory, January 3, 2012 amended inventory, or the July 20, 2014 amended
inventory or to Wilking’s first and second administration accounts. Because of Charles
Wingler’s (and Powell’s) failure to file exceptions, the circuit court held that all but one
issue complained of in the lawsuit were barred. For the remaining issue as to whether
Charles Wingler had substantial justification for suing Wilking for breach of her fiduciary
duty related to the sale of the Estate real estate, the circuit court found that the “filing of
the instant lawsuit . . . was without substantial justification.” The hearing judge was careful
to note that he made his own findings and conclusions and did not rely on the findings of
the circuit court judge who presided over the lawsuit. See Attorney Grievance Comm’n v.
Alison, 349 Md. 623, 635 (1998). There is clear and convincing evidence that Powell’s
conduct violated Rule 3.1(a).
Rule 4.4(a) requires that, while representing a client, an attorney not use “means
that have no substantial purpose other than to embarrass, delay, or burden a third person,
or use methods of obtaining evidence that violate the legal rights of such a person.” As
detailed previously, an Orphans’ Court order stated that Wilking was entitled to $5,000 as
the commission for her tenure as personal representative of the Estate. Powell believed
that Wilking was not entitled to this commission even though Powell, on behalf of his
client, entered into a consent order detailing the amount of Wilking’s commission. In his
testimony, Powell admitted that he consented to Wilking’s commission because he knew
that the Estate would not have enough money to pay the commission after the Estate paid
the inheritance to the sole beneficiary and Powell’s attorney’s fees. As such, Powell
acknowledged that he misled both the Orphans’ Court and Wilking into believing that
27
Wilking would be compensated and that there would be remaining Estate funds to pay her
commission. Powell’s deceptive action has continually burdened Wilking and her efforts
to receive her commission. There is clear and convincing evidence that Powell’s conduct
violated Rule 4.4(a).
Rules 8.1 and 8.4
Rule 8.1(b) requires that a lawyer involved in a disciplinary matter must not “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 . . . .” The hearing judge found that Powell “failed to
provide all the documents requested by Bar Counsel during the investigation following the
overdraft notice on his trust/escrow account.” Specifically, Powell was asked by
Investigator Miller “to provide reconciliation reports, and in response, [Powell] indicated
that these reports were being maintained, but he never produced them.” As such, clear and
convincing evidence supports the hearing judge’s conclusion that Powell violated Rule
8.1(b).
Rule 8.4(a) states that it is professional misconduct for an attorney to “violate . . .
the Maryland Lawyers’ Rules of Professional Conduct.” The hearing judge found that
because Powell has violated multiple Rules, there is clear and convincing evidence that
Powell’s conduct has violated Rule 8.4(a). Since we have concluded that Powell has
violated multiple Rules, we agree that Powell has violated Rule 8.4(a).
A lawyer violates Rule 8.4(c) if the lawyer “engage[s] in conduct involving
dishonesty, fraud, deceit or misrepresentation.” The hearing judge found that Powell was
28
“dishonest” and “disingenuous” when he stated that his inability to repay was why he
refused to return $40,000. As detailed by Investigator Miller, Powell was in possession of
$60,000, for which Powell had no explanation, as of December 11, 2015. Powell asserted
that he deposited $10,000 of his own money into the attorney trust account when it was
first opened and that he allowed funds, such as reimbursements for advanced costs, to
accumulate in the account, growing to approximately $70,000. Clear and convincing
evidence shows that Powell could have returned funds to the Estate by disbursing personal
funds that were deposited in his various trust accounts. As such, Powell’s conduct violated
8.4(c).
Under Rule 8.4(d), it is professional misconduct for a lawyer to “engage in conduct
that is prejudicial to the administration of justice.” Since the hearing judge found Powell’s
interactions with the Orphans’ Court “repeatedly dishonest, disingenuous, and not candid”
and because Powell impermissibly commingled personal funds with his attorney trusts
accounts over a long period of time, Bar Counsel argues that Powell’s conduct violated
Rule 8.4(d). “Generally, a lawyer violates MLRPC 8.4(d) where the lawyer’s conduct . . .
would negatively impact the perception of the legal profession of a reasonable member of
the public[.]” Attorney Grievance Comm’n v. Marcalus, 442 Md. 197, 205 (2015). A
reasonable person’s perception of the legal profession would be negatively affected by
learning that Powell, a lawyer, engaged in “dishonest” and “disingenuous” behavior with
a tribunal and mixed client funds with personal assets. As such, we sustain Bar Counsel’s
exception and conclude that Powell’s conduct violated Rule 8.4(d).
Rule 1.15 and Maryland Rules 19-407, 19-408, and 19-410
29
Maryland Rule 19-407 states:
(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:
(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 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 19-
408(b).
Powell did not retain and maintain complete and accurate records of both his personal
money held in the trust accounts or the identity of all deposited client funds. Powell also
did not maintain reconciliation reports or refused to produce them to Bar Counsel. For
30
these reasons, clear and convincing evidence exists to conclude that Powell’s conduct
violated Maryland Rule 19-407.
Maryland Rule 19-408 requires that:
(a) General Prohibition. An attorney or law firm may deposit in an attorney
trust account only those funds required to be deposited in that account by
Rule 19-404 or permitted to be so deposited by section (b) of this Rule.
(b) Exceptions.
(1) An attorney or law firm shall either (A) deposit into an attorney
trust account funds to pay any fees, service charges, or minimum
balance required by the financial institution to open or maintain the
account, including those fees that cannot be charged against interest
due to the Maryland Legal Services Corporation Fund pursuant to
Rule 19-411(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.
Rule 1.15(a) requires that attorney “hold property of clients or third persons that is in an
attorney’s possession in connection with a representation separate from the attorney’s own
property,” that “[f]unds shall be kept in a separate account maintained pursuant to Title 19,
Chapter 400 of the Maryland Rules, and records shall be created and maintained in
accordance with the Rules in that Chapter,” and that “[c]omplete records of the account
31
funds and of other property shall be kept by the attorney and shall be preserved for a period
of at least five years after the date the record was created.”
Powell disbursed attorney’s fees to himself before the Orphans’ Court granted his
petition for attorney’s fees. Powell deposited and maintained personal funds in his trust
account well in excess of the amount needed for fees to maintain the account and failed to
promptly withdraw funds to which he was entitled. See Attorney Grievance Comm’n v.
Smith, 457 Md. 159, 200 (2015) (holding that an attorney’s use of a trust account for
personal expenses and allowing the account to fall out of balance violated Rule 1.15(a)).
While it may have been Powell’s established tradition to leave fees earned in his trust
account, Powell also admitted to allowing his trust account to be used to avoid Internal
Revenue Service detection. For these reasons, we conclude that there is clear and
convincing evidence that Powell violated Rule 1.15(a) and Maryland Rule 19-408.
Maryland Rule 19-410 holds that:
(a) Generally. An attorney or law firm may not borrow or pledge any funds
required by the Rules in this Chapter to be deposited in an attorney trust
account, obtain any remuneration from the financial institution for depositing
any funds in the account, or use any funds for any unauthorized purpose.
(b) No Cash Disbursements. An instrument drawn on an attorney trust
account may not be drawn payable to cash or to bearer, and no cash
withdrawal may be made from an automated teller machine or by any other
method. All disbursements from an attorney trust account shall be made by
check or electronic transfer.
(c) Negative Balance Prohibited. No funds from an attorney trust account
shall be disbursed if the disbursement would create a negative balance with
regard to an individual client matter or all client matters in the aggregate.
Powell used Estate funds to pay himself attorney’s fees when neither he nor his client was
authorized to decide or allow this to occur. Additionally, Powell made cash disbursements
32
and disbursed funds from his attorney trust account which created a negative balance. For
these reasons, we conclude, as the hearing judge did, that Powell’s conduct violated
Maryland Rule 19-410.
SANCTION
As we have often stated, the purpose of attorney disciplinary proceedings is to
protect the public and deter other lawyers from engaging in misconduct rather than simply
to punish the lawyer. Attorney Grievance Comm’n v. Mollock, 450 Md. 133, 158 (2016).
The public is protected when sanctions are “commensurate with the nature and gravity of
the violations and the intent with which they were committed.” Attorney Grievance
Comm’n v. Pennington, 387 Md. 565, 596 (2005) (citing Attorney Grievance Comm’n v.
Ellison, 384 Md. 688, 714 (2005)). This Court has established standards to weigh the
severity of an attorney’s misconduct.10
10
In determining an appropriate sanction for a lawyer’s misconduct, this Court considers:
(1) the MLRPC that the lawyer violated; (2) the lawyer’s mental state; (3)
the injury that the lawyer’s misconduct caused or could have caused; and (4)
aggravating factors and/or mitigating factors.
Aggravating factors include: (1) prior attorney discipline; (2) a
dishonest or selfish motive; (3) a pattern of misconduct; (4) multiple
violations of the MLRPC; (5) bad faith obstruction of the attorney discipline
proceeding by intentionally failing to comply with rules or orders of the
disciplinary agency; (6) submission of false evidence, false statements, or
other deceptive practices during the attorney discipline proceeding; (7) a
refusal to acknowledge the misconduct’s wrongful nature; (8) the victim’s
vulnerability; (9) substantial experience in the practice of law; (10)
indifference to making restitution or rectifying the misconduct’s
consequences; (11) illegal conduct, including that involving the use of
controlled substances; and (12) likelihood of repetition of the misconduct.
33
Bar Counsel recommended that we disbar Powell for his multiple violations of the
Rules. See Attorney Grievance Comm’n v. Levin, 438 Md. 211, 231 (2014) (holding that
when an attorney engages in intentionally dishonest conduct, disbarment will follow as a
matter of course absent compelling extenuating circumstances that justify a lesser
sanction). Additionally, Bar Counsel asserted that Powell’s conduct cannot be considered
“an isolated incident” because he had been sanctioned twice previously and his misconduct
in this case began in 2012.
Powell requested a public reprimand. In support, Powell stated that he was
“forthright” in describing to Bar Counsel his “practice for maintaining [escrow] accounts
since he began his practice in 1971.” Powell explained that he “would advance funds for
such purposes as the payment of court fees, and would keep reimbursements for those
Mitigating factors include: (1) the absence of prior attorney discipline;
(2) the absence of a dishonest or selfish motive; (3) personal or emotional
problems; (4) timely good faith efforts to make restitution or to rectify the
misconduct’s consequences; (5) full and free disclosure to Bar Counsel or a
cooperative attitude toward the attorney discipline proceeding; (6)
inexperience in the practice of law; (7) character or reputation; (8) a physical
disability; (9) a mental disability or chemical dependency, including
alcoholism or drug abuse, where: (a) there is medical evidence that the
lawyer is affected by a chemical dependency or mental disability; (b) the
chemical dependency or mental disability caused the misconduct; (c) the
lawyer’s recovery from the chemical dependency or mental disability is
demonstrated by a meaningful and sustained period of successful
rehabilitation; and (d) the recovery arrested the misconduct, and the
misconduct’s recurrence is unlikely; (10) delay in the attorney discipline
proceeding; (11) the imposition of other penalties or sanctions; (12) remorse;
(13) remoteness of prior violations of the MLRPC; and (14) unlikelihood of
repetition of the misconduct.
Attorney Grievance Comm’n v. Allenbaugh, 450 Md. 250, 277–78 (2016) (cleaned up).
34
advanced funds in his escrow account,” allowing him “to provide his client with settlement
funds several days earlier than they would otherwise receive payments.”
The hearing judge did not note any aggravating or mitigating factors. Bar Counsel
requested that we consider Powell’s prior history of disciplinary actions. On June 19, 2008,
in an action unrelated to the instant matter, Powell received a reprimand for the wrongful
disbursement of funds from his escrow account. On May 16, 2013, we reprimanded
Powell, by consent, “for preparing an instrument giving himself a substantial gift from his
client, who was not related to him and was not represented by independent counsel in
connection with the gift, and by assisting a client in conveying real property in
contravention of a court order.” Attorney Grievance Comm’n v. Powell, 431 Md. 442
(2013). Additionally, Bar Counsel noted that Powell did not cooperate with its
investigation and refused to acknowledge the wrongful nature of his conduct in spite of
having substantial experience in the practice of law. Lastly, Bar Counsel asserted that there
was a high likelihood of repeat misconduct due to his previous misconduct. In response,
Powell stated that any sanction “should take into account [his] lengthy career and his record
of public service, while also serving as a deterrent to other attorneys.”
During oral argument, Powell’s counsel argued that Powell is a “victim of
circumstances.” This characterization does not comport with the facts of this case. In this
matter, Powell brought a frivolous lawsuit, failed to file timely or complete documents with
the Orphans’ Court, made misrepresentations to the Orphans’ Court and Bar Counsel, and
repeatedly disobeyed Orphans’ Court orders, including an order to return attorney’s fees.
Additionally, Powell has previously received two reprimands for substantially the same
35
misconduct found in this matter, including mismanagement of escrow accounts. Although
we acknowledged Powell’s civic and volunteer contributions, a reprimand or suspension
would not be sufficient protect the public or serve as a deterrent to other attorneys.
For the reasons set forth in this opinion, we issued a per curiam order disbarring
Powell on June 1, 2018.
36