Attorney Grievance Commission v. Mungin

Attorney Grievance Commission of Maryland v. Vaughn Miles Mungin, Misc. Docket
AG No. 88, September Term, 2012
ATTORNEY DISCIPLINE – SANCTIONS – INDEFINITE SUSPENSION – Court
of Appeals indefinitely suspended from practice of law in Maryland with right to apply
for reinstatement after six months lawyer who: (1) negligently mishandled attorney trust
account in connection with nine separate client matters; (2) withdrew cash from attorney
trust account on three separate occasions; and (3) failed to properly account for and
disburse settlement funds in prompt fashion. Such conduct violated Maryland Lawyers’
Rules of Professional Conduct (“MLRPC”) 1.1 (Competence), 1.15(a) and 1.15(d)
(Safekeeping Property), 8.4(d) (Conduct That Is Prejudicial to Administration of Justice),
and 8.4(a) (Violating MLRPC), Maryland Rule 16-609(a)-(c) (Prohibited Transactions),
and Md. Code Ann., Bus. Occ. & Prof. (1989, 2010 Repl. Vol.) § 10-306 (Trust Money
Restrictions).
Circuit Court for Prince George’s County
Case No. CAE13-03396
Argued: June 4, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 88
September Term, 2012
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
VAUGHN MILES MUNGIN
______________________________________
Barbera, C.J.
Harrell
Battaglia
Greene
Adkins
McDonald
Watts,
JJ.
______________________________________
Opinion by Watts, J.
Harrell and Battaglia, JJ., concur.
______________________________________
Filed: July 18, 2014
This attorney discipline proceeding concerns a Maryland lawyer who: (1)
negligently mishandled his attorney trust account in connection with nine separate client
matters; (2) withdrew cash from his attorney trust account on three separate occasions;
and (3) failed to properly account for and disburse settlement funds in a prompt fashion.
Vaughn Miles Mungin (“Mungin”), Respondent, a member of the Bar of
Maryland, was retained by various clients in personal injury cases, all of which were
settled pursuant to agreements. On March 22, 2011, Capital One, N.A. (“Capital One”),
the holder of Mungin’s attorney trust account, notified the Attorney Grievance
Commission of Maryland (“the Commission”), Petitioner, that a check in the amount of
$2,000 had been presented without sufficient funds present in the attorney trust account,
resulting in an overdraft in the amount of $1,548.84.
On February 26, 2013, on the Commission’s behalf, Bar Counsel filed in this
Court a “Petition for Disciplinary or Remedial Action” against Mungin, charging him
with violating Maryland Lawyers’ Rules of Professional Conduct (“MLRPC”) 1.1
(Competence), 1.15 (Safekeeping Property), 8.4(b) (Criminal Act), 8.4(c) (Dishonesty,
Fraud, Deceit, or Misrepresentation), 8.4(d) (Conduct That Is Prejudicial to the
Administration of Justice), and 8.4(a) (Violating the MLRPC), Maryland Rule 16-607
(Commingling of Funds), Maryland Rule 16-609 (Prohibited Transactions), and Md.
Code Ann., Bus. Occ. & Prof. (1989, 2010 Repl. Vol.) (“BOP”) § 10-306 (Trust Money
Restrictions).
On March 12, 2013, we designated the Honorable Crystal Dixon Mittelstaedt (“the
hearing judge”) of the Circuit Court for Prince George’s County to hear this attorney
discipline proceeding. On July 8 and 25, 2013, the hearing judge conducted a hearing.
On October 18, 2013, the hearing judge filed in this Court findings of fact and
conclusions of law, concluding that Mungin had violated MLRPC 1.1, 1.15(a), 1.15(d),
8.4(d), and 8.4(a), Maryland Rule 16-609(a)-(c), and BOP § 10-306, but had not violated
MLRPC 8.4(b) or MLRPC 8.4(c). 1
On June 4, 2014, we heard oral argument. For the below reasons, we indefinitely
suspend Mungin from the practice of law in Maryland with the right to apply for
reinstatement after six months.
BACKGROUND
In her opinion, the hearing judge found the following facts, which we summarize.
On March 7, 2005, this Court admitted Mungin to the Bar of Maryland. In 2006,
Mungin became a solo practitioner and opened an office in Greenbelt, Maryland. On or
about March 21, 2011, Mungin presented a check in the amount of $2,000, drawn on his
attorney trust account, for payment to Capital One, the holder of his attorney trust
account. Presentment of the check caused an overdraft of the attorney trust account in the
amount of $1,548.84.
On or about April 7, 2011, Mungin received from Bar Counsel a certified letter
requesting an explanation for the overdraft. On August 30, 2011, Bar Counsel
subpoenaed Mungin’s attorney trust account records for the period between May 1, 2009,
1
At the hearing, Bar Counsel withdrew the charges that Mungin violated MLRPC
1.15(b), (c), and (e), and Maryland Rule 16-607. Accordingly, the hearing judge did not
determine whether Mungin violated those MLRPC or Maryland Rule 16-607.
-2-
and June 30, 2011. The records revealed that, in May 2010, Mungin made three cash
withdrawals from his attorney trust account totaling $500: one withdrawal of $100 in
cash and two withdrawals of $200 in cash. Bar Counsel discovered that Mungin had
mishandled his attorney trust account in connection with nine separate client matters.
Trina Coore Matter
On May 11, 2009, Mungin deposited into his attorney trust account a check in the
amount of $8,000 on behalf of his client, Trina Coore (“Coore”), received pursuant to a
settlement in Coore’s personal injury case. Of the settlement funds, $1,743.83 was to be
paid to Coore’s medical providers, and $2,665 comprised Mungin’s attorney’s fees.
Specifically, $1,146 was to be paid to Physiotherapy Associates, $561.09 was to be paid
to Doctor’s Community Hospital, and $36.74 was to be paid to Doctor’s Community
Hospital/ER Division. On May 13, 2009, Mungin transferred $5,000 in funds from his
attorney trust account to his operating account. On May 20, 2009, Mungin issued to
Coore a check in the amount of $3,219.90, drawn on Mungin’s attorney trust account.
In June 2009, Mungin failed to maintain $1,743.83 in the attorney trust account for
the outstanding balances owed to Coore’s medical providers. On June 9, 2009, Mungin’s
attorney trust account balance fell to $565. On June 24, 2009, Mungin was out of trust 2
in the Coore matter, and Mungin’s attorney trust account balance fell to $28.75.
On July 7, 2009, Mungin issued a second check to Coore in the amount of
$451.97, drawn on Mungin’s attorney trust account. On the same day, Coore and
2
Being “out of trust” means lacking sufficient funds in an attorney trust account
for payment to clients and/or third parties.
-3-
Mungin signed Coore’s settlement report, which stated: “I hereby approve the entire
settlement and distribution made herein and assume full responsibility for all bills
incurred by me in connection with this accident not listed above[.]” (Capitalization
omitted). Coore’s settlement report also stated: “Amended Settlement because of
Doctor’s Community Hospital partial payment bill.” The settlement report listed the
partial payment to Doctor’s Community Hospital as $109.12.
On July 14, 2009, Mungin issued checks to Coore’s medical providers on Coore’s
behalf in the following amounts: $1,146 to Physiotherapy Associates; $109.12 to
Doctor’s Community Hospital; and $36.74 to Doctor’s Community Hospital/ER
Division. The check issued to Doctor’s Community Hospital on Coore’s behalf was
mistakenly issued in the amount of $109.12, instead of $561.09. Mungin did not pay the
remaining balance of $451.97 owed to Doctor’s Community Hospital; and the second
check to Coore on July 7, 2009, in the amount of $451.97, was issued in error and should
have been issued to Doctor’s Community Hospital instead.
Bruce Joyner Matter
On June 29, 2009, Mungin deposited into his attorney trust account a check in the
amount of $7,200 on behalf of his client, Bruce Joyner (“Joyner”), received pursuant to a
settlement in Joyner’s personal injury case. Of the settlement funds, $4,678.32 was to be
paid to Joyner’s medical providers, and $2,258.68 comprised Mungin’s attorney’s fees.
Specifically, $142.32 was to be paid to Laurel Regional Hospital Emergency Room, $299
was to be paid to Laurel Regional Hospital Doctors Visit, and $4,237 was to be paid to
New Carrollton Therapy Center. On June 29, 2009, Joyner and Mungin signed Joyner’s
-4-
settlement report, which stated: “I hereby approve the entire settlement and distribution
made herein and assume full responsibility for all bills incurred by me in connection with
this accident not listed above.” (Capitalization omitted). Joyner’s settlement report listed
distributions to the three medical providers, even though the liens were not satisfied until
February 2010.
On July 6, 2009, Mungin issued to Joyner a check in the amount of $3,500, drawn
on his attorney trust account. On October 22, 2009, Mungin issued to Joyner a second
check in the amount of $298 as reimbursement of funds that Joyner had paid to an
emergency room.
Between June 29, 2009, and December 11, 2009, Mungin transferred funds from
his attorney trust account to his operating account. On December 11, 2009, Mungin’s
attorney trust account balance fell to -$4.92. Mungin was out of trust in the Joyner
matter. On February 16, 2010, Mungin issued a check to New Carrollton Therapy Center
on Joyner’s behalf in the amount of $1,000, and issued a second check to Laurel Regional
Hospital on Joyner’s behalf in the amount of $139.47. After receiving the settlement
funds in the Joyner matter on June 29, 2009, Mungin paid himself $64,200 in attorney’s
fees, 3 but failed to timely satisfy the liens owed to Joyner’s medical providers.
3
The hearing judge did not explain how she calculated this figure. From our
review of the record, it appears that the figure is approximately the amount that Mungin
paid himself in attorney’s fees between June 29, 2009, and February 16, 2010.
-5-
Waikia Williams Matter
On July 21, 2009, Mungin deposited into his attorney trust account a check in the
amount of $8,700 on behalf of his client, Waikia Williams (“Williams”), received
pursuant to a settlement in Williams’s personal injury case. Of the settlement funds,
$1,250.50 was to be paid to Williams’s three medical providers, and $2,900 comprised
Mungin’s attorney’s fees. From July 23, 2009, through July 29, 2009, Mungin
transferred $3,850 from his attorney trust account to his operating account.
On July 29, 2009, Mungin issued to Williams a check in the amount of $4,549.50,
drawn on his attorney trust account. On the same day, Mungin issued checks to two of
Williams’s medical providers on Williams’s behalf in the amounts of $100.50 and $150.
On December 11, 2009, Mungin’s attorney trust account balance fell to -$4.92, and the
third medical provider had an outstanding lien in the amount of $1,000. From July 21,
2009, until February 16, 2010, Mungin was required to continuously maintain $1,000 in
trust for payment to the third medical provider; Mungin failed to do so. On February 16,
2010, Mungin issued a check to the third medical provider on Williams’s behalf in the
amount of $1,000. The issuance of the check to the third medical provider invaded trust
monies held for other clients and/or third parties.
Jonathan Roberts Matter
On August 7, 2009, Mungin deposited into his attorney trust account a check in
the amount of $8,500 on behalf of his client, Jonathan Roberts (“Roberts”), received
pursuant to a settlement in Roberts’s personal injury case. Of the settlement funds,
$3,719.20 was to be paid to Roberts’s medical providers, and $2,300 comprised
-6-
Mungin’s attorney’s fees. Specifically, $1,719.20 was to be paid to Physiotherapy
Associates (“Physiotherapy”), and $2,000 was to be paid to Bezak Chiropractic and
Rehabilitation (“Bezak”). From August 7, 2009, through August 13, 2009, Mungin
transferred $4,000 from his attorney trust account to his operating account. After
receiving the settlement funds, Mungin received telephone calls from Physiotherapy and
Bezak, which requested payment of their outstanding liens. Mungin failed to satisfy the
liens at that time, and instead transferred funds that should have been used to satisfy the
liens from his attorney trust account to his operating account.
On December 11, 2009, Mungin’s attorney trust account balance fell to -$4.92.
On May 20, 2010, for the first time, Mungin disbursed settlement funds in the Roberts
matter, when he issued to Roberts a check in the amount of $2,480, drawn on his attorney
trust account. In September 2012, over three years after receiving the settlement funds,
Mungin satisfied the medical liens owed to Physiotherapy and Bezak on Roberts’s behalf.
Specifically, on September 28, 2012, Mungin issued checks to Physiotherapy and Bezak
on Roberts’s behalf, drawn on his operating account because the funds had not been
maintained in his attorney trust account.
Tekema Baker Matter
On or about October 29, 2009, Mungin deposited into his attorney trust account a
check in the amount of $4,000 on behalf of his client, Tekema Baker (“Baker”), received
pursuant to a settlement in Baker’s personal injury case. Of the settlement funds, $1,000
was to be paid to Rising Health Chiropractors (“Rising Health”), Baker’s medical
provider, and $1,333.33 comprised Mungin’s attorney’s fees. On October 30, 2009,
-7-
Mungin transferred $2,600 from his attorney trust account to his operating account. On
November 6, 2009, Mungin issued to Baker a check in the amount of $1,556.67, drawn
on Mungin’s attorney trust account. On the same day, Baker and Mungin signed Baker’s
settlement report, which stated: “I hereby approve the entire settlement and distribution
made herein and assume full responsibility for all bills incurred by me in connection with
this accident not listed above[.]” (Capitalization omitted).
In December 2009, there were several dates on which Mungin failed to maintain
$1,000 in his attorney trust account for the outstanding balance owed to Rising Health.
On December 11, 2009, Mungin’s attorney trust account balance fell to -$4.92.
Mungin’s attorney trust account balance remained below $1,000 until December 15,
2009, when other client funds replenished Mungin’s attorney trust account. On
December 24, 2009, on Baker’s behalf, Mungin finally issued to Rising Health a check in
the amount of $1,000.
Michael Jenkins Matter
On November 24, 2009, Mungin deposited into his attorney trust account a check
in the amount of $4,200 on behalf of his client, Michael Jenkins (“Jenkins”), received
pursuant to a settlement in Jenkins’s personal injury case. Of the settlement funds,
$1,830 was to be paid to Rising Health, Jenkins’s medical provider, and $1,300
comprised Mungin’s attorney’s fees. Between November 24, 2009, and December 9,
2009, Mungin transferred funds from his attorney trust account to his operating account.
On December 9, 2009, after receiving a reduction from Rising Health (from $1,830 to
$1,500), Mungin issued to Jenkins a check in the amount of $1,500, drawn on Mungin’s
-8-
attorney trust account.
On December 11, 2009, Mungin’s attorney trust account balance fell to -$4.92.
As of March 19, 2010, Mungin’s attorney trust account balance was $283.10. At various
times since receiving the settlement funds on November 24, 2009, Mungin was out of
trust in the Jenkins matter in the amount of $1,500. On April 13, 2010, on Jenkins’s
behalf, Mungin finally issued to Rising Health a check in the amount of $1,500, using
other client funds deposited into the attorney trust account after March 19, 2010.
Robin Whitehurst Matter
On February 2, 2010, Mungin deposited into his attorney trust account a check in
the amount of $7,000 on behalf of his client, Robin Whitehurst (“Whitehurst”), received
pursuant to a settlement in Whitehurst’s personal injury case. Of the settlement funds,
$1,000 was to be paid to Optimum Care Center, Whitehurst’s medical provider, and
$2,800 comprised Mungin’s attorney’s fees. From February 2, 2010, through March 12,
2010, Mungin transferred $19,600 from his attorney trust account into his operating
account. On March 12, 2010, Mungin issued to Whitehurst a check in the amount of
$3,050, drawn on his attorney trust account.
From February 2, 2010, until June 4, 2010, Mungin was required to continuously
maintain $1,000 in trust for the Whitehurst matter for payment to Optimum Care Center;
Mungin failed to do so. As of March 19, 2010, Mungin’s attorney trust account balance
was $283.10. On April 22, 2010, Mungin’s attorney trust account balance fell to $6.77.
On June 4, 2010, on Whitehurst’s behalf, Mungin finally issued to Optimum Care Center
a check in the amount of $1,000. The check’s issuance invaded funds deposited after
-9-
receipt of the settlement funds in the Whitehurst matter.
Troy James Matter
On May 14, 2010, Mungin deposited into his attorney trust account a check in the
amount of $14,000 on behalf of his client, Troy James (“James”), received pursuant to a
settlement in James’s personal injury case. Of the settlement funds, $2,501.80 was to be
paid to Optimum Care, James’s medical provider, and $4,666.66 comprised Mungin’s
attorney’s fees. From May 17, 2010, until May 21, 2020, Mungin transferred $6,400 in
attorney’s fees from his attorney trust account to his operating account. On May 18,
2010, Mungin received confirmation from Optimum Care that the total outstanding
balance owed by James would be reduced from $2,501.80 to $2,000. On May 19, 2010,
Mungin issued to James a check in the amount of $6,431.54, drawn on Mungin’s attorney
trust account. On May 26, 2010, Mungin issued to James a second check in the amount
of $500, drawn on his attorney trust account.
From May 28, 2010, through June 2, 2010, Mungin’s attorney trust account
balance was $18.98. During that time period, Mungin failed to maintain $2,000 in his
attorney trust account for the outstanding balance owed to Optimum Care. On June 4,
2010, using other client funds deposited into his attorney trust account, on James’s
behalf, Mungin issued to Optimum Care a check in the amount of $2,000.
LaToya Evans Matter
On August 2, 2010, Mungin deposited into his attorney trust account a check in
the amount of $4,750 and on August 3, 2010, Mungin deposited into his attorney trust
account a check in the amount of $4,750; both checks were deposited on behalf of his
- 10 -
client, LaToya Evans (“Evans”), received pursuant to a settlement in Evans’s personal
injury case. Of the settlement funds (totaling $9,500), $3,200 was to be paid to Align
Spine Health Center (“Align Spine”), Evans’s medical provider, and $3,000 comprised
Mungin’s attorney’s fees. Between August 4, 2010, and August 14, 2010, Mungin
transferred $6,350 from his attorney trust account to his operating account.
On August 30, 2010, Mungin issued a check to Evans in the amount of $3,500,
drawn on Mungin’s attorney trust account. Mungin should have maintained an additional
$3,200 in his attorney trust account for the outstanding balance owed to Align Spine. As
of September 2, 2010, however, Mungin’s attorney trust account balance was $250.78.
Thus, Mungin failed to continuously maintain $3,200 in trust for Align Spine. As of
September 7, 2010, other client funds had replenished Mungin’s attorney trust account.
On September 7, 2010, Mungin issued to Align Spine on Evans’s behalf a check in the
amount of $3,200. The check’s issuance invaded trust monies held for other clients
and/or third parties.
Hearing Judge’s Other Findings
Starting in late 2008, Mungin began experiencing a series of personal difficulties
that impacted his ability to maintain the business portion of his solo practice. During that
time period, Mungin reconciled his attorney trust account once a month, at best. In Fall
2008, Mungin’s wife was arrested for drunk driving following a single-car accident. It
was discovered that Mungin’s wife suffered from alcoholism and would need to undergo
treatment. This caused a strain on the marriage and eventually led to Mungin’s and his
- 11 -
wife’s divorce in 2011. And, starting in 2009, Mungin’s son 4 began exhibiting symptoms
of serious substance abuse, eventually leading to his son’s placement into rehabilitation
facilities. As a result of these difficulties, at the end of 2008, on numerous occasions,
Mungin visited a psychologist.
Mungin did not deny that he mishandled his attorney trust account with respect to
nine separate client matters. Mungin has since hired an accounting firm to help keep
track of his books and reconcile his accounts. Mungin reconciles his attorney trust
account weekly, and has not had any problems with his attorney trust account since Bar
Counsel filed the Petition for Disciplinary or Remedial Action.
Numerous character reference letters were submitted on Mungin’s behalf,
including letters from judges in Prince George’s County and from practicing attorneys. 5
All of the letters’ authors describe Mungin as trustworthy. The evidence was insufficient
to support a finding that Mungin engaged in dishonesty, fraud, or deceit in handling his
attorney trust account.
STANDARD OF REVIEW
In an attorney discipline proceeding, this Court reviews for clear error the hearing
judge’s findings of fact, and reviews without deference the hearing judge’s conclusions
of law. See Md. R. 16-759(b)(1) (“The Court of Appeals shall review de novo the
[hearing] judge’s conclusions of law.”); Md. R. 16-759(b)(2)(B) (“The Court shall give
4
At the hearing, Mungin testified that, in 2009, his son was a junior in high school.
5
At the time the letters were admitted into evidence, Mungin’s counsel stated that
the letters from the judges in Prince George’s County were obtained pursuant to
subpoena.
- 12 -
due regard to the opportunity of the hearing judge to assess the credibility of witnesses.”);
see also Attorney Grievance Comm’n v. Fader, 431 Md. 395, 426, 66 A.3d 18, 36 (2013).
As to exceptions, in Attorney Grievance Comm’n v. Bocchino, 435 Md. 505, 529,
80 A.3d 222, 235 (2013), we recently reiterated:
When a party files exceptions to the hearing judge’s findings of fact,
those exceptions will be overruled so long as the findings are not clearly
erroneous. When a party takes exception to the hearing judge’s conclusions
of law, those exceptions will be overruled so long as the conclusions are
supported by the facts found.
(Citations omitted).
DISCUSSION
A. Findings of Fact
Mungin does not except to any of the hearing judge’s findings of fact. The
Commission excepts to the hearing judge’s finding that Mungin visited a psychologist on
numerous occasions at the end of 2008. We sustain the exception. The record
demonstrates that, despite Mungin’s testimony that he visited a psychologist, in actuality,
from September 2008 through December 2008, Mungin visited Fritz Gollery, a Licensed
Clinical Professional Counselor, at Christian Counseling Associates, Inc. 6 Thus, the
hearing judge’s finding that Mungin visited a psychologist was clearly erroneous, as
Mungin actually visited a Licensed Clinical Professional Counselor.
6
Specifically, in a letter dated July 3, 2013, from Kenneth O. Williams, the
Executive Director of Christian Counseling Associates, Inc., to Mungin, Williams
provided Mungin a list of dates on which Mungin was “seen by Fritz Gollery, LCPC[.]”
“LCPC” is the acronym for the professional title “Licensed Clinical Professional
Counselor.”
- 13 -
B. Conclusions of Law
Mungin does not except to any of the hearing judge’s conclusions of law. The
Commission excepts to the hearing judge’s conclusion that Mungin did not violate
MLRPC 8.4(c). For the below reasons, we overrule the exception and uphold all of the
hearing judge’s conclusions of law.
MLRPC 1.1 (Competence)
“A lawyer shall provide competent representation to a client. Competent
representation requires the legal knowledge, skill, thoroughness and preparation
reasonably necessary for the representation.” MLRPC 1.1. A lawyer’s “failure to
properly maintain [a client’s] settlement monies in his [or her attorney trust] account
demonstrates his [or her] incompetence pursuant to [MLRPC] 1.1.” Attorney Grievance
Comm’n v. James, 385 Md. 637, 662, 870 A.2d 229, 244 (2005) (citation and internal
quotation marks omitted) (first alteration in original). A lawyer fails to properly maintain
a client’s settlement monies in an attorney trust account by having a negative attorney
trust account balance and not maintaining sufficient funds in the attorney trust account
for payment to clients. See id. at 662, 870 A.2d at 244.
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated MLRPC 1.1. Mungin failed to properly maintain clients’ settlement
monies in his attorney trust account. On two occasions, December 11, 2009, and March
21, 2011, Mungin’s lack of attention to, and proper maintenance of, his attorney trust
account resulted in a negative balance. Mungin also failed to promptly and accurately
disburse settlement funds to third-party medical providers.
- 14 -
Specifically, on Coore’s behalf, Mungin erroneously issued to Doctor’s
Community Hospital a check in the amount of $109.12, instead of $561.09, the amount
owed. Mungin failed to pay the remaining balance, resulting in a lien owed to Doctor’s
Community Hospital. In addition, despite depositing settlement funds into his attorney
trust account on May 11, 2009, Mungin did not issue checks to medical providers on
Coore’s behalf until July 14, 2009. In the Joyner matter, despite depositing settlement
funds into his attorney trust account on June 29, 2009, Mungin did not issue checks to
medical providers on Joyner’s behalf until February 16, 2010. In the Williams matter,
despite depositing settlement funds into his attorney trust account on July 21, 2009,
Mungin did not issue a check to one of Williams’s three medical providers on Williams’s
behalf until February 16, 2010. In the Roberts matter, despite depositing settlement funds
into his attorney trust account on August 7, 2009, Mungin did not issue checks to
Physiotherapy and Bezak on Roberts’s behalf until September 28, 2012, over three years
after receipt of the funds. In the Baker matter, despite depositing settlement funds into
his attorney trust account on October 29, 2009, Mungin did not issue a check to Baker’s
medical provider on Baker’s behalf until December 24, 2009. In the Jenkins matter,
despite depositing settlement funds into his attorney trust account on November 24, 2009,
Mungin did not issue a check to Jenkins’s medical provider on Jenkins’s behalf until
April 13, 2010. In the Whitehurst matter, despite depositing settlement funds into his
attorney trust account on February 2, 2010, Mungin did not issue a check to Whitehurst’s
medical provider on Whitehurst’s behalf until June 4, 2010. In the James matter, despite
depositing settlement funds into his attorney trust account on May 14, 2010, Mungin did
- 15 -
not issue a check to James’s medical provider on James’s behalf until June 4, 2010. And,
in the Evans matter, despite depositing settlement funds into his attorney trust account on
August 2, 2010, and August 3, 2010, Mungin did not issue a check to Evans’s medical
provider on Evans’s behalf until September 7, 2010.
Finally, Mungin failed to maintain sufficient funds in his attorney trust account for
payment to medical providers; i.e., Mungin was out of trust in client matters. For
example, in the Baker matter, in December 2009, there were several dates on which
Mungin failed to maintain $1,000 in his attorney trust account for the outstanding balance
owed to Rising Health. On December 11, 2009, Mungin’s attorney trust account balance
fell to -$4.92. Mungin’s attorney trust account balance remained below $1,000 until
December 15, 2009, when other client funds replenished Mungin’s attorney trust account.
On December 24, 2009, on Baker’s behalf, Mungin finally issued to Rising Health a
check in the amount of $1,000.
MLRPC 1.15(a) and 1.15(d) (Safekeeping Property)
MLRPC 1.15(a) provides:
A lawyer shall hold property of clients or third persons that is in a lawyer’s
possession in connection with a representation separate from the lawyer’s own
property. Funds shall be kept in a separate account maintained pursuant to Title
16, Chapter 600 of the Maryland Rules, and records shall be created and
maintained in accordance with the Rules in that Chapter. Other property shall be
identified specifically as such and appropriately safeguarded, and records of its
receipt and distribution shall be created and maintained. Complete records of the
account funds and of other property shall be kept by the lawyer and shall be
preserved for a period of at least five years after the date the record was created.
“MLRPC 1.15(a) requires an attorney to maintain client funds in a trust account, separate
from the attorney’s personal and operating funds. . . . [A lawyer]’s failure to maintain his
- 16 -
[or her] trust account separately from his [or her] personal funds [] violates MLRPC
1.15(a).” Attorney Grievance Comm’n v. Moeller, 427 Md. 66, 73, 46 A.3d 407, 411
(2012) (citations omitted).
MLRPC 1.15(d) provides:
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.
A lawyer violates MLRPC 1.15(d) by “fail[ing] to promptly deliver settlement funds to
[a] client and to medical providers[,]” and by failing to “pay a client’s debt from
settlement funds[.]” Attorney Grievance Comm’n v. Roberts, 394 Md. 137, 163-64, 904
A.2d 557, 573 (2006).
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated MLRPC 1.15(a) and 1.15(d). As to MLRPC 1.15(a), Mungin failed to
hold property of clients or third parties in trust separate from his own property. Indeed,
on several occasions, Mungin transferred funds from his attorney trust account to his
operating account, even though the funds should have been held in trust for the third-
party medical providers. For example, in the Williams matter, on July 21, 2009, Mungin
deposited the settlement check received on Williams’s behalf. Of the settlement funds
received, $1,250.50 was to be paid to Williams’s three medical providers and $2,900
comprised Mungin’s attorney’s fees. From July 23, 2009, through July 29, 2009, Mungin
transferred $3,850 from his attorney trust account to his operating account. In other
- 17 -
words, Mungin transferred funds due and owing to Williams’s medical providers to
himself via his operating account instead of holding the funds in his attorney trust
account for payment to Williams’s medical providers.
As to MLRPC 1.15(d), Mungin failed to promptly deliver to clients and third-party
medical providers settlement funds to which they were entitled. For example, in the
Roberts matter, despite depositing settlement funds into his attorney trust account on
August 7, 2009, Mungin did not disburse settlement funds to Roberts until May 20, 2010,
almost ten months after the funds had been received, and he did not issue checks to
Physiotherapy and Bezak on Roberts’s behalf until September 28, 2012, more than three
years after the funds had been deposited. In another example, in the Jenkins matter,
despite depositing settlement funds into the attorney trust account on November 24, 2009,
Mungin did not issue a check to Rising Health on Jenkins’s behalf until April 13, 2010,
almost five months after the funds had been received. In the Joyner matter, despite
depositing settlement funds into his attorney trust account on June 29, 2009, Mungin did
not issue checks to medical providers on Joyner’s behalf until February 16, 2010, more
than seven months after the funds had been deposited. In the Williams matter, despite
depositing settlement funds into his attorney trust account on July 21, 2009, Mungin did
not issue a check to one of Williams’s three medical providers on Williams’s behalf until
February 16, 2010, nearly seven months after the funds had been deposited.
- 18 -
MLRPC 8.4(b) (Criminal Act)
MLRPC 8.4(b) provides: “It is professional misconduct for a lawyer to . . . commit
a criminal act that reflects adversely on the lawyer’s honesty, trustworthiness or fitness as
a lawyer in other respects[.]”
Here, the hearing judge was correct in concluding that clear and convincing
evidence did not establish that Mungin had violated MLRPC 8.4(b). Nothing in the
hearing judge’s findings of fact indicates that Mungin committed a criminal act or
engaged in criminal activity. 7
MLRPC 8.4(c) (Dishonesty, Fraud, Deceit, or Misrepresentation)
MLRPC 8.4(c) provides: “It is professional misconduct for a lawyer to . . . engage
in conduct involving dishonesty, fraud, deceit[,] or misrepresentation[.]” “It is well
settled that this Court will not find a violation of M[L]RPC 8.4(c) when the attorney’s
misconduct is the product of ‘negligent rather than intentional misconduct.’” Attorney
Grievance Comm’n v. DiCicco, 369 Md. 662, 684, 802 A.2d 1014, 1026 (2002) (citations
omitted). For example, in DiCicco, id. at 685, 802 A.2d at 1027, we overruled Bar
Counsel’s exception to the hearing judge’s conclusion that the respondent had not
violated MLRPC 8.4(c), explaining: “While the evidence presented supports [the hearing
judge]’s finding of negligence or sloppiness, there is no clear and convincing evidence on
this record to support a finding of dishonesty, fraud, deceit, or misrepresentation on [the
r]espondent’s part. We further note the lack of clear and convincing evidence of
7
Because neither party excepts to the hearing judge’s conclusion of law, we do not
further address MLRPC 8.4(b).
- 19 -
misappropriation or actual financial loss to any of [the r]espondent’s clients.”
Here, the hearing judge concluded that Mungin had not violated MLRPC 8.4(c),
reasoning as follows:
There is no evidence in this case that supports a finding that [Mungin]
engaged in any conduct involving dishonesty, fraud, deceit, or
misrepresentation. It is this Court’s finding that [Mungin] negligently
mishandled his trust account on numerous occasions which led to the Rule
violations enumerated above. The sole evidence that Bar Counsel
presented to provide a violation of [MLRPC] 8.4(c) was the fact that
[Mungin] had his clients sign statements of account which showed amounts
due to healthcare providers which had not yet been paid. The
uncontroverted testimony in this case was that [Mungin] never told his
clients that those funds had already been paid at the time they signed the
statements of account. Therefore, the Court does not find any evidence of
dishonesty, fraud, deceit, or misrepresentation in the handling of those
statements of account.
Bar Counsel contends that the hearing judge’s findings establish that Mungin
engaged in intentional misappropriation of funds in violation of MLRPC 8.4(c) by failing
to pay third-party medical providers funds held in his attorney trust account and instead
paying himself (by transferring those funds from his attorney trust account to his
operating account), despite notice of the outstanding liens owed to medical providers. 8
8
At the hearing, during opening statement, Bar Counsel stated that Mungin
violated MLRPC 8.4(c) “by creating settlement memoranda and having [his clients] sign
that reflected that the third party lien holders had been paid when [Mungin] had not yet
satisfied those liens at the time.” Bar Counsel stated that Mungin violated MLRPC 8.4(b)
by misappropriating funds in the Roberts matter, when he was put on notice that liens
were outstanding to Bezak and Physiotherapy, but continued to transfer funds from his
attorney trust account to his operating account instead of satisfying the liens. Later,
during closing argument, Bar Counsel also contended that Mungin violated MLRPC
8.4(c) by knowingly transferring funds in the Roberts matter from his attorney trust
account to his operating account despite knowledge of the outstanding liens due to Bezak
and Physiotherapy.
- 20 -
Mungin responds that, before the hearing judge, Bar Counsel argued only that he
violated MLRPC 8.4(c) by creating settlement reports, which reflected that the third-
party medical providers had been paid when, in actuality, the liens owed to those medical
providers had not been satisfied at the time the settlement reports were signed. Mungin
contends that the argument now advanced by Bar Counsel was not made before the
hearing judge and that, in any event, Bar Counsel failed to produce evidence that he
engaged in intentional—as opposed to negligent—conduct.
We overrule Bar Counsel’s exception and explain. At the hearing, during opening
statement, Bar Counsel argued that Mungin violated MLRPC 8.4(c) “by creating
settlement memoranda and having [his clients] sign that reflected that the third party lien
holders had been paid when [Mungin] had not yet satisfied those liens at the time.”
During the hearing, Mungin testified that he never represented to clients that the
settlement reports meant that the medical providers had already been paid. 9 To the extent
that Bar Counsel argued that Mungin had violated MLRPC 8.4(c) based on dishonesty,
fraud, deceit, or misrepresentation related to the settlement reports, on this record, we do
not disturb the hearing judge’s conclusion that the evidence did not demonstrate that
Mungin had lied to or deceived his clients—or that he had misrepresented information to
clients—concerning the settlement reports.
9
At one point during the hearing, Mungin testified that he did not indicate to
clients whether their liens were paid at the time the clients signed the settlement reports,
and explained: “When the client signs a settlement sheet, these are the proposed charges.
Often I’m negotiating with the medical providers, but I try and show the client what the
settlement looks like from the perspective of this is the amount of the check.”
- 21 -
During closing argument, Bar Counsel contended that the errors with Mungin’s
attorney trust account were not “small errors just based on negligence[,]” and that
Mungin had knowledge of outstanding liens owed to medical providers, but
“intentionally did not pay the lien holders and, instead, [] transferred his fees from the
trust account to the operating account.” Bar Counsel specifically argued that Mungin
violated MLRPC 8.4(c) by “fraudulently misappropriat[ing] funds intended for third
parties for his personal benefit[.]” In arguing that Mungin’s conduct was intentional, Bar
Counsel identified only the bank records and settlement reports as evidence of Mungin’s
intent; i.e., Bar Counsel offered no other evidence substantiating the argument that
Mungin’s actions were intentionally dishonest, fraudulent, or deceitful. 10 “[T]he number
of times [an attorney trust] account was out of trust, standing alone, does not compel
finding a violation of M[L]RPC 8.4(c) if other evidence supports a finding that the
misconduct is the result of negligence, as opposed to fraud or dishonesty.” DiCicco, 369
Md. at 682-83, 802 A.2d at 1025 (citations omitted). On this record, we decline to
conclude that the hearing judge erred in concluding that clear and convincing evidence
did not establish that Mungin had violated MLRPC 8.4(c).
Here, the hearing judge did not clearly err in finding that Mungin’s mishandling of
his attorney trust account was negligent rather than intentional. Mungin testified about
10
We are aware of Bar Counsel’s argument that Mungin knew not to transfer funds
from his attorney trust account after receiving telephone calls from Physiotherapy and
Bezak. At oral argument, however, Bar Counsel candidly acknowledged a dearth of
information as to the timing of the telephone calls from Physiotherapy and Bezak in
relation to Mungin’s conduct. We are not persuaded to disturb the hearing judge’s
findings regarding Mungin’s mental state.
- 22 -
the personal issues that he experienced beginning in 2008, and the hearing judge made
findings of fact concerning those difficulties. Specifically, at the hearing, Mungin
testified that the personal difficulties in his life occurred during the same period of time
when he had issues with his attorney trust account. According to Mungin, he was
“overwhelm[ed,]” but “did what [he] could to work professionally, but the business part
of [his] practice was suffering.” In addition, numerous character reference letters were
submitted by judges and practicing attorneys on Mungin’s behalf attesting to his
trustworthiness. In light of Mungin’s testimony and the character letters submitted on his
behalf, absent additional evidence of intent, the hearing judge’s finding that Mungin’s
misconduct was negligent rather than intentional was not clearly erroneous.
As to the transfer of funds from his attorney trust account to his operating account,
the Joint Stipulation of Facts that the parties submitted to the hearing judge states that the
transfers of funds from Mungin’s attorney trust account to his operating account
following disbursement of settlement funds involved transfer of attorney’s fees arising
from various client matters, not just in connection with the personal injury matter that had
been settled. Thus, clear and convincing evidence does not establish that Mungin
intentionally misappropriated funds in a particular client matter after receipt and deposit
of the settlement funds by, for example, transferring all or more than his attorney’s fees
in that particular client matter. And, in the Roberts matter, as to the liens that were paid
to Physiotherapy and Bezak years after settlement funds had been received, at the
hearing, Mungin testified that, although he received telephone calls from the medical
providers concerning the liens after the settlement funds were deposited into his attorney
- 23 -
trust account, it was not until Bar Counsel’s audit in 2012 that he realized the medical
providers had not been paid. Mungin testified that, once he realized the liens had not
been paid, he paid them on Roberts’s behalf. In other words, with his testimony, Mungin
sought to establish that the non-payment of the two liens was due to an oversight, i.e.,
negligence, not an intent to withhold or misappropriate the monies from the medical
providers.
On this record, we will not disturb the hearing judge’s conclusion that clear and
convincing evidence did not establish that Mungin had violated MLRPC 8.4(c), and did
not clearly err in finding that Mungin’s misconduct was negligent rather than intentional.
Cf. Attorney Grievance Comm’n v. Whitehead, 405 Md. 240, 248, 257, 950 A.2d 798,
803, 808 (2008) (A lawyer violated MLRPC 8.4(c) by misappropriating funds where he
removed $600,000 of conservatorship assets without court approval and utilized the funds
to purchase real property titled in his name and that of his business partner; such conduct
was not attributable to negligence, but rather was an intentional misappropriation.);
Attorney Grievance Comm’n v. Cherry-Mahoi, 388 Md. 124, 159, 155, 879 A.2d 58, 80,
77 (2005) (A lawyer violated MLRPC 8.4(c) by “willfully and knowingly
misappropriat[ing] client funds that were to be held in trust” when she “withdrew nearly
double the agreed upon fee that she was entitled to receive,” used the funds for business
and personal purposes, and used personal funds to pay the client’s outstanding bills to
- 24 -
medical providers only after the client filed a complaint with Bar Counsel.). 11
MLRPC 8.4(d) (Conduct That Is Prejudicial to the Administration of Justice)
“It is professional misconduct for a lawyer to . . . engage in conduct that is
prejudicial to the administration of justice[.]” MLRPC 8.4(d). “In general, a[ lawyer]
violates [MLRPC] 8.4(d) when his or her conduct impacts negatively the public’s
perception or efficacy of the courts or legal profession.” Attorney Grievance Comm’n v.
Dore, 433 Md. 685, 696, 73 A.3d 161, 167 (2013) (citation and internal quotation marks
omitted). A lawyer’s mishandling of his or her attorney trust account can also constitute
11
We are aware that “[v]iolations of M[L]RPC 8.4(c) may occur . . . negligently.”
Attorney Grievance Comm’n v. Nwadike, 416 Md. 180, 193, 6 A.3d 287, 295 (2010),
reconsideration denied (Nov 18, 2010) (citation and footnote omitted). For example, in
Attorney Grievance Commission v. Calhoun, 391 Md. 532, 570, 894 A.2d 518, 540
(2006), this Court held that a lawyer violated MLRPC 8.4(c) where the lawyer violated
her representation agreement by failing to properly communicate with her client
regarding legal fees and costs. Although the lawyer did not make an affirmative
misrepresentation, the lawyer “misle[]d [her client] by silence and lack of
communication.” Id. at 548, 894 A.2d at 527.
Here, although the hearing judge found that Mungin’s mishandling of his attorney
trust account was negligent, the hearing judge did not find that Mungin engaged in any
conduct—intentional or negligent—involving dishonesty, fraud, deceit, or
misrepresentation; i.e., unlike in Calhoun, 391 Md. at 570, 894 A.2d at 540, there was no
finding of intentional or negligent dishonesty, fraud, deceit, or misrepresentation.
Significantly, before the hearing judge, Bar Counsel argued only that Mungin
intentionally misrepresented facts on settlement memoranda and intentionally
misappropriated funds. In other words, Bar Counsel contended only that Mungin
violated MLRPC 8.4(c) through intentional conduct, and never asserted that Mungin
violated MLRPC 8.4(c) through negligent conduct. Although Mungin’s negligent
mishandling of his attorney trust account certainly constitutes misconduct, based on the
record in this case—i.e., Bar Counsel’s not having argued that Mungin violated MLRPC
8.4(c) through negligent conduct, and the hearing judge’s not having found that Mungin’s
negligent conduct involved dishonesty, fraud, deceit, or misrepresentation—we refrain
from concluding that the hearing judge erred in determining that Mungin had not violated
MLRPC 8.4(c).
- 25 -
conduct that is prejudicial to the administration of justice. See Attorney Grievance
Comm’n v. Post, 350 Md. 85, 99, 710 A.2d 935, 942 (1998) (“[T]he manner in which the
respondent handled his [attorney trust] account in this case is conduct prejudicial to the
administration of justice.”).
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated MLRPC 8.4(d). Mungin mishandled his attorney trust account with
respect to nine separate client matters. Mungin was out of trust in each of the nine client
matters, and failed to properly account for and disburse funds in a prompt fashion.
Several disbursements to clients and third-party medical providers resulted in an invasion
of trust monies held for other clients and/or third parties. And, medical providers did not
receive prompt payment of liens as a result of Mungin’s misconduct. Considered in its
entirety, Mungin’s misconduct in handling of his attorney trust account and clients’ funds
reflected negatively on the legal profession.
MLRPC 8.4(a) (Violating the MLRPC)
“It is professional misconduct for a lawyer to[] violate or attempt to violate the
[MLRPC], knowingly assist or induce another to do so, or do so through the acts of
another[.]” MLRPC 8.4(a).
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated MLRPC 8.4(a). As discussed above, Mungin violated MLRPC 1.1,
1.15(a), 1.15(d), and 8.4(d).
- 26 -
Maryland Rule 16-609 (Prohibited Transactions)
Maryland Rule 16-609 provides:
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.
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated Maryland Rule 16-609. As to Maryland Rule 16-609(a), Mungin used
funds from his attorney trust account for unauthorized purposes. Mungin transferred
funds from his attorney trust account to his operating account, despite that the funds
should have been held in trust for third-party medical providers; i.e., Mungin transferred
funds due and owing to clients’ medical providers to himself via his operating account
instead of holding the funds in the attorney trust account for payment to the medical
providers.
As to Maryland Rule 16-609(b), in May 2010, Mungin made three cash
withdrawals from his attorney trust account totaling $500. Specifically, on May 7, 2010,
Mungin withdrew $100 in cash from the attorney trust account; on May 10, 2010,
Mungin withdrew $200 in cash from the attorney trust account; and on May 12, 2010,
- 27 -
Mungin withdrew $200 in cash from the attorney trust account. These cash withdrawals
violated Maryland Rule 16-609(b)’s prohibition against cash withdrawals from attorney
trust accounts.
Finally, as to Maryland Rule 16-609(c), on two occasions, Mungin’s attorney trust
account’s balance was negative. On December 11, 2009, Mungin’s attorney trust account
balance fell to -$4.92. And, on March 22, 2011, Mungin presented a check in the amount
of $2,000 for payment, drawn on his attorney trust account, even though there were
insufficient funds in his attorney trust account. Presentment of the check caused an
overdraft of his attorney trust account in the amount of $1,548.84. Thus, these two
occasions show that Mungin violated Maryland Rule 16-609(c)’s prohibition against
maintaining a negative balance in an attorney trust account.
BOP § 10-306 (Trust Money Restrictions)
BOP § 10-306 provides: “A lawyer may not use trust money for any purpose other
than the purpose for which the trust money is entrusted to the lawyer.”
Here, clear and convincing evidence supports the hearing judge’s conclusion that
Mungin violated BOP § 10-306. Mungin transferred from his attorney trust account to
his operating account funds that should have been used to pay his clients’ medical
providers in nine separate client matters. In addition, on several occasions, Mungin’s
issuance of checks to medical providers on behalf of his clients resulted in the use of trust
monies held for other clients and/or third parties.
- 28 -
C. Sanction
Bar Counsel recommends that this Court disbar Mungin. At oral argument, Bar
Counsel conceded that, if we overrule the exception to the hearing judge’s conclusion
that Mungin had not violated MLRPC 8.4(c), then this Court should indefinitely suspend
Mungin. In his filing, Mungin recommended that he be indefinitely suspended “with the
right to []apply [for reinstatement] in a reasonable time[.]” At oral argument, Mungin’s
counsel recommended that Mungin be indefinitely suspended with the right to apply for
reinstatement after six months.
In Dore, 433 Md. at 717, 73 A.3d at 180, we stated:
When we impose sanctions, our goal is not to punish the [lawyer], but
rather to protect the public and the public’s confidence in the legal
profession [and] to deter other lawyers from violating the [MLRPC]. To
achieve this goal, the sanction should be commensurate with the nature and
the gravity of the misconduct and the intent with which it was committed.
In determining an appropriate sanction, we often refer to the American Bar
Association’s Standards for Imposing Lawyer Sanctions, which focus on
the nature of the ethical duty violated, the lawyer’s mental state, the extent
of the actual or potential injury caused by the lawyer’s misconduct, and any
aggravating or mitigating [factor]s.
(Second alteration in original) (citations and internal quotation marks omitted).
Here, as to the nature of the ethical duty violated, Mungin violated MLRPC 1.1,
1.15(a), 1.15(d), and 8.4(d), Maryland Rule 16-609(a)-(c), and BOP § 10-306 by
mishandling his attorney trust account in connection with nine separate client matters; by
withdrawing cash from his attorney trust account on three separate occasions; and by
failing to properly account for and disburse settlements funds in a prompt fashion. As to
Mungin’s state of mind, we let stand the hearing judge’s finding that Mungin was
- 29 -
negligent in handling and maintaining his attorney trust account. As to the actual or
potential injury that Mungin’s misconduct caused, Mungin’s misconduct negatively
impacted the public’s perception of the legal profession and caused payments to medical
providers to be delayed by months and, in the case of the Roberts matter, years.
In Attorney Grievance Comm’n v. Davy, 435 Md. 674, 710, 80 A.3d 322, 342-43
(2013), we stated:
Aggravating factors include: (a) prior disciplinary offenses; (b)
dishonest or selfish motive; (c) pattern of misconduct; (d) multiple
offenses; (e) bad faith obstruction of the [attorney] disciplinary
proceeding[] by intentionally failing to comply with rules or orders of the
[Commission]; (f) submission of false evidence, false statements, or other
deceptive practices during the [attorney] disciplinary proce[eding]; (g)
refusal to acknowledge wrongful nature of conduct; (h) vulnerability of the
victim; (i) substantial experience in the practice of law; [and] (j)
indifference to making restitution.
(Some alterations in original) (citation and paragraph breaks omitted).
Here, we note that the hearing judge did not find any aggravating factors. Upon
our independent review, the only aggravating factors that we discern are that Mungin
engaged in a pattern of misconduct related to nine separate client matters and committed
multiple offenses by violating several MLRPC, Maryland Rule 16-609(a)-(c), and BOP §
10-306.
The following constitute mitigating factors:
(a) absence of a prior disciplinary record; (b) absence of a dishonest or
selfish motive; (c) personal or emotional problems; (d) timely good faith
efforts to make restitution or to rectify consequences of misconduct; (e) full
and free disclosure to [the Commission] or cooperative attitude toward [the
attorney discipline] proceeding[]; (f) inexperience in the practice of law; (g)
character or reputation; (h) physical disability; (i) mental disability or
chemical dependency including alcoholism or drug abuse when: (1) there is
- 30 -
medical evidence that the [lawyer] is affected by a chemical dependency or
mental disability; (2) the chemical dependency or mental disability caused
the misconduct; (3) the [lawyer]’s recovery from the chemical dependency
or mental disability is demonstrated by a meaningful and sustained period
of successful rehabilitation; and (4) the recovery arrested the misconduct
and recurrence of that misconduct is unlikely; (j) delay in [the attorney]
disciplinary proceeding[]; (k) imposition of other penalties or sanctions; (l)
remorse; [and] (m) remoteness of prior offenses.
Davy, 435 Md. at 712-13, 80 A.3d at 344 (some alterations in original) (citation and
paragraph breaks omitted).
Here, although the hearing judge did not label her findings as mitigation, the
hearing judge detailed facts concerning Mungin’s personal difficulties beginning in 2008,
Mungin’s trustworthy character as supported by character reference letters, and Mungin’s
lack of dishonesty, fraud, or deceit. Upon our independent review, we determine that the
record establishes the following mitigating factors: absence of a prior disciplinary record,
personal problems, and character.
In DiCicco, 369 Md. at 688, 686, 666, 802 Md. at 1028, 1027, 1016, even though
the Commission recommended disbarment, this Court indefinitely suspended from the
practice of law with the right to apply for reinstatement after ninety days a lawyer who
violated MLRPC 1.15(a), 1.15(c), and 8.4(a), and Maryland Rules 16-607(a) and 16-609.
In DiCicco, id. at 675-76, 802 A.2d at 1021-22, the lawyer mishandled his attorney trust
account and used the account as it if were “his personal bank account.” The hearing
judge found that there were numerous instances of attorney trust account misconduct
involving different clients, including unexplained low and negative balances, and
disbursement checks that “appeared to be unrelated to any” client matters. Id. at 670-71,
- 31 -
802 A.2d at 1018-19. Nonetheless, the hearing judge determined, and the evidence
demonstrated, that the lawyer’s misconduct was due to “negligence or sloppiness[.]” Id.
at 685, 802 A.2d at 1027. In determining the appropriate sanction, we stated that
“[w]here there is no finding of intentional misappropriation, [] and where the misconduct
did not result in financial loss to any of the respondent’s clients, an indefinite suspension
ordinarily is the appropriate sanction.” Id. at 687, 802 A.2d at 1028 (citation omitted).
Indeed, we recognized that “[a]lthough ignorance does not excuse a violation of [the
MLRPC], a finding with respect to the intent with which a violation was committed is
relevant on the issue of the appropriate sanction.” Id. at 687, 802 A.2d at 1028 (citations
omitted). In concluding that the lawyer’s misconduct warranted an indefinite suspension,
we considered several mitigating factors, including the absence of fraudulent intent, the
lack of evidence that any client suffered a financial loss due to the lawyer’s misconduct,
and the lack of a prior disciplinary record. Id. at 688, 802 A.2d at 1028.
In Attorney Grievance Comm’n v. Sperling, 380 Md. 180, 193, 183-84, 844 A.2d
397, 405, 399 (2004), this Court indefinitely suspended from the practice of law with the
right to apply for reinstatement after ninety days a lawyer who violated MLRPC 1.15 and
8.4(a), and BOP § 10-306 where the lawyer’s attorney trust account had a large shortfall
for which the lawyer could not account. We stated that the lawyer committed “quite
serious” violations by having a large shortfall in his attorney trust account, which
“place[d] clients and others whose funds [were] being held at some considerable risk.”
Id. at 192, 844 A.2d at 404-05. Nonetheless, we observed that “no one suffered as a
result of the shortfall and the findings of fact and conclusions of law of the hearing
- 32 -
[judge], particularly as they relate to the cause of the violations and the intent with which
they were committed, [were] most favorable to the respondent.” Id. at 192, 844 A.2d at
405. Cf. Attorney Grievance Comm’n v. Obi, 393 Md. 643, 660, 656, 648, 904 A.2d
422, 432, 429-30, 424 (2006) (This Court suspended from the practice of law for thirty
days a lawyer who violated MLRPC 1.15(a) and 8.1(b), and Maryland Rules 16-607 and
16-609, where the lawyer, among other things, withdrew $20,000 in cash from his
attorney trust account; we observed that “an attorney may not avoid responsibility for
misuse of his or her trust account, even if such misuse was inadvertent.” (Citations and
internal quotation marks omitted)).
Here, Mungin’s mishandling of his attorney trust account in connection with nine
separate client matters over a sustained period of time, as well as his withdrawal of cash
from the attorney trust account, are serious matters. Mungin’s misconduct, however, was
determined to be due to negligence; i.e., Mungin’s misconduct did not result in a finding
of intentional dishonesty, fraud, or deceit. Mungin’s character for trustworthiness was
attested to in numerous character letters submitted on Mungin’s behalf from judges and
practicing lawyers. In addition, Mungin’s misconduct occurred during a period of
personal difficulties in his life involving his wife and teenaged son. The hearing judge
found that Mungin’s personal life has stabilized, and Mungin has taken steps to ensure
that his attorney trust account is properly maintained, including reconciling his account
on a weekly basis and hiring an accounting firm to assist with bookkeeping and
reconciliation. Considering these circumstances, and determining that Mungin’s
misconduct merits a sanction that is greater than the indefinite suspension with the right
- 33 -
to apply for reinstatement after ninety days in DiCicco and Sperling, we conclude that the
appropriate sanction for Mungin’s violations of MLRPC 1.1, 1.15(a), 1.15(d), 8.4(d), and
8.4(a), Maryland Rule 16-609(a)-(c), and BOP § 10-306 is an indefinite suspension from
the practice of law in Maryland with the right to apply for reinstatement after six months.
The suspension shall begin thirty days after the date on which this opinion is filed.
IT IS SO ORDERED; RESPONDENT SHALL
PAY ALL COSTS AS TAXED BY THE CLERK
OF THIS COURT, INCLUDING COSTS OF ALL
TRANSCRIPTS, PURSUANT TO MARYLAND
RULE 16-761(B), FOR WHICH SUM
JUDGMENT IS ENTERED IN FAVOR OF THE
ATTORNEY GRIEVANCE COMMISSION
AGAINST VAUGHN MILES MUNGIN.
- 34 -
Circuit Court for Prince George’s County
Case No. CAE13-03396
Argued: June 4, 2014
IN THE COURT OF APPEALS
OF MARYLAND
Misc. Docket AG No. 88
September Term, 2012
______________________________________
ATTORNEY GRIEVANCE COMMISSION
OF MARYLAND
v.
VAUGHN MILES MUNGIN
______________________________________
Barbera, C.J.,
Harrell,
Battaglia,
Greene,
Adkins,
McDonald,
Watts,
JJ.
______________________________________
Concurring Opinion by Harrell, J.,
which Battaglia, J., joins.
______________________________________
Filed: July 18, 2014
I join reluctantly the Court’s opinion. Although I can find no fault with the
opinion, I write separately to note that, on this record, although no MLRPC 8.4(c)
violations were proved, I am left to wonder whether such a violation occurred. Under the
circumstances, to doubt is to affirm the hearing judge. Nonetheless, I wish to highlight
the basis of my mixed emotions for consideration in the prosecution of future cases.
At oral argument, we posed to Bar Counsel and Mungin’s Counsel several
questions regarding the three cash withdrawals Mungin made from his trust account
within a six-day span in May 2010. Although the lawyers were in agreement that those
three cash withdrawals violated Maryland Rule 16-609(b), they offered very little
explanation for why the withdrawals were made or the documentary vehicle(s) by which
they were accomplished. Mungin’s Counsel supposed that the record might reflect that
the cash withdrawals were made by Mungin in the belief that they represented earned
fees. If so, the fees would have been associated necessarily with specific client matters.
When pressed, however, Mungin’s Counsel could not recollect whether the record
identified the particular client matters for which Mungin may have believed that he
earned such fees; nor could he explain whether the timing of Mungin’s work on any
client’s behalf coincided with the “taking” of such fees, in the form of cash, from trust
monies. Similar questioning of Bar Counsel about the record shed no additional light on
these matters.
Upon my post-argument review of the record, it turns out that the state of
counsels’ recollection at argument could be explained by a dearth of evidence regarding
the cash withdrawals. I located only two pieces of evidence regarding the cash
withdrawals: (1) a transactional summary of Mungin’s trust account showing, among all
of his other transactions, that he made cash withdrawals of $100.00, $200.00, and
$200.00 on 7, 10, and 12 May 2010, respectively; and, (2) an entry in the parties’ Joint
Stipulations before the hearing judge stating that “[i]n May 2010, [Mungin] made three
(3) cash withdrawals from his trust account totaling $500.00.” Although Mungin testified
at the hearing in the Circuit Court, and in a pre-trial deposition (the transcript of which
was offered into evidence at the hearing), not a snippet of his direct or cross-examination
testimony in either circumstance touched on the three cash withdrawals. Furthermore, no
withdrawal slip, check, or other demonstrative record of the modality by which either
cash withdrawal transaction was accomplished could be found in the evidence.
In my view, the cash withdrawals are highly suggestive of intentional
misappropriations of trust funds. Intentional misappropriations violate MLRPC 8.4(c).
See Attorney Grievance Comm’n v. Whitehead, 405 Md. 240, 257, 950 A.2d 798, 808
(2008) (collecting cases). Such misappropriations are “‘act[s] infected with deceit and
dishonesty and will result in disbarment in the absence of compelling extenuating
circumstances justifying a lesser sanction.’” Attorney Grievance Comm'n v. Glenn, 341
Md. 448, 490, 671 A.2d 463, 483 (1996) (quoting Attorney Grievance Comm'n v. Ezrin,
312 Md. 603, 608-09, 541 A.2d 966, 969 (1973)). I do not contend that every Rule 16-
609(b) violation constitutes an intentional misappropriation of trust monies. There must
still be some evidence (direct or circumstantial) from which at least an inference may be
drawn reasonably that MLRPC 8.4(c) was violated also. Had there been some evidence
to show that the cash withdrawals constituted intentional misappropriations, I would have
-2-
agreed with Bar Counsel that, despite Mungin’s personal problems occurring at the time
of the cash withdrawals, disbarment would be the appropriate sanction. See Attorney
Grievance Comm'n v. Vanderlinde, 364 Md. 376, 415, 773 A.2d 463, 486 (2001).
Bar Counsel did not argue, however, that the cash withdrawals constituted
MLRPC 8.4(c) violations. 1 Rather, Bar Counsel argued that the alleged MLRPC 8.4(c)
violations occurred when Mungin executed settlement agreements with certain clients
that contained inaccurate lien information. See Maj. slip op. at 20-22. As a result, we are
left to swallow the hearing judge’s Findings of Fact and Conclusions of Law that
inferentially the cash withdrawals were just another result of the pervasive negligent
conduct of Mungin in this case. Thus, I am constrained to concur in the Court’s opinion
that Bar Counsel failed to prove the alleged MLRPC 8.4(c) violations, as the hearing
judge concluded.
Judge Battaglia authorizes me to state that she joins the views expressed in this
concurring opinion.
1
This is understandable, with the benefit of hindsight, because the record was
undeveloped on the underlying circumstances of the cash withdrawals.
-3-