Attorney Grievance v. Karambelas , 473 Md. 134 ( 2021 )

Attorney Grievance Commission v. Nicholas G. Karambelas, Misc. Docket AG No. 37,
September Term, 2019. Opinion by Barbera, C.J.
ATTORNEY MISCONDUCT — DISCIPLINE — DISBARMENT
Respondent, Nicholas G. Karambelas, violated Maryland’s Rules of Professional Conduct
1.1, 1.4, 1.15, 3.3, and 8.4. Additionally, Respondent violated D.C. Rule of Professional
Conduct 1.15, and Section 10-306 of the Maryland Business Occupations and Professions
Article. These violations principally arose from Respondent’s intentionally dishonest
conduct involving the misappropriation of estate funds and various misrepresentations to
the Orphan’s Court as well as to his clients. In conjunction with several aggravating
factors, these violations warrant disbarment as the appropriate sanction for Respondent’s
misconduct.
Circuit Court for Montgomery County
Case No. 472858V
Argued: October 5, 2020
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 37
September Term, 2019
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
NICHOLAS G. KARAMBELAS
Barbera, C.J.,
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Barbera, C.J.
Filed: April 1, 2021
Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document is authentic.
2021-04-01
13:14-04:00
Suzanne C. Johnson, Clerk
On September 27, 2019, the Attorney Grievance Commission of Maryland
(“Petitioner”), acting through Bar Counsel, filed in this Court a Petition for Disciplinary or
Remedial Action (the “Petition”) against Respondent, Nicholas G. Karambelas. The
Petition was precipitated by a complaint filed against him by Adam Brandon, a beneficiary
of the estate of Ida Moss, Respondent’s former client. The Petition alleges violations under
both the Maryland Rules of Professional Conduct (“MRPC”) and the Maryland Lawyers’
Rules of Professional Conduct (“MLRPC”).1 The alleged Rules violations include: 1.1
(Competence), 1.4(a) and (b) (Communication), 1.15(a) and (d) (Safekeeping Property),
3.3(a) (Candor Toward the Tribunal), 5.5(a) (Unauthorized Practice of Law), and 8.4(a)–
(d) (Misconduct). Petitioner also alleges a violation of the District of Columbia’s Rules of
Professional Conduct (“D.C. Rule”), specifically D.C. Rule 1.15(a) and (c) (Safekeeping
Property), in effect through January 31, 2007 and as amended effective February 1, 2007.2
Petitioner further alleges that Respondent violated Section 10-306 of the Business
Occupations and Professions Article (Misuse of trust money) of the Maryland Code.
1
Effective July 1, 2005, the Maryland Rules of Professional Conduct were renamed
the Maryland Lawyers’ Rules of Professional Conduct. Petitioner invoked both versions
because Respondent’s conduct occurred both before and after the renaming of the Rules of
Professional Conduct. However, there is no substantive difference between the two. As
such, we refer to all charged violations, including those that are alleged to have occurred
prior to the renaming, by the form used in the MLRPC.
2
While Respondent’s conduct occurred during both versions of D.C. Rule 1.15,
there is no substantive difference between the two. Therefore, we shall employ in this
opinion Rule 1.15 effective February 1, 2007.
1
This Court designated the Honorable Margaret M. Schweitzer of the Circuit Court
for Montgomery County to serve as the hearing judge. The hearing was conducted on
February 24, 2020. By an email memorandum dated February 20, 2020, Respondent
informed Petitioner and the hearing judge that he could not “participate in the hearing in a
meaningful way” due to his health but was not seeking “to adjourn the hearing.” On
February 21, 2020, the court conducted a conference call on the record with Petitioner and
Respondent to clarify the contents of the emailed memorandum. Respondent confirmed
that he did not seek a continuance of the hearing but did wish to make a written submission.
On Sunday, February 23, 2020, Respondent emailed to the court and Petitioner a
Settlement Agreement from a civil matter tangentially related to the instant matter.
At the commencement of the February 24, 2020 hearing, the hearing judge
contacted Respondent via telephone. Respondent sought to have two documents admitted
at the hearing: The Settlement Agreement,3 emailed on February 23, 2020, and Section I,
“Factual Clarifications” of his Response to the Petition, initially filed on November 21,
2019. With the agreement of Petitioner, the hearing judge allowed Respondent to adopt
the “Factual Clarifications” as if submitted by affidavit and enter into evidence the
Settlement Agreement (after confidentiality was waived). These two documents comprise
the entirety of Respondent’s case. Respondent did not otherwise participate in the
proceedings.
3
As discussed further below, the Settlement Agreement admitted at the evidentiary
hearing stems from the settlement of a malpractice claim brought by the intended
beneficiaries of Respondent’s client’s estate.
2
At the hearing, the judge heard testimony from two witnesses: (1) Dennis Katz, the
grandson of Respondent’s client, Ida Moss; and (2) Alton Burton, an attorney and certified
public accountant initially hired to handle the administration of the estate of Patricia
Brandon, daughter of Ida Moss and another of Respondent’s clients. The hearing judge
issued written findings of fact and proposed conclusions of law, concluding that
Respondent had violated many of the aforementioned provisions of Maryland’s Rules of
Professional Conduct, D.C. Rule 1.15, as well as Section 10-306 of the Maryland Business
Occupations and Professions Article.
Petitioner filed no exceptions to the hearing judge’s findings of fact and proposed
conclusions of law; Respondent filed exceptions only to the mitigating factors. Respondent
recommended a public reprimand as the appropriate sanction; Petitioner recommended
disbarment.
On October 5, 2020, we heard oral argument, and on October 6, 2020, we issued a
per curiam order disbarring Respondent. Attorney Grievance Comm’n v. Karambelas, 471
Md. 96 (2020). We explain in this opinion the reasons for that action.
I.
The Hearing Judge’s Findings of Fact
We summarize below the hearing judge’s findings of fact, which are supported by
clear and convincing evidence.
3
Background
Respondent was admitted in 1980 to the Bars of New York and the District of
Columbia. He was admitted to the Maryland Bar in 1999.4 During the course of events at
issue in this case, Respondent maintained a law office in Washington, D.C., practicing
under the firm name of Sfikas & Karambelas, LLP.
Representation of Ida Moss and the Ida Moss Estate
In and about November 1996, the Respondent met and formed an attorney-client
relationship with Maryland resident, Ida Moss.5 At that time, Ms. Moss owned and resided
at a residential real property located at 7409 Helmsdale Road in Bethesda, Maryland (the
“Bethesda residence”). Ms. Moss’s adult daughter, Patricia Brandon, resided at the
4
In connection with the alleged violation of Rule 5.5 (unauthorized practice of law),
the hearing judge declined to find a violation in the light of absence of evidence in the
record that Respondent had performed legal work for Ms. Moss prior to his admission to
the Maryland Bar. Bar Counsel does not take exception to the hearing judge’s
determination as to the Rule 5.5 charge and is not further pursuing that charge. However,
Bar Counsel suggests that we take judicial notice of our own records, which reflect that
Respondent was admitted to the Maryland Bar on August 19, 1999. See Md. Rule 5-201(b)
(judicial notice may be taken of facts set forth in “sources whose accuracy cannot
reasonably be questioned”). As Bar Counsel has suggested, we take notice of that date in
the text solely for the accuracy of this opinion and not in connection with the charge that
Bar Counsel is no longer pursuing.
We provide this guidance for the benefit of future attorney disciplinary proceedings:
In the event that the date of a respondent’s bar admission is a relevant fact in such a
proceeding, Bar Counsel or the respondent should present the hearing judge with evidence
of this Court’s records of admission and suggest that the hearing judge take judicial notice
of those records during the hearing.
5
Unfortunately, the record is silent as to how the relationship between Respondent
and Ida Moss started.
4
Bethesda residence with Ms. Moss. Adam Brandon, Ms. Moss’s grandson and Ms.
Brandon’s adopted son (her biological nephew), lived at the Bethesda residence as well.
Ms. Moss also owned two commercial properties, one located in Wheaton,
Maryland (the “Wheaton property”) and another in Waldorf, Maryland (the “Waldorf
property”). Tenants occupied both properties, both of which were managed for Ms. Moss
by professional rental management companies.
The 1995 Will
Ms. Moss executed a Last Will and Testament in late 1995 (the “1995 Will”), before
Respondent began acting as her attorney. The 1995 Will was prepared by Ms. Moss’s then-
attorney, Lawrence L. Bell. The 1995 Will included cross-references to an “Amended and
Restated Ida Moss Trust Agreement” (the “1995 Trust Agreement”), a separate document
also executed by Ms. Moss in late 1995. The 1995 Trust Agreement contained amended
and restated provisions for the “Ida Moss Trust,” a revocable inter vivos trust first
established in 1987.
The 1995 Will contained instructions for the disposition of tangible personal
property and directed that Ms. Moss’s residuary estate be given to the then-serving Trustee
of the Ida Moss Trust, “to be held, administered and ultimately distributed upon the terms
and conditions and for the uses and purposes set [forth] in the [1995] Trust Agreement.”
The 1995 Will also provided for Patricia Brandon and Lawrence L. Bell, “together
or the survivor of them, to serve as Co-Personal Representatives or Personal
Representatives, as the case may be,” of Ms. Moss’s estate. The 1995 Trust Agreement
5
named Ms. Moss as Trustee during her lifetime and designated Ms. Brandon and Mr. Bell
as successor co-trustees or trustee, whatever the case, upon Ms. Moss’s “incapacity,
voluntary resignation or death.”
In December 1996, Respondent met with Mr. Bell to discuss Ms. Moss’s request
that Respondent handle all her legal affairs. At or about that time, Mr. Bell transferred Ms.
Moss’s estate planning documents, including the 1995 Will, to Respondent. That transfer
was confirmed in a letter by Mr. Bell to Respondent, dated December 20, 1996.
In March 1997, Ms. Moss executed a codicil (the “1997 codicil”) to her 1995 Will,
revoking the appointment of Mr. Bell as co-personal representative and personal
representative. In his place, Ms. Moss appointed Respondent, providing him “with all
rights, powers and duties set forth” in the 1995 Will. Respondent’s signature appears on
page two of the 1997 codicil. The hearing judge found that Respondent’s signature
confirmed his actual knowledge of the existence of Ms. Moss’s 1995 Will and related 1995
Trust Agreement.
Ms. Moss died on December 17, 2002. From November 1996 and continuing until
her death, Respondent acted as Ms. Moss’s attorney for personal and business matters. The
hearing judge found that following Ms. Moss’s death, Respondent failed to act promptly
to open an estate and to carry out Ms. Moss’s testamentary wishes as provided in her 1995
Will and the 1995 Trust Agreement.
Per the 1995 Will, after payment of debts, taxes, expenses of estate administration,
and the distribution of personal property, the entire residuary estate was to be distributed
6
to the Ida Moss Trust. The 1995 Trust Agreement stipulated that there was to be a
distribution of $30,000 in cash from the trust to Dennis Katz, Ms. Moss’s grandson. The
remaining balance of the trust fund was to be equally divided between Ms. Brandon and
Adam Brandon. The hearing judge found that Respondent failed to take any steps to
disburse the funds as specified in the 1995 Trust Agreement.
The Estate Petition, Opening of the Estate, and Respondent’s Conduct Regarding the
Estate
On January 31, 2005, more than two years after Ms. Moss’s death, Respondent filed
with the Register of Wills for Montgomery County a Regular Estate Petition for
Administration on behalf of Ms. Brandon and the estate. The petition sought the
appointment of Ms. Brandon as personal representative of the Estate of Ida Moss.
Respondent did not disclose to the Register of Wills his knowledge that a will existed, and
he did not file either the original document or the copy provided to him by Mr. Bell in
1996. Rather, Respondent checked the box that Ms. Moss died intestate, notwithstanding
his knowledge of the existence of her 1995 Will.
Respondent claimed in his Response to the Petition that he never saw the original
will, and due to Ms. Moss’s several changes to her will, he never saw the final will. The
hearing judge found Respondent’s claims unpersuasive, explaining that even if Respondent
never saw the original or final will, he was aware that the will existed because he signed
the 1997 codicil to the 1995 Will. Moreover, despite Respondent’s claims that such a will
was never under his dominion or control, the hearing judge further found that Respondent
likely knew the location of the will, or at least where a copy was located, but made no effort
7
to locate either the original or a copy. The hearing judge determined that Respondent, by
proceeding as if Ms. Moss died intestate, clearly controverted the desires of his client and
made a knowing misrepresentation to the Orphans’ Court for Montgomery County (the
“Orphans’ Court”).6
On January 31, 2005, the Register of Wills for Montgomery County opened the
Estate of Ida Moss and issued an Administrative Probate Order appointing Ms. Brandon as
personal representative. Respondent subsequently advised Ms. Brandon that it was
necessary to sell the Wheaton property to pay estate taxes. Relying on that advice, and at
Respondent’s direction, Ms. Brandon sold the Wheaton property in March 2005 for
$908,000. The net proceeds to be distributed to the Estate of Ida Moss totaled $852,305.50.
Respondent, however, did not make use of the Wheaton property sale proceeds to
pay the estate taxes. In fact, following that sale, Respondent did not open an estate bank
account or an account in the name of the Ida Moss Trust to receive the net proceeds
($852,305.50) of the sale. Instead, Respondent advised Ms. Brandon to place the funds in
his attorney trust account, which, evidently, she permitted at Respondent’s direction.
Respondent subsequently provided instructions to the settlement agent to wire the net
proceeds of the sale ($852,305.50) to his trust account at Wachovia Bank. Respondent
maintained the Wachovia account as an IOLTA account in the District of Columbia.
6
In Montgomery County, the circuit court judges serve in the capacity of the
Orphans’ Court rather than an elected panel of judges.
8
Respondent’s Acts of Misappropriation
Once the net proceeds of the sale of the Wheaton property were deposited in his
IOLTA account, Respondent began an extended course of misappropriation of the funds.
Respondent made the following transfers from his trust account to a personal bank account:
March 21, 2005, a transfer of $8,000; March 29, 2005, a transfer of $10,000; April 4, 2005,
a transfer of $13,000; and April 25, 2005, a transfer of $6,000. In addition to those
transfers, Respondent often withdrew cash and wrote several checks drawn from his trust
account to pay his personal expenses, as well as those of his daughters. Respondent utilized
the estate’s money to pay for things such as his daughters’ private school tuition, his
personal credit card bill payments, professional liability insurance policy payments, and
generous donations to charities in his name.
Respondent maintained no client matter ledger or record to keep track of those funds
entrusted to him as a fiduciary for the estate. From March 18, 2005 to August 20, 2007,
the balance of Respondent’s trust account fluctuated from deposits and disbursements
made for other clients. On August 25, 2007, Respondent made another transfer, this time
for $25,000 from the trust account to his personal account. Following that transfer, the
remaining balance in Respondent’s trust account was $1,596.04.
While misappropriating the proceeds from the sale of the Wheaton property,
Respondent occasionally issued “income” checks to Ms. Brandon between March 2005
and May 2007. Those checks, drawn from the trust account, ranged in amount from $5,000
to $6,500. There was no obvious basis or schedule for those payments. Respondent claims
9
to have made occasional cash disbursements to Ms. Brandon as well, but he provided no
records to substantiate that claim.
Actions Taken by the Orphans’ Court
In February 2006, the Orphans’ Court entered an Order to Show Cause why Ms.
Brandon should not be removed as personal representative for failure to file a timely first
account and inventory for the Estate of Ida Moss. Respondent failed to appear at the show
cause hearing on April 19, 2006, resulting in Ms. Brandon being temporarily removed as
personal representative.
On May 19, 2006, Respondent filed a motion to vacate the April 19, 2006 order,
stating that “undersigned counsel has agreed to take an active personal role in the affairs
of the Estate and to close the Estate as required by law.” The hearing judge found this
statement misleading given that Respondent had been legally responsible for the “affairs
of the Estate” since Ida Moss’s death.
On May 23, 2006, Respondent filed with the Register of Wills an Information
Report and Inventory for the Moss Estate. In the Inventory, he stated the real property
estate assets as: (1) the Waldorf property, valued at $880,000; (2) the Wheaton property,
valued at $700,000 (though, no longer part of the estate having been sold); and (3) the
Bethesda residence valued at $475,000. However, Respondent did not identify any
tangible personal property, financial accounts, or cash assets belonging to the Estate of Ida
Moss at that time.
10
Following a hearing held before the Orphans’ Court on July 19, 2006, the court
reinstated Ms. Brandon as personal representative and directed that a First and Final
Accounting be filed by August 15, 2006. On August 15, 2006, Respondent filed an
Amended Inventory and the First and Final Account. The Amended Inventory included
revisions indicating that the Wheaton property sold for $903,000 and that the estate had
cash in that amount from the sale proceeds.
The First and Final Account that Respondent prepared and filed listed the following
assets available for distribution: $1,622,460 in real property based on the valuation of the
Waldorf property and the Bethesda residence, and $903,000 in cash proceeds from the
Wheaton property sale. Respondent identified Ms. Brandon as “daughter and sole
beneficiary EXEMPT,” attempting to suggest she was exempt from any obligation for
inheritance tax. The hearing judge found that Respondent’s classification of Ms. Brandon
as the sole beneficiary was a misstatement. Under the 1995 Will, Ms. Brandon was entitled
to only half of the trust fund remainder, with the other half going to Adam Brandon. Even
if Ms. Moss had died intestate, Ms. Brandon was not the only prospective heir, so she was
not the “sole beneficiary.”
The hearing judge determined from these facts that Respondent knowingly and
intentionally failed to provide true and accurate information about the assets of the Ida
Moss Estate, any changes in the assets, and the disbursements made when he filed the First
and Final Account. Namely, Respondent failed to note his receipt of the funds from the
sale of the Wheaton property as well as his misappropriation of those funds.
11
On February 15, 2007, the Orphans’ Court issued another Order to Show Cause why
Ms. Brandon should not be removed as personal representative, this time for failure to
perfect the First and Final Account. On April 3, 2007, Respondent filed a “Status Report
on February 15, 2007 Order.” This led the Auditor for the Register of Wills to file a
“Request for Rescinding Order of April 5, 2007,” which in turn caused the Orphans’ Court
to issue an “Order Rescinding Order to Show Cause Why Personal Representative Should
Not Be Removed on April 6, 2007.” Upon approval by the Auditor for the Register of
Wills, the Orphans’ Court approved the First and Final Account in the Ida Moss Estate on
June 6, 2007. No exceptions were filed, and the order became final twenty days after its
entry.
The hearing judge noted other concerns regarding Respondent’s final accounting.
As mentioned earlier, the Wheaton and Waldorf properties were both commercial real
estate that Ms. Moss had leased to commercial tenants. Respondent, however, never
provided to the Orphans’ Court any accounting of rental income received after Ida Moss’s
death from the Wheaton property (before its sale) or the Waldorf property. Respondent
also failed to account for any disbursement of estate funds to pay expenses associated with
any of the properties. Moreover, the hearing judge noted that Respondent did not disclose
his misappropriation of estate funds, and he never petitioned for the approval of any
attorney’s fees for himself.
12
Representation of Patricia Brandon
Ms. Brandon relied on Respondent’s advice and counsel, both before and after her
mother’s death. Respondent advised Ms. Brandon regarding the management of the
Wheaton and Waldorf commercial rental properties, as well as the family’s financial affairs
more generally. Respondent also drafted Ms. Brandon’s will. The hearing judge noted
that sometime after having depleted the Wheaton property sale proceeds, Respondent
knowingly misrepresented to Ms. Brandon that the proceeds had been lost in the 2008 stock
market crash.
In early 2011, Ms. Brandon began to suffer from various health issues, at which
time her nephew, Dennis Katz, traveled from his home in Florida to Maryland to assist her
with financial matters. Soon thereafter, Dennis Katz and Adam Brandon7 found paperwork
for the 2005 sale of the Wheaton property, evidence that Respondent deposited the sale
proceeds in his trust account, and a copy of Ms. Brandon’s will8 with a provision naming
Respondent as successor beneficiary of her estate. Dennis Katz and Adam Brandon also
discovered a copy of Ms. Moss’s 1995 Will at the Bethesda residence.
7
Dennis Katz and Adam Brandon are half-brothers through their mother, Sherry
Moss. Sherry Moss is one of Ida Moss’s two daughters, the other being Ms. Brandon.
Sherry Moss predeceased Ida Moss and Ms. Brandon, prompting Ms. Brandon and her
husband to adopt Adam Brandon in 1981.
8
Mr. Katz testified at the evidentiary hearing that Respondent had written a will for
his aunt, Ms. Brandon, and “named himself as the beneficiary of her entire Will if Adam
happened to pass away prior to my Aunt.”
13
Dennis Katz then visited the Waldorf property and discovered that Respondent, with
the power of attorney granted to him by Ms. Brandon, was trying to sell the Waldorf
property. Ms. Brandon was unaware of the attempted sale and subsequently executed a
new power of attorney in favor of Dennis Katz, who was able to prevent the sale of the
Waldorf property.
Civil Suit Against Mr. Karambelas
In May 2011, due to their concerns regarding Respondent’s actions, Mr. Katz and
Adam Brandon sought the advice of three other attorneys, Alton Burton, Robert Bunn, and
Christopher Hoge. Mr. Hoge was engaged to handle a civil lawsuit against Respondent,
Mr. Bunn took over as the family’s estate attorney, and Mr. Burton examined the estate’s
tax liability due to its neglect under Respondent’s care.
Ms. Brandon died in June of 2011, and in October of that year Adam Brandon and
Dennis Katz instituted a civil suit against Respondent and his firm, Sfikas & Karambelas,
LLP. The suit sought $1.5 million in compensatory damages and $1 million in punitive
damages. The complaint alleged legal malpractice, breach of fiduciary duty, and wrongful
conversion.
During discovery, Respondent provided Mr. Hoge with copies of checks from
Respondent’s trust account that were issued during the relevant period from 2005 to 2007.
Mr. Burton reviewed the records to account for the Wheaton property sale proceeds. His
analysis broke down the $852,305.50 in sale proceeds as follows: $218,261.97 was
attributed to payments for the benefit of Ms. Brandon; $44,771.71 was attributed to
14
payments for the benefit of Adam Brandon; $12,281.00 was attributed to payments for the
benefit of Moss Enterprises (an entity used to collect funds and pay bills relating to the
Waldorf property); and $576,990.82 was attributable to the misappropriation by
Respondent.
The suit further alleged that Respondent failed to properly advise Ms. Brandon
about having to pay nearly $670,000 in federal and Maryland estate taxes within nine
months of Ida Moss’s death. Due to that failure, there were inchoate tax liens filed against
the Waldorf property and the Bethesda residence. Moreover, considerable interest and
penalties were assessed for the failure to pay the estate taxes when due in 2003. Ultimately,
the Bethesda residence had to be sold in March 2012 to preserve the equity in the home
because the bank was going to foreclose on the property. The equity was then used to help
pay the outstanding estate tax liabilities, as well as the costs of the civil suit. The sale
forced Adam Brandon out of the family residence and into a back room of a store situated
on the Waldorf property, which he converted into a one-room apartment.
The suit also asserted that Respondent failed to advise Ms. Brandon about the
necessity of filing federal and Maryland income tax returns on behalf of the Ida Moss
Estate. This too led to substantial tax indebtedness, requiring the Ida Moss Estate to be
reopened in 2013. The Orphans’ Court ordered the estate to be reopened but refused to
admit Ida Moss’s 1995 Will due to the statute of limitations. Thus, the estate had to be
administered as an intestate estate, causing additional family members not named in the
1995 Will to become beneficiaries. This led to further litigation that slowed the
15
administration of the estate, added expense to the administration of the estate, and reduced
the inheritance of all beneficiaries.
Respondent argued that as the estate attorney, he was not responsible for handling
any tax consequences relating to the administration of the estate. He further claimed that
he encouraged Ms. Brandon to seek outside counsel for handling the estate’s taxes;
evidently, he took no other steps.
Mr. Burton, familiar with the process of estate taxation, testified at the evidentiary
hearing that addressing estate taxation is a component of an estate attorney’s
responsibilities. He also testified that a competent estate attorney, at a minimum, would
find a suitable tax attorney or accountant to manage the estate’s taxes if the estate attorney
was unable to do it himself. Respondent failed to act accordingly.
The hearing judge ultimately found that Respondent’s fraudulent misappropriation
of estate funds and lack of competence in administering the estate caused substantial
financial detriment to the Ida Moss Estate and her intended beneficiaries. Furthermore,
Respondent’s misconduct required additional proceedings relating to the handling of the
Ida Moss Estate since its reopening and the extensive efforts made in resolving the estate’s
tax issues.
The civil suit was dismissed in December 2012 when the parties entered into a
Settlement Agreement. The parties settled the matter on December 6, 2013 for $850,000,
not including interest, to be paid in full by July 1, 2018. The Settlement Agreement
provided that Respondent’s malpractice carrier pay $500,000 to the beneficiaries of the
16
Estate of Ida Moss, and Respondent pay the remaining $350,000 pursuant to a payment
plan. Respondent complied with the payment plan and made the final payment on
December 21, 2015.
The hearing judge, however, determined that the settlement was not full restitution,
stating it was clear that the $500,000 paid by the malpractice carrier was meant to
compensate the plaintiffs for Respondent’s mishandling of the estate; whereas, the
$350,000 was a settlement of the monies that Respondent misappropriated. Thus, the
hearing judge did not find that the settlement amount fully compensated the Estate of Ida
Moss for the misappropriated monies of over $576,990.82. Furthermore, the hearing judge
determined that the hearing testimony showed that the plaintiffs incurred significant
litigation costs in bringing suit, which further contributed to their losses due to
Respondent’s actions.
II.
The Hearing Judge’s Conclusions of Law
The hearing judge determined that Respondent violated Rules 1.1, 1.4(a) and (b),
1.15(a) and (d), 3.3(a), and 8.4(a)–(d). Additionally, Respondent violated D.C. Rule of
Professional Conduct 1.15(a) and (c). The hearing judge lastly determined that Respondent
violated Section 10-306 of the Maryland Business Occupations and Professions Article.
Neither Respondent nor Petitioner filed exceptions to the hearing judge’s findings
of fact and conclusions of law. Respondent filed exceptions, though, relating to mitigating
factors.
17
III.
Standard of Review
This Court has ‘original and complete jurisdiction’ in attorney
disciplinary proceedings and ‘conducts an independent review of the record.’
The hearing judge’s findings of fact are left undisturbed unless those findings
are clearly erroneous or either party excepts to them. . . . We review the
hearing judge’s conclusions of law without deference.
Attorney Grievance Comm’n v. Edwards, 462 Md. 642, 682–83 (2019) (citations omitted).
As is the case here, where no exceptions to the findings of fact are filed, “the Court may
treat the findings of fact as established.” Md. Rule 19-741(b)(2)(A).
IV.
Discussion
We turn now to the hearing judge’s conclusions of law. For reasons explained
below, we agree with the hearing judge that Respondent violated the following Rules of
Professional Conduct, as well as D.C. Rule of Professional Conduct 1.15 (safekeeping of
property), and Section 10-306 (Misuse of trust money) of the Maryland Business
Occupations and Professions Article.
Rule 1.1 Competence
Rule 1.1 provides that “[a] lawyer shall provide competent representation to a client.
Competent representation requires the legal knowledge, skill, thoroughness and
preparation reasonably necessary for the representation.”
We have held that a “failure to apply the requisite thoroughness and/or preparation
in representing a client is sufficient alone to support a violation of Rule 1.1.” Attorney
18
Grievance Comm’n v. Guida, 391 Md. 33, 54 (2006). Furthermore, Rule 1.1 is violated
when “an attorney fails to act or acts in an untimely manner, resulting in harm to his or her
client.” Attorney Grievance Comm’n v. Garrett, 427 Md. 209, 222–23 (2012) (quoting
Attorney Grievance Comm’n v. Brown, 426 Md. 298, 319 (2012)) (holding that not taking
necessary, fundamental steps to further a client’s cause results in violation of Rule 1.1);
see also Attorney Grievance Comm’n v. De La Paz, 418 Md. 534, 553–54 (2011) (finding
that failure to appear at a hearing violated Rule 1.1).
The record is clear that Respondent violated Rule 1.1 by not rendering competent
representation in the administration of the Ida Moss Estate. First, he failed to take the
necessary steps to promptly open the Ida Moss Estate after her death in 2002. Instead, he
waited over two years to file a Regular Estate Petition for Administration with the Register
of Wills. Then, upon the delayed opening of the estate, Respondent failed to provide either
a copy or an original of Ms. Moss’s 1995 Will, or even share his knowledge that a will
existed. Rather, he misstated that Ms. Moss died intestate. That act clearly impeded his
client’s, Ms. Moss’s, testamentary wishes and harmed not just the estate, but the intended
beneficiaries as well.
Respondent attempts to explain that he never saw an original or final will because
Ms. Moss, and later Ms. Brandon, maintained all documents. Respondent’s explanation
does not justify why he incorrectly stated that Ms. Moss died intestate. Regardless of his
never seeing the original will, he had to know of its existence because Ida Moss’s former
attorney transferred Ms. Moss’s estate planning documents to Respondent. Furthermore,
19
Respondent signed the 1997 codicil appointing him as co-personal representative and
providing him “with all rights, powers and duties set forth” in the 1995 Will, establishing
his knowledge of the will’s existence. Moreover, he knew whom he could ask to locate it
(i.e. his own client, Ms. Brandon) given Respondent’s own admission that all documents
regarding the 1995 Will were kept by Ms. Moss and Ms. Brandon at the Bethesda
residence, where all their meetings took place.
Respondent continued to violate Rule 1.1 by failing to properly advise Ms. Brandon
on the proper administration of the Ida Moss Estate. Specifically, he failed to inform her
of the need to pay state and federal estate taxes within nine months of her mother’s death.
Nor did he inform her of the need to file estate tax returns. We find these facts particularly
troubling, given that Respondent took it upon himself to direct Ms. Brandon to sell the
Wheaton property so that the proceeds could be put towards estate taxes (as discussed later,
these proceeds were never able to be attributed towards estate taxes due to Respondent’s
misappropriation).9
Respondent claims he was not tax counsel for Ms. Brandon and should not be at
fault for the estate’s tax troubles. However, Mr. Burton, attorney and certified public
accountant, testified at the evidentiary hearing that ensuring that both estate taxes and tax
9
Respondent makes a blanket statement in his Response to the Petition that he did
not mislead Ms. Brandon in advising her to sell the Wheaton property, but that is hard to
believe given the facts before us. Respondent advised the sale on the premise that the
proceeds should be put towards estate taxes. However, Respondent, now claiming he was
not tax counsel, had those proceeds placed in his trust account and later misappropriated
those same funds. The alignment of these acts indicates Respondent was in fact misleading
Ms. Brandon, using the ruse of estate taxes to gain access to funds.
20
returns are filed is something a reasonably competent estate attorney would do. Even if
Respondent was not competent to handle the tax issues himself, the fact that he advised
Ms. Brandon to sell the Wheaton property to pay for estate taxes and counseled her in that
sale shows, at a minimum, that he had an obligation to confirm the tax issues were being
handled and not disregarded. Respondent’s failure to competently advise Ms. Brandon
ultimately led to substantial tax liability issues for the estate, the process of resolving those
issues being “lengthy and grueling.” In fact, the estate’s tax issues were not resolved until
approximately 2016.
Respondent also failed to advise Ms. Brandon of the requirement to file a timely
First Account and Inventory in the estate of Ida Moss. Furthermore, Respondent, without
explanation, failed to appear at the show cause hearing on April 19, 2006 causing Ms.
Brandon to be temporarily removed as personal representative.
Respondent’s failure to provide competent representation continued when he
included various misstatements and omissions in documents he filed with the Register of
Wills. First, in filing the Information Report and Inventory for the estate, Respondent
failed to include material information such as tangible personal property, financial
accounts, or cash assets of the estate. Second, he wrongfully stated that Ms. Brandon was
the sole beneficiary of the estate in the First and Final Account. Third, he failed to note
changes of estate assets and disbursements made from those assets in the First and Final
Account, including his receipt of the Wheaton property sale proceeds and his
misappropriation of those funds. And fourth, he did not provide an accounting of any rental
21
income from the Waldorf and Wheaton properties or note any disbursements of estate funds
to pay expenses of those properties.
These facts show by clear and convincing evidence that Respondent failed to
provide competent representation under Rule 1.1 as the attorney for the Ida Moss Estate
and as counsel to Ms. Brandon.
Rule 1.4(a) and (b) Communication
Rule 1.4 provides:
(a) A lawyer shall:
(1) promptly inform the client of any decision or circumstance with
respect to which the client’s informed consent, as defined in Rule
1.0(f), is required by these Rules;
(2) keep the client reasonably informed about the status of the matter;
(3) promptly comply with reasonable requests for information; . . .
(b) A lawyer shall explain a matter to the extent reasonably necessary to
permit the client to make informed decisions regarding the representation.
This Court has determined that Rule 1.4 is violated when an attorney communicates
nothing or fails to communicate crucial information to the client regarding the status of a
case. See Garrett, 427 Md. at 224; see also De La Paz, 418 Md. at 554.
Respondent violated Rule 1.4. As discussed under our Rule 1.1 analysis,
Respondent failed to advise Ms. Brandon how to correctly and legally administer her
mother’s estate as the personal representative. That failure also left Ms. Brandon without
the ability to make informed decisions regarding Respondent’s role in his representation of
the estate. More specifically, Respondent failed to properly communicate the need to pay
state and federal estate taxes, file state and federal estate tax returns, file a First Account
and Inventory of the estate’s assets, as well as perfect the First and Final Account.
22
Moreover, as mentioned earlier, Respondent did not fully relay to Ms. Brandon his
reasoning for advising the sale of the Wheaton property. After the sale, he failed to inform
Ms. Brandon of any accounting or record of the Wheaton property sale proceeds entrusted
to him as a fiduciary or inform her of any schedule of disbursements. And when Ms.
Brandon did inquire as to the proceeds, Respondent misinformed her that the remaining
proceeds had been lost in the 2008 stock market crash.
Unfortunately, Respondent’s failure to keep Ms. Brandon reasonably informed
continued into 2011, when it came to light that he was attempting to sell the Waldorf
property without Ms. Brandon’s knowledge or consent. Such conduct is a clear Rule 1.4
violation given that Respondent failed to communicate with Ms. Brandon regarding the
matter of the sale at all. See De La Paz, 418 Md. at 554.
Rule 1.15(a) and (d) Safekeeping Property
(a) A lawyer shall hold property of clients or third persons that is in a
lawyer’s possession in connection with a representation separate from the
lawyer’s own property. Funds shall be kept in a separate account . . . .
Complete records of the account funds and of other property shall be kept by
the lawyer and shall be preserved for a period of at least five years after the
date the record was created.
....
(d) Upon receiving funds or other property in which a client or third person
has an interest, a lawyer shall promptly notify the client or third person.
Except as stated in this Rule or otherwise permitted by law or by agreement
with the client, a lawyer shall deliver promptly to the client or third person
any funds or other property that the client or third person is entitled to receive
and, upon request by the client or third person, shall render promptly a full
accounting regarding such property.
23
Respondent violated Rule 1.15. His violations stem from the sale of the Wheaton
property and his failure to safeguard those funds for the Ida Moss Estate and the estate’s
intended beneficiaries.
Under the facts of this case, Respondent violated Rule 1.15(a) when he placed the
Wheaton property sale proceeds into his trust account rather than in an estate bank account
or an account in the name of the trust. See Attorney Grievance Comm’n v. Boehm, 293
Md. 476, 479 n.2 (1982) (“It is the obligation of an attorney upon receiving funds
representing the assets of an estate to deposit those funds in a separate estate account clearly
identifiable by the name of the decedent. Such funds should not be commingled in an
escrow account, general or otherwise.”). He then proceeded to make multiple transfers of
thousands of dollars from his trust account to his personal bank account without the
knowledge or authorization of Ms. Brandon. Respondent also wrote checks and withdrew
cash from the trust account on several occasions to pay for his own personal expenses as
well as those of his daughters. At the evidentiary hearing, Mr. Burton testified that
Respondent’s misappropriation10 amounted to roughly $576,990.82. Such conduct is a
clear violation of Rule 1.15(a) because funds belonging to the estate were placed into
Respondent’s personal bank account. See Attorney Grievance Comm’n v. Owrutsky, 322
Md. 334, 344 (1991) (stating that estate funds belong to the estate, not the attorney, and the
10
We have defined misappropriation as “any unauthorized use by an attorney of a
client’s funds entrusted to him or her, whether or not temporary or for personal gain or
benefit.” Attorney Grievance Comm’n v. Jones, 428 Md. 457, 468 (2012) (quoting
Attorney Grievance Comm’n v. Glenn, 341 Md. 448, 484 (1996)).
24
attorney has no right to those funds unless approval is given by the Orphans’ Court). As
this Court opined in Owrutsky, a fiduciary “[a]ppropriating any part of [another’s] funds to
their own use and benefit without clear authority to do so cannot be tolerated.” 322 Md. at
345.
Respondent also violated Rule 1.15(a) by failing to keep a record of the Wheaton
sale proceeds, entrusted to him as a fiduciary. See Attorney Grievance Comm’n v. Ross,
428 Md. 50, 78–79 (2012) (concluding there was a Rule 1.15(a) violation by an attorney
who failed to maintain proper trust account records). Respondent intermingled the
Wheaton property sale proceeds with other clients’ funds in his trust account and
maintained no client matter ledger to keep track of those funds.
Respondent violated Rule 1.15(d) when he failed to make the specified distributions
expressed in the 1995 Trust Agreement. Specifically, Respondent did not notify Dennis
Katz, an intended beneficiary, of his receipt of the estate funds and that Mr. Katz was
entitled to a $30,000 disbursement under the 1995 Trust Agreement. Additionally, the
remaining balance of the trust fund was to be divided equally between Ms. Brandon and
her son, Adam Brandon. They also did not receive their distributions as specified in the
1995 Trust Agreement.
In sum, Respondent’s gross misappropriation of over a half-million dollars of estate
funds, as well as his total failure to safeguard those funds for the estate and its intended
beneficiaries amounts to an egregious violation of Rule 1.15.
25
Rule 3.3(a) Candor Toward the Tribunal
Rule 3.3(a) provides,
(a) A lawyer shall not knowingly:
(1) make a false statement of fact or law to a tribunal or fail to correct a
false statement of material fact or law previously made to the tribunal
by the lawyer[.]
The facts found by the hearing judge undoubtedly show that Respondent was
knowingly dishonest with the Orphans’ Court on multiple occasions. Respondent made
his first knowingly false statement when he stated that Ms. Moss died intestate, thereby
indicating she had no will. As previously discussed, Respondent had knowledge that a will
existed given that Ms. Moss’s former attorney transferred the estate planning documents
to Respondent, and Respondent signed the 1997 will codicil. In accordance with that
misrepresentation, Respondent withheld the 1995 Will from the Register of Wills.
Respondent continued to violate Rule 3.3 when he intentionally withheld
information regarding all of the estate’s assets in the Information Report and Inventory he
filed with the Register of Wills on May 23, 2006. Particularly, he failed to identify any
tangible personal property, financial accounts, or cash assets belonging to the estate.
Respondent again intentionally provided inaccurate information when he filed the
First and Final Account on August 15, 2006. He failed to note his receipt of the funds from
the Wheaton property sale, his misappropriation of those funds, and any disbursements he
made to Ms. Brandon. Respondent also incorrectly stated that Ms. Brandon was the sole
beneficiary of the estate. Under the 1995 Will and Trust Agreement, Ms. Brandon was
entitled to only half of the remainder of the trust fund. But even if Ida Moss had died
26
intestate, Ms. Brandon would not have been the sole beneficiary because she was not the
only heir. These intentional misstatements and withholdings from the Orphans’ Court are
in clear violation of Rule 3.3(a)(1).
Rule 5.5(a) Unauthorized Practice of Law
Rule 5.5(a) provides that a lawyer must not practice law in a jurisdiction where it
would violate that jurisdiction’s regulation of the legal profession. The only evidence
supporting this alleged Rule violation, as found by the hearing judge, is Respondent’s
statement that he was admitted to the Maryland Bar sometime in the mid-1990’s. This is
insufficient to support a charge of the unauthorized practice of law given that the alleged
violations occurred from November 1996 onward. Thus, we will not disturb the hearing
judge’s conclusion that there was not clear and convincing evidence to establish a Rule 5.5
violation.11
Rule 8.4(a)–(d) Misconduct
Rule 8.4 provides:
It is professional misconduct for a lawyer to:
(a) violate or attempt to violate the Maryland Lawyers’ Rules of Professional
Conduct, knowingly assist or induce another to do so, or do so through
the acts of another;
(b) commit a criminal act that reflects adversely on the lawyer’s honesty,
trustworthiness or fitness as a lawyer in other respects;
(c) engage in conduct involving dishonesty, fraud, deceit or
misrepresentation;
(d) engage in conduct that is prejudicial to the administration of justice[.]
11
See supra note 4.
27
As discussed above, Respondent has violated various other Rules, thereby violating
Rule 8.4(a). A Rule 8.4(b) violation occurs when an attorney willfully violates Section 10-
306 of the Business Occupations and Professions Article, which constitutes a criminal
misdemeanor. Attorney Grievance Comm’n v. Hamilton, 444 Md. 163, 193–96 (2015);
Md. Code, Bus. Occ. & Prof. § 10-606(b). Consequently, Respondent’s violation of the
Business Occupations and Professions Article (discussed below) necessarily caused him to
violate Rule 8.4(b).
We have held that an intentional misappropriation of client funds “is an act infected
with deceit and dishonesty.” Attorney Grievance Comm’n v. Cherry-Mahoi, 388 Md. 124,
161 (2005) (quoting Attorney Grievance Comm’n v. James, 385 Md. 637, 666 (2005)).
Thus, it has been consistently determined that an attorney’s intentional misappropriation
of client funds violates Rule 8.4(c). Id. at 159. As shown in the facts found by the hearing
judge, Respondent misappropriated roughly $576,990 of the Wheaton property sale
proceeds, in clear violation of Rule 8.4(c).
Moreover, “[when] an attorney knowingly makes a false statement, he necessarily
engages in conduct involving misrepresentation,” in violation of Rule 8.4(c). Attorney
Grievance Comm’n v. Dore, 433 Md. 685, 708 (2013). Respondent repeatedly made false
and misleading statements, several of which were made to the Orphans’ Court. An attorney
who violates Rule 3.3 will often also violate Rule 8.4(c). Attorney Grievance Comm’n v.
Woolery, 462 Md. 209, 250 (2018) (finding that the attorney violated Rule 8.4(c) by
violating Rule 3.3(a) (making false statements to a tribunal)). As discussed in our Rule
28
3.3(a) analysis, Respondent withheld the existence of Ida Moss’s 1995 Will and
accompanying 1995 Trust Agreement when opening the estate. Instead, he misstated that
Ms. Moss died intestate. Then, he knowingly gave false and incomplete information about
the assets of Ms. Moss’s estate, changes in those assets, and disbursements made when he
filed both the Information Report and Inventory, as well as the First and Final Account
with the Orphans’ Court.
Respondent also lied to Ms. Brandon when he told her the remaining sale proceeds
of the Wheaton property were lost in the 2008 stock market crash when, in reality, he had
misappropriated those funds. Lastly, Respondent was deceitful in his attempt to sell the
Waldorf property without Ms. Brandon’s knowledge or consent. Through these various
acts, Respondent has certainly violated Rule 8.4(c).
Rule 8.4(d) is violated when the attorney’s “conduct impacts negatively the public’s
perception or efficacy of the courts or legal profession.” Attorney Grievance Comm’n v.
Reno, 436 Md. 504, 509 (2014) (quoting Attorney Grievance Comm’n v. Rand, 411 Md.
83, 96 (2009)). Such a violation can be found in lying to a client and failing to represent a
client in a suitable manner. Attorney Grievance Comm’n v. Reinhardt, 391 Md. 209, 222
(2006). Furthermore, failure on the part of an attorney to show up to a scheduled court
proceeding clearly interferes with the administration of justice in violation of Rule 8.4(d).
Hamilton, 444 Md. at 196.
As mentioned previously, Respondent misrepresented the reason for the sale of the
Wheaton property, knowingly misappropriated those funds entrusted to him as a fiduciary,
29
and then lied about the status of those funds to Ms. Brandon. Moreover, and as discussed
under Rule 3.3, he intentionally made misrepresentations to the Orphans’ Court regarding
the Ida Moss Estate. As explained under our Rule 1.1 and 1.4 analyses, Respondent also
failed to adequately represent the Moss estate and Ms. Brandon on numerous counts.
Respondent waited over two years to open the Moss estate, whereupon he failed to bring
forth the 1995 Will despite his knowledge of its existence. Respondent subsequently failed
to advise Ms. Brandon of the need to pay estate taxes and file estate tax returns, as well as
the need to file an account and inventory of the Moss estate. Respondent’s failure to advise
Ms. Brandon about the requirement to file an account and inventory of the Moss estate, as
well as his failure to appear at the show cause hearing, led to Ms. Brandon’s temporary
removal as personal representative. Respondent also tried to sell the Waldorf property
without speaking to his client, Ms. Brandon.
Respondent’s conduct and misrepresentations led to harmful consequences for Ida
Moss’s family, the impact of which has been felt over the course of many years. Some of
the harmful consequences, as noted by the facts found by the hearing judge, include: the
sale of the family home to pay estate taxes, which forced Adam Brandon to move into a
back room at one of the commercial properties and convert it into an apartment; the Moss
estate having to be reopened and treated as an intestate estate, whereupon beneficiaries not
specified in Ida Moss’s will were able to receive parts of the estate—causing further
litigation for the family; and vast estate tax issues, the resolution of which was not obtained
until late 2016.
30
In sum, we find that Respondent’s conduct negatively impacts the public’s
perception of the legal profession, and we agree with the hearing judge’s assessment that
Respondent’s conduct is prejudicial to the administration of justice in violation of Rule
8.4(d).
D.C. Rule 1.15(a) and (c) Safekeeping Property
D.C. Rule 1.15(a) provides that an attorney must keep funds belonging to a client
or third person in a separate trust account and avoid commingling those funds with the
attorney’s own property. Rule 1.15(a) also requires an attorney to maintain records of
funds. A misappropriation of client funds entrusted to the attorney will constitute a
violation of Rule 1.15(a). In re Edwards, 990 A.2d 501, 518–20 (D.C. 2010).
Rule 1.15(c) requires an attorney, upon receipt of funds belonging to a client or third
person, to promptly notify the client or third person. The attorney must also deliver to the
client or third person any funds the client or third person is entitled to receive. Rule 1.15(c)
also mandates that, “upon request by the client or third person, [the attorney] shall promptly
render a full accounting regarding such property.”
Respondent is held responsible under D.C. Rule 1.15 because his attorney trust
account, in which he placed the Wheaton property sale proceeds (i.e. estate funds), was
maintained in D.C. We find by clear and convincing evidence that Respondent violated
D.C. Rule 1.15 for the same reasons we held that he violated Maryland’s Rule 1.15.
31
Business Occupations & Professions Article Section 10-306 (Misuse of trust money)
Section 10-306 prohibits a lawyer from using “trust money for any purpose other
than the purpose for which the trust money is entrusted to the lawyer.” Md. Code, Bus.
Occ. & Prof. § 10-306. One who willfully violates Section 10-306 is guilty of a
misdemeanor. Id. § 10-606(b). As such, a willful violation of Section 10-306 necessarily
violates Rule 8.4(b) (prohibiting the commission of a criminal act that reflects adversely
on the lawyer’s trustworthiness). See Hamilton, 444 Md. at 194–95. For one’s acts to be
“willful,” there need not be proof of specific criminal intent, but there must be at least proof
of a general intent. Id. at 195 (quoting Glenn, 341 Md. at 482).
The plain language of Section 10-306 and the facts of this case support the hearing
judge’s conclusion that Respondent violated Section 10-306 when he intentionally
misappropriated the sale proceeds of the Wheaton property.
V.
Aggravating and Mitigating Factors
We next address the presence of any aggravating or mitigating factors, as such an
analysis is necessary in determining the proper sanction. Attorney Grievance Comm’n v.
Thomas, 445 Md. 379, 397 (2015) (citation omitted). The Respondent bears the burden of
proving any mitigating circumstances by a preponderance of the evidence. Attorney
Grievance Comm’n v. Joseph, 422 Md. 670, 695 (2011). Bar Counsel must prove the
existence of any aggravating factors by clear and convincing evidence. Edwards, 462 Md.
at 708.
32
We consider the following mitigating factors when determining the appropriate
sanction:
1. absence of a prior disciplinary record;
2. absence of a dishonest or selfish motive;
3. personal or emotional problems;
4. timely good faith efforts to make restitution or to rectify consequences of
misconduct;
5. full and free disclosure to the disciplinary board or a cooperative attitude
toward proceedings;
6. inexperience in the practice of law;
7. character or reputation;
8. physical disability;
9. mental disability or chemical dependency;
10. delay in disciplinary proceedings;
11. imposition of other penalties or sanctions;
12. remorse;
13. remoteness of prior offenses; and
14. unlikelihood of repetition of the misconduct.
See Attorney Grievance Comm’n v. Sperling, 459 Md. 194, 277–78 (2018) (citation
omitted) (reformatted).
In his Response to the Petition, Respondent argued that the following mitigating
factors applied: absence of prior disciplinary record, absence of dishonest or selfish motive,
restitution, cooperation with bar counsel, remoteness, and unlikelihood of repetition of
misconduct. The hearing judge found mitigation in that the Respondent has no prior
disciplinary history. However, upon examining the evidence, the hearing judge determined
that Respondent failed to prove any other mitigation by a preponderance of the evidence.
Respondent argues that the hearing judge erred in that determination and filed exceptions
to all four of the mitigating factors he advances: remoteness, restitution, no prior
disciplinary action, and unlikelihood of repetition of the misconduct. Respondent did not
33
need to except to the factor of no prior disciplinary action because the hearing judge found
that mitigating factor to exist. We will not disturb that finding. We now examine the
remaining factors.
As previously noted, Respondent’s case in chief at the evidentiary hearing consisted
of only the Settlement Agreement and the “Factual Clarifications” section of his Response.
We look to that evidence in making our determinations.
First, we agree with the hearing judge that Respondent has not provided evidence
showing the absence of a dishonest or selfish motive. The evidence before us indicates,
rather, that Respondent’s conduct was dishonest and selfish. He misappropriated a
substantial amount of client funds for personal expenses, demonstrating his selfish motive.
Moreover, he hid his conduct from his clients and the Orphans’ Court and lied about his
actions, which undoubtedly constitutes dishonesty.
Respondent also points to the mitigating factor of restitution, arguing it was satisfied
by the December 6, 2013 settlement for $850,000. We are not persuaded. To start, we
consider the settlement amount to have been only partial restitution. Although the total
settlement amount exceeded the roughly $576,990.82 that Respondent misappropriated,
the $500,000 that the insurance company paid was solely attributed to Respondent’s gross
mishandling of the estate. The remaining $350,000 that Respondent paid was attributed to
his theft of the Wheaton property sale proceeds. That sum does not equate to the total
amount Respondent misappropriated.
34
Moreover, as the hearing judge correctly found, Respondent’s partial restitution was
neither timely nor in good faith. See Attorney Grievance Comm’n v. Miller, 467 Md. 176,
225 (2020) (noting how repayment characterized as a sanction or penalty was not made in
good faith to remedy the attorney’s misconduct). The hearing judge found that Respondent
did not pay the $350,000 out of an altruistic need to rectify his misconduct, but rather
because Respondent was sued following the discovery of his wrongdoing years later and
entered into the Settlement Agreement to end that suit and avoid greater monetary liability.
As we have previously stated, “reimbursement after inquiry . . . does not serve to mitigate
[Respondent’s] conduct.” Attorney Grievance Comm’n v. Whitehead, 405 Md. 240, 265
(2008). Accordingly, we overrule Respondent’s exception and find that this mitigating
factor is absent.
We agree with the hearing judge that Respondent has not offered any evidence that
he cooperated with Bar Counsel throughout the proceedings. While Respondent did call
in at the beginning of the evidentiary hearing, he did not otherwise participate in the
proceeding. Moreover, as previously mentioned, Respondent’s case consisted of only his
Factual Clarifications from his Response to the Petition and the Settlement Agreement.
Thus, we cannot make that finding.
Respondent maintains that the factor of remoteness applies here. We disagree.
Respondent contends that his misrepresentations to the Orphans’ Court were made between
2006 and 2007, his misappropriation of funds occurred between 2006 and 2007, and the
civil case settled in 2013. However, Respondent does not provide any case law to support
35
his interpretation of remoteness. Moreover, we find that he misunderstands this factor.
This Court has indicated that the mitigating factor of remoteness speaks to prior
disciplinary proceedings for past Rules violations, not remoteness of the underlying events.
Attorney Grievance Comm’n v. Sperling, AG No. 6, slip op. at 57–58 (Md. Mar. 1, 2021)
(rejecting the attorney’s argument that “remoteness” refers to the lapse of time between the
underlying misconduct and the filing of the Petition for Disciplinary and Remedial Action);
see also Sperling, 459 Md. at 277–78 (listing mitigating factors, including “remoteness of
prior violations of the MLRPC”); Attorney Grievance Comm’n v. Shuler, 443 Md. 494,
507 (2015) (describing “remoteness of prior violations of the MLRPC” as a mitigating
factor).
The hearing judge astutely pointed out that if remoteness pertained to distance in
time of underlying misdeeds, then the Court would essentially be rewarding attorneys for
their ability to hide misconduct from the public and this Court. Such an interpretation
would be counter to the core purpose of a disciplinary proceeding: to protect the public and
prevent wrongdoing by attorneys. Sperling, 459 Md. at 274–75 (citation omitted)
(explaining that the Court imposes sanctions to protect the public and to deter lawyers from
violating the Rules). We will not interpret the factor of remoteness as Respondent wishes
us to. The exception is overruled.
Lastly, Respondent asks that we find that he is unlikely to repeat his Rules
violations. Respondent has provided no evidence that would prompt us to make that
finding. Respondent merely states he has practiced law for forty years without being
36
subject to disciplinary action. This is insufficient support, and in fact does not do
Respondent any favors. The fact that he has practiced for such an extended period of time
and yet still committed the discussed misdeeds does not convince this Court that his
experience will prevent further misconduct.
The aggravating factors we consider when determining the appropriate sanction
include:
1. prior attorney discipline;
2. dishonest or selfish motive;
3. pattern of misconduct;
4. multiple Rules violations;
5. bad faith obstruction of the disciplinary proceeding by deliberately failing to
comply with rules or orders;
6. submission of false evidence, false statements, or other deceptive practices
during the disciplinary process;
7. refusal to acknowledge the wrongful nature of conduct at issue;
8. the vulnerability of the victim;
9. substantial experience in the practice of law;
10. display of indifference to making restitution;
11. illegal conduct; and
12. likelihood of repetition of the misconduct.
Sperling, 459 Md. at 275 (citation omitted) (reformatted).
Petitioner has alleged the existence of evidence to support several of the above listed
aggravating factors in Respondent’s case. The hearing judge found the following to exist
by clear and convincing evidence: dishonest or selfish motive, pattern of misconduct,
multiple Rules violations, refusal to acknowledge wrongfulness of conduct, substantial
experience in the practice of law, and illegal conduct. Based upon our independent review
of the record, we agree that those aggravating factors are supported by clear and convincing
evidence.
37
First, Respondent had a dishonest and selfish motive in acquiring and
misappropriating estate funds entrusted to him while representing both the estate and Ms.
Brandon. His selfish motive led him into further misconduct involving not only his own
clients, but the Orphans’ Court as well. Respondent’s selfish motive is evidenced by his
misuse of the estate funds, entrusted to him as a fiduciary, to pay for his own personal
expenses.
Second, a pattern of misconduct is evidenced by Respondent’s multiple instances of
misappropriating estate funds, multiple misrepresentations to the Orphans’ Court,
misrepresentations made to Ms. Brandon in advising her as to the administration of the
estate, and misrepresentations to Ms. Brandon as his individual client.
Third, as demonstrated in our analyses of the various Rules violations, Respondent
engaged in multiple violations under our Rules of Professional Conduct, D.C. Rule 1.15,
as well as the Maryland Business Occupations and Professions Article while representing
Ida Moss, her estate, and Ms. Brandon.
Fourth, we find that Respondent has not fully acknowledged the wrongfulness of
his conduct. Upon review of the evidence, Respondent neither admitted responsibility for
his wrongdoing, nor acknowledged the long-lasting impact his behavior had on the Ida
Moss Estate and Ms. Moss’s family. Rather, in his Response, he defended some of his
actions by stating he “did not serve as tax counsel” and was therefore, not responsible for
the numerous and long-lasting tax issues the estate had to resolve. Moreover, Respondent
seems to argue that his payment of the settlement was full restitution and made Ida Moss’s
38
family whole again. However, as previously discussed, this is not the case. At most, the
settlement was partial restitution of some of the money Respondent had misappropriated.
And again, we do not find that repayment as a result of the lawsuit and opting for settlement
to avoid greater monetary liability equates to taking full responsibility for one’s
transgressions.
Fifth, Respondent’s forty years of legal practice is a clear indicator that he had
substantial experience and knowledge to conform his behavior to the Rules of Professional
Conduct, and that he knew the wrongfulness of his actions.
Finally, the misappropriation of estate funds entrusted to him as a fiduciary
constitutes illegal conduct.
VI.
The Sanction
The remaining issue to be resolved is the appropriate sanction to be imposed. It is
well established that the purpose of attorney disciplinary proceedings is to protect the
public and preserve the public’s confidence in the legal profession, not to punish the
lawyer. See, e.g., Attorney Grievance Comm’n v. Good, 445 Md. 490, 513 (2015).
Determining the appropriate sanction depends on the facts and circumstances of the case,
including any aggravating and mitigating factors. Id. This Court also aims to issue a
sanction that is “commensurate with the nature and gravity of the violations and the intent
with which they were committed.” Id. (quoting Attorney Grievance Comm’n v. Stein, 373
Md. 531, 537 (2003)).
39
Here, disbarment is the appropriate sanction for Respondent’s numerous and severe
violations under our Rules of Professional Conduct, D.C. Rule 1.15, and the Maryland
Business Occupations and Professions Article. Among other violations, Respondent failed
to properly maintain client funds; misappropriated a large amount of estate funds for
personal and family expenses; and engaged in dishonest and deceitful conduct by making
intentional misrepresentations to the Orphans’ Court as well as to his client.
Respondent’s misappropriation of client funds entrusted to his care in and of itself
warrants disbarment. Attorney Grievance Comm’n v. Sullivan, 369 Md. 650, 655–56
(2002) (citations omitted) (“misappropriation, by an attorney, of funds entrusted to his or
her care . . . ordinarily will result in disbarment”). Respondent’s pattern of dishonesty also
warrants disbarment. Joseph, 422 Md. at 707 (“ordinarily, disbarment is the sanction for
intentional dishonest conduct”). As such, disbarment is the appropriate sanction. The
presence of one mitigating factor cannot overcome the aggregation of Respondent’s many
transgressions along with several aggravating factors.
For the reasons set forth in this opinion, we issued a per curiam order disbarring
Respondent on October 6, 2020. Attorney Grievance Comm’n v. Karambelas, 471 Md. 96(2020).
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