Attorney Grievance v. Nussbaum

Annotate this Case

Download PDF

Attorney Grievance Commission v. Jerold K. Nussbaum, Misc. Docket, AG No. 3 8, September Term 2006. [Maryland Rules of Professional C onduct, 1.15 (a), (b) and (c) (Saf ekeep ing Pro perty), 8.1 (a) (Bar Admission and Disciplinary Matters), 8.4 (b), (c) and (d) (M isconduct); Maryland Rules 16-607 (Comm ingling of Fun ds) and 16 -609 (Pro hibited Tra nsactions); S ection 10-306 of the Business Occupations and Professions Article (Misuse of Trust Money); held: Respondent repe ated ly violated MRPC 8.4 (b), (c) and (d) by willfully misappropriating client funds. Respondent violated MRPC 8.1 (a) by submitting altered ledgers to Assistant Bar Counsel which purported to have been made contemporaneously with the transactions in the escrow account but which were actually made after the fact and did not accurately reflect Respondent s handling of client funds. Respondent repeatedly violated MRPC 1.15 (a) and (c), Maryland Rule 16-609, and Section 10-306 of the Business Occupations and Professions Article by improperly withdrawing client funds, including monies for legal fees or expenses, from his escrow account for his own use, for the use of other clients, or for use of a third party. Respondent violated MRPC 1.15 (b) and Maryland Rule 16-607 by depositing personal loans and rents into his escrow account. For these violations, Responden t shall be disbarred.] IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 38 September Term, 2006 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. JEROLD K. NUSSBAUM Bell, C.J. Raker Harrell Battaglia Greene Wilner, Alan M. (retired, specially assigned), Cathell, Dale R. (retired, specially assigned), JJ. Opinio n by Batta glia, J. Filed: October 15, 2007 The Attorney Grievance Commission of Maryland ( Petitioner ), acting through Bar Counsel and pursuant to M aryland Rule 16-751 (a), 1 filed a petition for disciplinary or remedial action a gainst R espon dent, Je rold K . Nussb aum, on September 6, 2006. Bar Counsel alleged that R esponde nt violated M aryland Rule s of Profe ssional Conduct ( MRPC ), 1.15 (Safekeepin g Property), 2 8.1 (Bar Admission and Disciplinary Matters), 3 1 Maryland Rule 16-751 (a) provides: (a) Comm encem ent of discip linary or remedial action. (1) Upon approval of [the Attorney Grievance] Commission. Upon approval or direction of the [Attorney Grievance] Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.15 provides in relevant pa rt: (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 ow n property. Fu nds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropr iately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. (b) A lawyer may deposit the lawyer s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for the purpose. (c) Unless the client gives inf ormed co nsent, conf irmed in writing, to a different arrangement, a lawyer shall de posit into a client trust account legal fees and expense s that have b een paid in advance, to be w ithdrawn by the lawyer only as fees are earned or expenses incurred. (d) Upon re ceiving fu nds or othe r 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 (contin ued...) and 8.4 (Miscondu ct),4 as well as Maryland Rule 16-607 (Com mingling of Fun ds),5 Maryland Rule 16-609 (P rohibited Transactions), 6 and Section 10-306 of the Business 2 (...continued) permitted by law or by agreement with the client, a lawyer sh all promptly deliver 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 promptly render a ful l accounting rega rding suc h pro perty. 3 Rule 8.1 p rovides in re levant part: An applicant for admission or reinstatement to the bar, or a lawyer in con nection w ith a disciplinary m atter, shall not: (a) kno wingly m ake a f alse state ment o f mater ial fact . . . . 4 Rule 8.4 p rovides in re levant part: It is professional misconduct for a lawyer to: * * * (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 . . . . 5 Maryland R ule 16-60 7 provide s in relevant p art: (a) General prohibition. An attorn ey or law firm may depos it in an attorney trust account only those funds required to be deposited in that account b y Rule 16-60 4 or perm itted to be so deposited by section b. of this Rule. 6 Maryland Rule 16-609 states: An attorney or law firm may not borrow or pledge any funds (contin ued...) 2 Occupations and Professions Article, Maryland Code (2000, 2004 Repl. Vol.) (Misuse of Trust Mone y).7 In accordance with Maryland Rules 16-752 (a) and 16-75 7 (c), 8 we referred the petition to Judge Barry Hug hes of the Circuit Co urt for Carroll County for an evidentiary hearing and to make findings of fact and recommend conclusions of law. Ju dge Hu ghes held 6 (...continued) required by these Rules 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. An instrument drawn on an attorney trust account may not be d rawn payable to cash o r to bearer. 7 Section 10-306 of the Business Occupations and Professions Article, Maryland Code (2000, 2004 Repl. Vol.), 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. 8 Maryland Rule 16-752 (a) states: (a) Order. Upon the filing of a Petition for Disciplinary or Remedial Action, the Court of Appeals may enter an order designating a judge of any circuit court to hear the action and the clerk responsible for ma intaining the record. The order of designation shall require the judge, after consultation with Bar Counsel and the attorney, to enter a scheduling order defining the extent of discovery and setting dates for the completion of discovery, filing of motions, and hearing. Maryland R ule 16-75 7 (c) states in p ertinent part: (c) Findin g and conclu sions. The judge shall prep are and file or dictate into the record a statement of the judge s findings of fact, including findings as to any evidence regarding remedial action, and conclusions of law. 3 a hearing on April 26, 2007, and issued Findings of Fact and Conclusions of Law on June 7, 2007, in which he found by clear and convincing evidence that Respondent had violated MRPC 1.15 (a) and (b), 8.1 (a), and 8.4 (c) an d (d), Maryland Rules 16-607 and 16-609, and Section 10-306 of the Business Occupations and Professions Article: FINDINGS OF FACT 1. Testimony The Respondent graduated from the George Mason Law School in 1979, and began his legal career drafting legislation for the Maryland Legislature. He then became a tax lawyer for the Internal Revenue Service, and left that employment in 1984 after obtaining his Masters degree in Taxation from Georgetown University Law School. Respondent was admitted to practice before the Maryland Court of Appeals on December 1, 1983. Since 1984, the Respondent has been in private practice in Annapolis, Maryland. He is presently 55 years of age. From 1984 un til the present, his practice has remain ed the sam e, with approxim ately 80% of his time being spent on tax work and the balance being spent in estate s and trust, co rporate and Chapter 11 bankruptcy. Since 1984, the Respondent estimates that he has represented over 2000 clients, with about 5% of those representing ba nkruptcy clients and 95 % of tho se clients representing referrals from other attorneys. The events giving rise to this case took place between the years of 4 2003 and 2005. During that time, the Respondent testified that he maintained a single attorney escrow account at the Bank of America. He also maintained an operating account and a payroll account for his law practice, which are referred to herein as operating account(s). In 2003 the Respondent began experiencing severe cas h flow d ifficulties w ith his practice, rend ering him unable to pay the normal operating expenses of his law prac tice. Spe cific ally, the Respondent testified that in 2003 over $150,000.00 in receivables became uncollectible by virtue of failed bankruptcy reor ganization plans. Genera lly, such fees are contingent upon the success of the reorganization, and, when unsucce ssful, the receivables earned in the reorganization effort become uncollectible. A second difficulty encountered by the Respondent was the delay in the Ba nkru ptcy C ourt approving earne d fee s. Or dina rily, bankruptcy fees are placed in escrow, bu t can only be dispersed upo n Bankruptcy Co urt approva l. Those disbursements took up to 120 days to be approved. As a result of these difficulties, the Respondent sought and exhausted financing assistance, but was still unable to meet the operating expens es of his law firm or to repay his personal loans. It should be noted that in the year 2003, the Respondent earned approximately $106,000.00 from the practice of law and was paying college tuition for two of his children. What developed in 2003, and extended into 2005, was a practice whereby the Respondent would write checks from his escrow account, and 5 deposit the same in his operating accounts a s needed and with out legal auth ority. When funds were due to be remitted to proper payees fro m his escrow account, he would cover shortfalls with short term borrowing, by the deposit of rents he receive d for offic e space in his law bu ilding in An napolis and/or by using other clients funds. The Respondent testified that all proper payments from his escrow accounts were made when due, and no client at any time suffered any financial loss as a result of this practice. This misuse of escrow funds continued through 2004 and into 2005. The Respondent earned income of approximately $106,000.00 in 2003, $110,000.00 in 2004 and $90,000.00 in 2005 from the practice of law, and had assumed full responsibility for payment o f college ex penses fo r two of h is children. This misuse of escrow funds came to the attention of the Petitioner when a check drawn on the Respon dent s escro w accou nt was retu rned by his bank for insufficient funds. Once contacted by the Petitioner, Respondent submitted to the Petitioner ledgers w hich he told the Petitioner had been contemp oraneou sly maintained by Respon dent and w hich accu rately docume nted his handling of client funds in th e escrow account. N either represe ntation was true. Eight months later, Respondent voluntarily made known to Mr. Botluk that he had made several entries after the fact, that the ledgers contained multiple inaccuracies and did not accurately reflect his handling of the client funds. 6 When the Court contacted the parties to set the Scheduling Order, the Respondent indicated that he would work with Mr. Botluk to prepare a stipulation of facts. R esponde nt further ind icated that he would only present character witnesses at the judicial hearing. In addition to the Respondent, four individuals appeared at the hearing before this Court and testified on the Responden t s behalf. These individuals were Attorney John Newell, the Honora ble James F. S chneider, Ju dge of the U.S. Ban kruptcy Cou rt for the District of Maryland, Attorney Stephen Krohn, and the Honorable Joseph P. Manck, former Administrative Judge of the Circuit Court for Anne Arundel Cou nty. Attorney John Newell testified that he has been an attorney since 1973, specializes in estates and has been a Court Auditor for the Circuit Court for Anne Arundel County since June of 1981. Mr. Newell testified that he has known the Respondent for approximately fourteen years; that he has referred work to the Respondent; that the Respondent s handling of those referred matters was outstanding and that Respon dent s char acter and in tegrity were without blemish ; that Mr. Newell recruited the Respondent as Counsel to the Anne Arundel County Library Board, that the Res ponden t gave gen erously of his time, attended every meeting, and also devo ted much time as cou nsel to the Anne Arundel County Library Foundation. Notwithstanding having read the Stipulation (P etitioner s Ex hibit 1), Mr. Newell s opinion of the Respondent 7 has not chang ed. Mr. N ewell was of the opinion that the Respondent has the capacity to do a lot of good for a lot of people in the future, even if he is not practicing law. The Honorable James F. Schneider, Judge of the U.S. Bankruptcy Court for the District of Maryland has been a judge for twenty-five years. Judge Schneider testified he knows the Respondent from his bankruptcy practice, and he evaluated the Respondent s competence as being within the top 25% of b ankruptcy attorneys appearing bef ore him. Based on numerous professional contacts with the Respondent, Judge Schneider opined that the Responden t s character an d integrity were the highe st and that h is trustworthiness was paramount. The Judge could not recall any complaint from anyone concerning Respondent s legal work. Notwithstanding having read the Stipulation, Judge Schneider stated that he still trusts the R esponde nt. Attorney Stephen Krohn testified that he has been an attorney for 29 years and is a fellow of the American Academy of M atrimonial Lawyers. Mr. Krohn has known the Respondent for 30 years, and developed a personal friendship with the Respondent approximately 20 years ago . Since knowing the Respondent, Mr. Krohn has referred tax and bankruptcy matters to him, and has neve r received a ny complain t concernin g the Resp ondent s legal performance. Mr. Krohn testified that he has never had an occasion to be concerned about Respondent s character or integrity. 8 Having read the Stipulation in this case, Mr. Krohn offered the opinion that while he still has trust in the character and integrity of the Respondent, he believes that some trust needs to be rebuilt. He characterized the Respondent as a good, caring and lov ing fath er. Also testifying was the Honorable Joseph P. Manck former Administrative Judge of the Circuit Court for Anne Arundel County. Judge Manck has b een o n the bench since 1 989, and he perso nally k new th e Respondent as a child, lost contact, bu t then becam e reacqua inted with h im while both practic ed law. A s a lawyer, Jud ge Man ck referred clients to the Respon dent, and opined that the Respondent s character and integrity were of the highest order. Having read the Stipulation, Judge Manck affirmed the same level of trust in the Respondent and offered the opinion that the Respondent can still b e of b enef it to th e public a s an a ttorn ey. 2. Stipulation (Exhibit 1) What follows are stipulated facts. For convenience in referencing individual transactions, each is abbreviated by the client or da te designatio n in bold type. Respondent deposited $ 30,000.00 in escrow on November 13, 2003, belonging to client, the B ankruptcy E state of Le onard an d Ronn ie Canto r. He withdrew the $30,00 0.00, transfe rring the fun ds to his operating a ccount, between November 13 and December 9, 2003 (Cantor I). He paid $28,000.00 9 to the Cantor bankruptcy estate on December 24, 2003, using funds belonging to an unrelated client, Mount Oak, LLC (Mount Oak I). Funds for client Mount Oak, LLC were received by wire on December 18, 2003. Fo llowing th at deposit of $104,026.07 in his escrow account, the balance fell to $81,131.20 on December 22, 2003 (Mount Oak II). The full amount of the original deposit was wired out on Ap ril 19, 20 04. Respondent used funds belonging to an unrelated client, Richard Brien (which was deposited in the escrow account on March 3, 2004), to fund the disbursement to Mo unt Oa k, LLC . On January 9, 2004, Respondent deposited $8,000.00 belonging to the Cantor bankrup tcy case in escrow. A lthough h e made n o disbursem ent to or on behalf of Cantor, the balance in his escrow account was $2,240.06 on February 5, 2004 (Cantor II). He deposited an additional $6,000.00 on February 9, 2004, for a total of $14,000.00. His escrow account balance subseque ntly fell below $14,000.00 before he made any disbursements to or on behalf of Cantor. When he distributed funds to the Bankruptcy Trustee which was paid to the Cantor creditors, on June 28, 2004, he drew a check for $14,511.71, which exceeded the amount he was supposed to be holding for the client (Cantor III). Respondent received a wire deposit of $342,702.95 on behalf of client Richard T. Brien in his escrow account to Brien on March 3, 2004. That 10 amount was wired out of the escrow account on April 26, 2004. From March 29 th until April 21, 2004, Respondent did not maintain the full amount of Brien s deposit in his escrow a ccount (Brien). A deposit of $135,000.00 on April 22 nd on behalf of an unrelated client, James Riggleman, gave the account sufficient funds to permit R esponde nt to disburse Brien s fu nds on A pril 26 th (Riggleman). On April 6, 2004, Respondent deposited $1,500.00 in his escrow account from client Karen Lynn Jenkins. Respondent s escrow account balance was $510.48 on May 10, 2004 (Jenkins). Respondent returned $1,500.00 to Jenkins on October 19, 2005 by check nu mber 60 8 drawn on his escrow accou nt. Respondent deposited in his escro w accou nt $1,086.0 0 belongin g to client Tidew ater Ele vator o n Apr il 9, 200 4. By May 10, 2004, the balance in his escrow account was $510.48 (Tidewater I), even though there were no withdraw als related to this client. Respondent ha d transferred a total of $9,800 .00 from his escrow account to his operating account f rom M ay 3 to May 10, 2004 (May 2004). Betwee n April 9 and July 23, 2004, Respondent deposited a total of $1,517.11 in his escro w account fo r Tidewater Elevator. There are times when the escrow account balance fell below $1,517.11 (Tidewater II) after the last deposit and before Respondent returned the funds to the client on September 2, 2004. 11 When Respon dent transfe rred $35,0 00.00 fro m his escro w accou nt to his operating account, on April 2 0, 2004, he used funds held on behalf of clients Richard T. Brien and John McKenna (McKenna). As of April 26, 2004, Respondent was supposed to be holding $26,863.83 in his escrow account for client John McKenna. By May 10, 2004, after Resp ondent ha d transferre d $9,800 .00 to his own accounts, the balance in the escrow account was $510.48. In August and October 2005, Respondent paid Mr. McKenna using fund s belonging to other clients (August-October 2005). Respondent was supposed to be holding $ 2,500.00 b elonging to Excell Management from M ay 20, 20 04 unti l April 7 , 2005. Respon dent failed to maintain that balance in his escrow account (Excell). Respondent returned the $2,500.00 to Ex cell M anag eme nt by a check dated March 31, 2005, using funds received from an unrelated client, Black Hawk Security, on tha t date (Black Hawk). Respondent deposited $30,000.00 in his escrow account on July 6, 2004, for client Allan Percival (Percival I).1 The following day, the balance 1 Respondent testified that loans from family and friends were placed in escrow to replenish client shortages (hereinafter referred to as personal loans deposited in escrow ); that one such loan was in July of 2004 from a friend, Allan Per cival, whose $30,000.00 loan was deposited to escrow to cover 12 shortfalls. It therefore appears that the Stipulation mischaracterized this deposit as a client deposit, w hen in fac t it was a pe rsonal loan from A llan Perciva l. in Respondent s account was $12,923.28, although he made no disbursem ents related to Mr. Percival. On September 21 and 22, 2004, he disbursed two checks totaling $30,526.03 to Percival. Respondent had held no other funds on behalf of Percival to account for the additional $526.03 (Percival II). On July 7, 2004, Respondent deposited into the escrow account $25,000.00 belonging to Eastport Analytics (Eastport I).2 The follo wing day, the balance in the account was $12,923.28, although he had not made disbursem ents related to this clien t. On July 7 th, he transferred a total of $7,300.00 from his escrow account to his operating accounts. By July 31, 2004, the escrow account had a negative balance (Eastport II). He paid $25,00 0.00 to E astport A nalytics on Januar y 3, 2005 . _______________________ 2 Despite the Stipulation, Respondent testified that this money was actu ally a loan from a friend w ho own ed Eastpo rt. ________________________ On Augu st 6, 2004, Respondent deposited $13,000.00 in his escrow account belonging to his client, Liberty Metal, Inc.3 On August 10 th, _______________________ 3 Respondent testified that a small part of monies received from this client were for attorney s fees, but it is unclear whether such 13 fee had been earned. ________________________ Respondent transferred a portion of the Liberty Metal funds to his operating account. By Augu st 26, 2004 , Respon dent had a negative b alance in his escrow account. Funds belonging to Liberty Metal were disbursed to Horace Davis (August 11, 2004) (Liberty I) and J. Rigg leman (A ugust 25, 2004) (Liberty II) for matters unrelated to Liberty Metal. On December 6, 2004, Respondent paid $13,000.00 to U.S. Treasury for Liberty Metal fro m fund s in his escrow account. When Respondent transferred $1,000.00 to his operating account on August 10, 2004, he used funds belonging to Liberty Metal and Tidewater Elevator (Tidewater III). The transfer of $1,3000.00 from Respo ndent s escrow account to his operating account4 used funds he was to be holding for Olmo Brothers (Olmo), Allan Percival and Eastport Analytics. _______________________ 4 Which occurred on July 7, 2004 p er p. 4 of P etitioner s Ex hibit 2. ________________________ Respondent deposited in his escrow account $32,000.00 on June 8, 2005 on behalf of client Inez Brown from C arole S chwa rtz. Two days later, the balance in the escrow account was $13,946.26 (Brown I). On June 30, 14 2005, the balance was $18.46 (Brown II). The escrow account had a negative balance on July 14th (Brown III). Respondent had not disbursed the funds on behalf of his clients. On September 8, 2005, the $32,000 .00 was d isbursed to the United States Treasury on behalf of Brown. Respondent used funds belonging to clients Richard Epstein (Epstein) and Dennis Hayden (Hayden). Respondent transferred $1,000.00 to his operating account on June 30, 2005, leaving a balance of $18.43 in the escrow account when he was supposed to be holding $32,000.00 for Inez Brown (Brown II). On several occasions, Respondent deposited in his escrow account funds received for rent from othe r atto rneys using space in his office, Douglas Hollmann and Carolyn Krohn (personal rent) . Respondent deposited $20,000.00 in his escrow account on August 18, 2005. Those funds belonged to client, Precision Signs. On August 31, 2005, Responden t s escrow account balance was $654.69 (Precision). There were no disbursements from Respondent s escrow account related to Precision Signs between August 18 and August 31, 2005. Respondent disbursed $20,000.00 to Precision Signs on October 6 , 2005, usin g funds b elonging to an unrelate d client, Terry A ult (Ault I). Funds belonging to client Terry Ault in the amount of $55,469.39 w ere deposited in Respondent s escrow account on October 6, 2005. The balance in Respondent s account fell below tha t level on O ctober 13, 2 005. Terry A ult 15 was paid $55,469.39 on November 15, 2005, partially using funds belonging to Mid-Atlantic Nursing (Mid Atlantic). While Respondent was holding the funds for Terry Ault, he transferred a total of $30,200.00 to his own accounts. The transfer of $1,000.00 (Ault II) on October 17, 2005 and $1,500.00 on November 9, 2005 (Ault III) from Respo ndent s escrow account to his operating account was a use of Terry Ault s funds. In response to Bar C ounsel in this matter, Respondent submitted documents which he purported to be ledgers contemporaneously maintained by him documenting his handling of client f unds in his e scrow ac count. Respondent later acknowledged to Assistant Bar Counsel on the date of the Peer Review meeting in this matter that he had made several entries after the fact and that it did not accurately reflect his handling of client funds. Petitioner s review an d analysis of the bank reco rds pertaining to Responden t s escrow account did not establish that any client received less money than they we re entitled to rec eive. No c lients have f iled complaints alleging that they have not received all the funds to which they were entitled. CONCLUSIONS OF LAW 1. Safekee ping Prop erty. MR PC 1.15 provides th at: (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 16 in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguarded. Complete records of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. The Court finds by clear and convincing evidence that the Respondent failed to hold clients property by improperly withdrawing client funds from his escrow account for his own use, for the use of other clients, or for use of a third party in the following transactions: Cantor I, II and III; Mount Oak I and II; Brien; Rig gleman; Je nkins; Tid ewater I, II and III; May, 2004; McKenna; August-Octo ber 2005; Exce ll; Black Hawk ; Percival II; Eastport II; Liberty I and II; Olmo; Brown I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and Mid Atlantic. (b) A lawyer may deposit the lawyer s own funds in a client trust account for the sole purpose of paying bank service charges on that accou nt, but only in an amount necessary for the purpose. The Court find s by clear and c onvincin g evidence that the personal loans deposited in escrow, including Percival I and Eastport I, as well as personal rent violate this subsection. (c) Unless the client gives infor med co nsent, confirm ed in writing, to a different a rrangem ent, a lawy er shall dep osit into a client trust account legal fees and expenses that have been paid in advance, to be withdrawn by the lawyer only as fees are earned or expenses incurred. This record does not sup port a finding that any of the monies received 17 by the Respondent from his escrow account were for legal fees or expenses. Therefore, the Court cannot conclude by clear and convincing evidence that the Respondent violated this subsection. (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 agree ment w ith the client, a law yer shall promp tly deliver 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 promptly render a full accounting regarding such property. The Court cannot conclude by clear and convincing evidence that any of the prohibitions of this subsection have been violated. (e) When in the course of represen tation a lawyer is in possession of property in which two or more persons (one of whom may be the lawyer) claim interests, the property shall be kept separate b y the lawy er until the dis pute is resolved. The lawyer shall promptly distribute all portions of the property as to which the interests are not in dispute. There is no clear and convincing evidence that the Respondent ever received property in which two or more persons claimed interest. Therefore, this sub section has no t been v iolated. 2. Bar Admission and Disciplinary Matters. MR PC 8.1 p rovides tha t: . . . [A] lawyer in connection with . . . a disciplinary matter, shall not: (a) know ingly m ake a fa lse statem ent of m aterial fa ct . . . . The Court concludes by clear and convincing evidence that the 18 Respondent has violated this Rule by submitting altered ledgers to Assistant Bar Counsel which purported to have been made contemporaneously by Respondent with the transactions in his escrow account, when in fact the ledgers had been made after the fact and the ledgers did not accurately reflect Respondent s handling of client funds. 3. Miscon duct. MR PC 8.4 p rovides tha t: It is professional misconduct for a lawyer to: (b) commit a criminal act that reflects adversely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects; The Petition does not specify the criminal a ct the Resp ondent is alleged to have committed. At oral argument, the Petitioner argued only that this subsection dove tails with the Business Article de aling with misuse of trust money, using money belonging to clients that he had in his escrow accou nt for an unauth orized p urpose . As set forth in paragraph 6 below, the Respondent did violate the Business Article, but tha t is not a crimin al statute, and th erefore a v iolation is not necessarily a criminal act. The misuse of trust money in this case does not, by clear and convincing evidence, meet the statuto ry elements of theft or embezzlement; thus, this subsection has not been violated. (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; 19 The Court finds by clear and convincing evidence that the Respondent engaged in dishone sty and dece it/misrepresen tation by implicitly or ex plicitly misrepresenting to his clients that their escrow funds would be safeguarded, and that escrow funds disbursed were those being held by the Respondent on their behalf, when in fact they were not. In addition, the knowing submission of false ledgers violated this subsection. The follow ing tran saction s violate d this su bsectio n: Can tor I, II and III; Mount O ak I and II; Brien; Rigglem an; Jenkins; Tidew ater I, II and III; May, 2004; McKenna; August-October 2005; Excell; Black Hawk; Percival II; Eastport II; L iberty I and II; Olmo; Brown I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and Mid Atlantic. The Court does not find that Respondent s conduct involved fraud. (d) engage in conduct that is prejudicial to the administration of justice; Conduct is prejudicial to the administration of justice whe n it tends to bring the legal profession into disrepute. By clear and convincing evidence, the Court finds that the following transactions violated this subsection: Cantor I, II and III; Mount Oak I and II; Brien; Riggleman; Jenkins; Tidewater I and II; August-October 2005; Excell; Black Hawk; Pe rcival II; Eastport II; Liberty I and II; Tidewater III; Olmo; Brown I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and Mid Atlantic. 20 4. Commingling of Funds. Rule 16-607 provides: a. General Prohibition. An attorney or law firm m ay depos it in an attorney trust account only those funds required to be deposited in that account by Rule 16-604 or permitted to be so deposited by section b. of th is Rule. By clear and convincing evidence the Court finds that the following transac tions vio lated this Rule: P ercival I ; Eastpo rt I; and p ersona l rent. 5. Prohibited Transactions. Rule 16-609 provides: An attorney or law firm may not borrow or pledge any funds required by these Rules to be deposited in an attorney trust account . . . or use any funds for any unauthorized purpose. The Court finds by clear and convincing evidence that the following transactions violated this Rule: Cantor I, II and III; Mount Oak I and II; Brien; Riggleman; Jenkins; T idewater I, II a nd III; Ma y, 2004; Mc Kenna ; AugustOctober 2005; Excell; Black Hawk; Pe rcival II; Eastport II; Liberty I and II; Olmo; Brown I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and Mid Atlantic. 6. Mis use o f Tru st M oney. Md. Code An n., Bus. Occ. & Prof. §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. 21 The Cou rt finds by clear and convincing evidence that the following transactions violated this Rule: Cantor I, II and III; Mount Oa k I and II; Brien; Riggleman; Jenkins; Tidew ater I, II and III; M ay, 2004; M cKenn a; Augu stOctober 2005; Excell; Black Hawk; Percival II; Eastport II; Liberty I and II; Olmo; Brown I, II and III; Epstein; Hayden; Precision; A ult I, II and III; and Mid Atlantic. MITIGATING FACTORS By a preponderance of the evidence, the Court finds the following mitigation in th is case relating to Respo ndent s co nduct: 1. No client was explicitly misled. 2. No client suffered any financial harm. 3. All client obligations were timely discharged. 4. Respondent never harb ored any inten t to deprive a ny client of the timely access to escrow funds. 5. Respon dent neve r intended to defraud a ny client. 6. Respondent has enjoyed an excellent reputation in the legal co mmun ity for honesty, integrity, professional competence, reliability and client satisfaction. 7. Throughout his entire legal career, Respondent has volunteered his time and legal skills to m any non-pro fit causes for the betterme nt of his com mun ity, as well as performing pro bono work for individual clients. 22 8. Respon dent is remo rseful. 9. Respondent has not been the subject of any prior grievance. (emphasis in original). STANDARD OF REVIEW In proceedings involving attorney discipline, this Court has original and complete jurisdiction and cond ucts an independent review of the reco rd. Attorney Grievan ce Comm n v. Mininsohn, 380 Md. 536 , 564, 846 A.2d 3 53, 369-70 (200 4); Attorney Grievan ce Comm n v. Awuah, 374 Md. 505, 520, 8 23 A.2d 651, 660 (2003); Attorney Grievance Comm n v. Jaseb, 364 Md. 464, 475, 773 A.2d 516, 522 (2001). In our review of the record , the hearing judge s findings of fact generally will be accepted unless they are clearly erroneous. Maryland Rule 16-759 (b)(2);9 Attorney Grievance Comm n v. Mba-Jonas, 397 Md. 690, 700, 919 A.2d 6 69, 675 (2007 ); Attorney G rievance C omm n v. Goff, 399 Md. 1, 28, 922 A.2d 554, 570 (200 7); Attorney Grievance Comm n v. Gore, 380 M d. 455, 468, 845 A.2d 1204, 1211 (2004); Attorney Grievance Comm n v. Potter, 380 Md. 128, 151, 844 A.2d 367, 380-381 (2004). As to the hearing judge s conclusions of law, such as whether provisions of 9 Maryland Rule 16-759 (b)(2) provides: (2) Findings of fact. (A) If no exceptions are filed. If no exceptions are filed, the Court may treat the findin gs of fact as established for the purpose of dete rmin ing a ppro priate sanctio ns, if any. (B) If exceptions are filed. If exception s are filed, the C ourt of A ppeals shall determine whether the findings of fact have been pro ven by the req uisite standard of proof set out in Rule 16-757 (b). The Court may confine its review to the findings of fact challenged by the exceptions. The Court shall give due regard to the opportunity of the hearing judge to assess the credibility of witnesses. 23 the MRPC were violated, our consideration is ess entia lly de novo. Maryland Rule 16-759 (b)(1); 10 Attorney Grievance C omm n v. McLa ughlin, 372 Md. 467 , 493, 813 A.2d 1145, 1160 (2002); Mininsohn, 380 M d. at 564, 846 A.2 d at 370; Awuah, 374 Md. at 520, 823 A.2d at 660. DISCUSSION The hearing judge found violations of MRP C 1.15 (a) and (b), 8.1 (a), 8.4 (c) an d (d), Rules 16-607 and 16-609, and Section 10-306 of the Business Occupations and Professions Article. We have reviewed the record and conclude that except for his conclusion that the record does not support adequately a finding that funds Respondent received from Ex cell Management were for legal fees or expenses, Judge Hughes findings of fact are supported by clear and convincing evidence. We will discuss our sustaining of this exception below. A. Petitioner s Exceptions to Findings of Fact and Conclusions of Law Petitioner took exception to Judge Hughes conclusion that Responden t did not viola te MRPC 1.15 (c) because [t]his record does not support a finding that any monies received by the Respo ndent from his escrow account w ere for lega l fees or exp enses, w hich wo uld include monies paid to Respondent by Karen Lynn Jenkins and Excell Management. Bar Counsel asserts that Respondent s transactions involv ing Kare n Lynn Jen kins and E xcell Management violated MRPC 1.15 (c) because these clients paid Respondent retainer fees 10 Maryland Rule 16-759 (b)(1) states: (b) Revie w by Cour ts of Ap peals. (1) Conclusions of law. The Court of Appeals shall review de novo the circuit court judge s conclusions of law. 24 which he subsequently disbursed to finance unrelated m atters. Respo ndent argu es in support of the hearing court s finding that the evidence does not establish a MRPC 1.15 (c) violation under t he clea r and co nvincin g evide nce stan dard. Petitioner s exception requires us to review both a finding of fact and a conclusion of law. As we have indicated, findings of fact made by a hearing judge are ordinarily entitled to deference unless clearly erroneous. In reference to the transactions inv olving Ex cell Manag ement, not only did Respondent testify that he was retained to represent Excell, but in his ledgers, Respondent listed Excell s initial payment as Retained and the disbursement of the account funds on March 28, 2005 as Refund of retainer. On the basis of Responden t s own testimony and his ledger entries, we are satisfied that the payment accepted from Excell Management wa s for legal fees paid to retain the R espondent s services. We therefore sustain Bar Counsel s factual exception as to the funds Respondent received f rom Exc ell. The hearing court foun d that Resp ondent did withdraw funds from Excell s retainer without having incurred any fees or expenses. In his findings of fact, the hearing judge found that Respondent was supposed to be holding $2,500.00 belonging to Excell Management from May 20 , 2004 u ntil Ap ril 7, 2005. Respondent fa iled to mainta in that balanc e in his escrow account . . . . Because there is unambiguous evidence that Excell s payments to Respondent represen ted le gal f ees, R espo ndent failed to me et his burd en by a preponderance of evidence, and because the hearing court found that these funds had been improperly withdrawn, we sustain Bar Counsel s exception and conclude that Respo ndent did v iolate 25 MR PC 1.1 5 (c) w ith regar d to the tr ansactio ns relate d to Ex cell M anage ment. As to Karen Lynn Jenkins, Respondent did testify that he was retained to represent her, but the origin al ledger no tations for tran sactions inv olving this clie nt do not ap pear in the record. In the absence of this ledger evidence, we defer to the hearing court s finding and find by clear and convincing evidence that Jenkins payment was not for legal fees. We therefore overrule Bar Counsel s exception as to the monies Respondent received from Jenkin s. Petitioner also took exception to Judge Hughes conclusion that Respondent did not violate MRP C 8.4 (b) b ecause w hile the Resp ondent did violate th e Busin ess Art icle, . . . that is not a criminal statute, a nd ther efore a violatio n is not n ecessa rily a crimin al act. Petitioner argues that Respondent was found to violate Sectio n 10-306 of the Business Occupations and Professions Article and that pursuant to Section 10-606 (b) of that Article,11 the willful violatio n of Sectio n 10-306 is a misdem eanor sub ject to a fine not exceeding $5,000.00 or imprisonment not exceeding 5 years or both. Respondent does not d irectly address Section 10-606 (b) but rather argues that the Petition for Disciplinary or Remedial Action did not specify the criminal act that would cause him to be found in violation of 8.4 11 Section 10-606 (b) of the Business Occupations and Professions Article, Maryland Code (2000, 2004 Repl. Vol.), provides: (b) A person who w illfully violates any pro vision of S ubtitle 3, Part I of this title, except for the requirement that a lawyer deposit trust moneys in an attorney trust account for c haritable pu rposes un der § 10-3 03 of this title, is guilty of a misdemeanor and on conviction is subject to a fine not exceeding $5,000.00 or imprisonment not exceeding 5 years or both. 26 (b), a fact of which the hearing court took note. Respondent also stresses that the hearing court found that the misuse of trust money in this case did not constitute theft or embezz lement. Furthermore, Respondent argues that h is replenishment of the clients funds remov es his ac tivities fro m the re alm of crimina l acts. Petitioner correctly asserts that a willful violation of Section 10-306 is a misdemeanor under Section 10-606 (b), which describes the penalties for willful violations of Subtitle 3, Part I of Title 10 of the Business Occupations and Professions Article. See Attorney Grievance Com m n v. Braskey, 378 Md. 425, 452 -53, 836 A.2d 6 05, 621-22 (200 3). In Braskey, Judge Raker, w riting for this Court, iterated that [i]n order for a violation of § 103-06 . . . to constitute criminal conduct, the conduct must have been willful. Id. at 453, 836 A.2d at 622. Not every violation of Section 10-306 is necessarily willful; willfulness must be found before the misuse of trust money can constitute a criminal act und er 8.4 (b). Id.; Attorney Grievance Comm n v. Gallagher, 371 Md. 673, 711-12, 810 A.2d 996, 1018-19 (2002). In the present case, the hearing judge never specifically foun d that Responde nt s violations of Sec tion 10 -306 w ere willf ul. In concluding that Respondent violated MRPC 8.4 (c), however, the hearing court did find by clear and convincing evidence that Respondent engage d in dishonesty and deceit/misrepresentation by implicitly or explicitly misrepresenting to his clients that their escrow funds would be safeguarded, and that escrow funds disbursed were those being held by the Respondent on their behalf, when in fact they were not. Judg e Hugh es then listed a number of transactio ns which he found violated MRPC 8.4 (c), identical to the list of instances which the hearing court found violated 27 Section 10-306. The question before us, then, is whether a finding of dishonesty and deceit/misrepresentation is equivalent to a finding of willfulness under Section 10-606 (b) and MR PC 8.4 (b). In Deibler v. State, 365 Md. 185, 776 A.2d 657 (2001), Judge Wilner, writing for this Court, discussed the numerous meanings which various federal and state courts have attached to the term w illful. He no ted that the definition accepted in the majority of applications was that the act be committed voluntarily and intentionally as op posed to o ne that is committed through in advertenc e, accident, or ordinary negligence. Id. at 193, 776 A.2d at 661, quoting S. Brogan, An Analysis of the Term Willful in Federal Criminal Statutes, 51 Notre Dame Lawyer 786 (1976). In Attorney Grievan ce Comm n v. Tayb ack, 378 Md. 578, 837 A.2d 15 8 (2003), w e reviewe d the mea ning of w illful more s pecifically in the attorney grievance context, with regard to the willful f ailure to file tax re turns, a criminal act under Maryland and federal law, which formed the basis for the hearing court s finding that the respondent in that ca se viola ted M RPC 8.4 (b). In Tayback, Judge C athell, writing f or this Court, after reviewing Judge Wilner s discussion of willful in Deibler, iterated that [i]n attorney grievance matters based on the willful failure to file tax returns, this Court has consistently defined willfulness as the voluntary, intentional violation of a known legal duty not requiring a deceitful or fraudulent motive. Id. at 589, 837 A.2d at 165, quoting Attorney Grievance Comm n v. Thompson, 376 Md. 500, 514 n. 6 , 830 A .2d 474 , 482 n. 6 (2003); Attorney Grievan ce Comm n v. Boyd , 333 Md. 298, 309, 635 A.2d 382, 387 (1994); Attorn ey Grie vance Com m n v. W alman , 280 Md. 45 3, 460, 374 A.2d 354, 359 (1977 ). 28 Black s Law Dictionary defines deceit as 1. The act of intentionally giving a false impression . . . . 2. A false statem ent of fac t made by a p erson kno wingly or reck lessly. . . with the intent that someone else will act upon it. Black s Law Dictionary 435 (8th ed. 2004). Similarly, the M aryland Civil P attern Jury Instruc tion Civil 11:1 (2007), Fraud or Deceit, in pertinent part, states: To recov er damag es for dece it, it must be sho wn that: (1) the defendant made a false representation of a mate rial fact; (2) the defen dant knew of its falsity or made it with such reckless indifference to the truth that it would be reasonable to charge the defe ndant w ith know ledg e of i ts falsity; (3) the defenda nt intended that the plaintiff would act in reliance on suc h statem ents . . . . (emphas is added ). See also Martens Chevrolet, Inc. v. Seney, 292 M d. 328, 3 33, 439 A.2d 534, 537 (1982) (elements of deceit include purposeful making of a false statement and knowledge of falsity or misrepresentation made with such a reckless ind ifference to truth as to be equivalent to actual knowledg e ). We have also h eld that [i]n Maryland, a finding of deceit and misrepresentation in a disciplinary action must be found to be intentional. Attorney Grieva nce C omm n v. M ooney , 359 Md. 56, 78, 753 A.2d 17, 29 (2000 ); Attorney Grievan ce Com m n v. C lements, 319 M d. 289, 2 98, 572 A.2d 1 74, 179 (1990 ). As a result, in finding that many of Respondent s escrow transactions violated MRPC 8.4 (c), the hearing judge thereby determine d that these movem ents of client funds w ere intentional. In the facts specific to this case, the hearing judge found deceit/misrepresentation with refere nce to Responden t s misreprese ntation to his c lients 29 that their escrow funds would be safeguarded and disbursed only on their behalf, when they were not, and listed as violating 8.4 (c) the same transactions that he found in violation of Section 10-306. We therefore find that Judge Hughes finding of deceit/misrepresentation is equivalent to a finding of willfulness to support a violation of Section 10-606 (b) and thereby a violation of MRPC 8.4 (b), and we, therefore, sustain Bar Counsel s exception. B. Conclusions of Law The hearing judge determ ined that Respond ent acted in violation of M RPC 1.15 (a), Maryland Rule 16-609, and Section 10-306 of the Business Occupations and Professions Article of the Maryland Code when he commingled personal and clients funds and improper ly withdrew client funds from his escrow account for his own personal use, for the use o f ano ther clien t, or f or the use of a t hird party. MRPC 1 .15 (a) states: (a) A lawyer sh all hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s ow n property. Fu nds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other property shall be identified as such and appropriately safeguard ed. Complete reco rds of such account funds and of other property shall be kept by the lawyer and shall be preserved for a period of five years after termination of the representation. Maryland Rule 16-609 provides: An attorney or law firm may not borrow or pledge any funds required by these Rules 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. An instrument drawn on an attorney trust 30 account may not be d rawn payable to cash o r to bearer. Section 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. The hearing court determined that Respondent violated MRPC 1.15 (a), Maryland Rule 16-609, and Sec tion 10-306 in thirty-one transactions beg inning on Nov ember 13, 2003, and continuing through November 15, 2005. The hearing judge abbreviated these movem ents of funds as C antor I, II and III; Mount Oak I and II; Brien; Riggleman; Jenkins; Tidewater I, II and III; May, 2004; McKenna; August-October 2005; Excell; Black Hawk; Percival II; Eastport II; Liberty I and II; Olmo; Brown I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and M id Atlantic. Through these transactions, Respon dent wro te checks from his e scrow ac count and deposited th e funds in to his operating account in order to cover personal expenses. When it came time for Respondent to disburse funds from the escrow account to proper payees, he wou ld borrow funds from other clients, from personal loans improperly deposited into the escrow account, or from rents received for office space in the building housing his law office. Such activities clearly constitute improper commingling of personal funds and client funds in violat ion of M RPC 1.15 (a) . See Mba-Jonas, 397 Md. at 700, 919 A.2d at 675; Attorney Grievance Comm n v. Snyder, 368 Md. 24 2, 260-61, 793 A .2d 515, 525-526 (2002). Responden t s intentional misuse of trust mone y for purpose s other than those for w hich it was entrusted to h im also viola te Rule 16-60 9 and S ection 1 0-306 . See Mba-Jonas, 397 Md. 31 at 700, 919 A.2d at 675. The hearing jud ge also con cluded tha t Respon dent violated MRPC 1.15 (b) and Marylan d Rule 16-60 7 by dep ositing p ersona l loans a nd rent s into his escrow accou nt. Rule 1.15 (b) states: (b) A lawyer may deposit the lawyer s own funds in a client trust account for the sole purpose of paying bank service charges on that account, but only in an amount necessary for the purpose. Maryland R ule 16-60 7 provide s in relevant p art: (a) General prohibition. An attorn ey or law firm may depos it in an attorney trust account only those fund s required to be deposited in that account b y Rule 16-60 4 or perm itted to be so deposited by section b. of this Rule. (b) Exceptions. 1. An attorney or law firm shall either (A) deposit into an attorney trust account funds to pay any fees, service charges, or minimum balance required by the financial institution to open or maintain the account, including those fees that cannot be charged against interest due to the Maryland Legal Services Corporation Fund pursuant to Rule 16-610 b 1 (D), or (B) enter into an agreement with the financial institution to have any fees or charges deducted from an operating account maintained by the atto rney or law firm. T he attorney or law firm may deposit into an attorney trust account any funds expected to be advanced on behalf of a client and expected to be reimburse d to the attorn ey by the client. In his Stipulation, Respondent characterized the $30,000.00 provided by Allan Percival and deposited into Respondent s escrow account on July 6, 2004, and the July 7, 2004 depos it of $25 ,000.00 from E astport A nalytics, as client de posits. Respon dent, however, later testified that these were actually personal loans from Percival and the owner of Eastport Analytics. There is no finding and nothing in the record that reflects that 32 Responden t s depositing of these personal loans or the rents obtained from the tenants of his office bu ilding, also de posited into th e escrow account, w as done so lely for the purpose of paying bank serv ice charge s on the clien t trust accoun t within the meaning of MRPC 1.15 (b). Accordingly, the transactions which the hearing court abbreviated as Percival I and Eastport I, as well as the client rent transactions, violated MRP C 1.15 (b). See Attorney Grievance Com m n v. O bi, 393 Md. 643, 656 n. 8, 904 A.2d 422, 430 n. 8 (2006). Likewise, as these personal loans and rents were not required to be deposited into Respondent s attorney trust account under Rule 16-604,12 nor were they deposited to cover bank fees as is allowable under R ule 16- 607 (b ), these tra nsactio ns clear ly violated Rule 1 6-607 . See Snyder, 368 Md. at 260-61, 793 A.2d at 525-26 (violation of Rule BU 7, the precu rsor to Rule 16-607). The hearing cou rt also found that Respondent violated MRPC 8.1 (a) by submitting altered ledgers to Assistant Bar Counsel which purported to have been made contemp oraneou sly with the transactions in the es crow acc ount but w hich wer e actually 12 Maryland Rule 16-604 states: Except as otherwise permitted by rule or other law, all funds, including cash, received and accepted by an attorney or law firm in this State from a client or third p erson to be delivered in whole or in pa rt to a clien t or third p erson, u nless received as payment of fees owed the attorney by the client or in reimbursement for expenses properly advanced on behalf of the client, shall be deposited in an attorney trust account in an approved financial institution. This Rule does not apply to an instrument rece ived by an attorney or law firm that is made payable solely to a client or third person and is transmitted directly to th e client o r third pe rson. 33 made after the fact an d did no t accura tely reflec t Respo ndent s hand ling of c lient fun ds. MRPC 8 .1 (a) states: An applicant for admission or reinstatem ent to the bar, or a lawyer in con nection w ith a disciplinary m atter, shall not: (a) kno wingly m ake a f alse state ment o f mater ial fact . . . . Respondent s knowing misrepresentation of the legitimacy of his ledger entries to Bar Counsel certainly violated MRPC 8.1 (a) as the timing of the entries was a fa ct material to Counsel s investig ation of Respo ndent s misco nduct. See Attorney Grievance Comm n v. Kapo or, 391 Md. 50 5, 532, 894 A.2d 502, 518 (2006 ). The hearing judge found that MRPC 8.4 (c) was violated by Resp ondent s misappropriation of client fun ds and his misrepresentation to clients that their escrow funds would be safeguarded when they were not. The hearing court found violation s in th e thir tyone transactions which it abbreviated as Can tor I, II and III; Mount Oak I and II; Brien; Riggleman; Jenkins; Tidewater I, II and III; May, 2004; McKenna; August-October 2005; Excell; Black H awk; Pe rcival II; Eastp ort II; Liberty I and II; Olmo; Brown I, II and III; Epstein ; Hayden ; Precisio n; Ault I, II and I II; and M id Atlan tic. MRPC 8.4 (c) states that is professional misconduct for a lawyer to: (c) engage in conduct involving dishonesty, fraud, deceit or misrep resenta tion . . . . This Court has consistently found that an attorney s misappropriation of client funds violates MRPC 8.4 (c). See Attorn ey Grieva nce Com m n v. C herry-M ahoi, 388 Md. 124, 159, 879 A.2d 58, 80 (20 05); Snyder, 368 M d. at 260, 79 3 A.2d a t 525-26; Attorney 34 Grievance Comm n v. Van derlind e, 364 M d. 376, 3 85-86 , 773 A .2d 463 , 468-6 9 (200 1). In the present case, we agree with the hearing judge that Respondent s conduct was dishonest and deceitful in violation of Rule 8.4 (c) in that he misappropriated client funds and misrepresented to clients that the funds were properly safeguarded. This Court has also foun d misappropriation of client funds to be prejudicial to the administration of justic e in vio lation of MR PC 8.4 (d). See Che rry-Mah oi, 388 Md. at 159, 879 A.2d at 80; Attorney Grievance Comm n v. Zuckerman, 386 Md. 341, 374, 872 A.2d 693, 713 (2005); Gallagher, 371 Md. at 713, 810 A.2d at 1020. The hearing judge found that MRPC 8.4 (d) wa s violated by R esponde nt s misuse o f client funds in the twenty-nine transactions which it abbreviated as C antor I, II and III; Mount Oak I and II; Brien; Riggleman; Jenkins; Tidewater I and II; August-October 2005; Excell; Black Hawk; Percival II; Eastport II; Liberty I and II; Tidewater III; Olmo; Brow n I, II and III; Epstein; Hayden; Precision; Ault I, II and III; and M id Atlantic. R esponde nt s miscon duct was harmful to the legal profession because it undermined the pu blic s confiden ce that attorne ys will properly maintain entrusted funds as expected and required under the Rules of Professional Condu ct. See Cherry-M ahoi, 388 Md. at 160, 879 A.2d at 8 0. Accor ding ly, we hold that Respondent violated MRPC 8.4 (d) by engaging in behavior that was prejudicial to the administration of justice. SANCTION The appropriate sanction for a violation of the Rules of Professional Conduct generally depends on the facts and circumstances of each case, including consideration of 35 any mitigating factors, Zuckerman, 386 Md. at 375, 872 A.2d at 713, in furtherance of the purposes of attorney discipline: to protect the public, to deter other lawyers from engaging in violations of the M aryland Rule s of Profe ssional Co nduct, and to maintain th e integrity of the legal profession. Id., quoting Awuah, 374 Md. at 526, 823 A.2d at 663. In Attorney Grievance Comm n v. Sheridan, 357 Md. 1, 741 A.2d 1143 (1999), we said: Because an attorney s character must remain beyond reproach this Court has the duty, since attorneys are its officers, to insist upon the maintenance of the integrity of the bar and to prevent the transgressions of an individual lawyer from brin ging its image into disrepute. Disciplinary proceedings have been established for this purpose, not for punishment, but rather as a cathars is for the profes sion an d a prop hylactic fo r the pu blic. Id. at 27, 741 A.2d at 1157, quoting Attorney Grievance Comm n v. Deutsch, 294 Md. 353, 368-69, 450 A.2d 1265, 1273 (1982) (emphasis in original). When imposing sanctions, we have enunciated that, [t]he pu blic is protected when sanc tions are imposed that are comme nsurate with the nature and gravity of the violations and the intent with which they were comm itted. Gore, 380 M d. at 472, 845 A.2d at 1213. Therefore, in this case we consider the nature of the ethical duty violated in light of any aggravating or mitigating circumstances. Attorney Grievance Comm n v. Sweitzer, 395 Md. 586, 598-99, 911 A.2d 440, 447-48 (20 06). Petitioner has recommended a sanction of disbarm ent, while Respondent argues that he should be given an indefinite suspension. Respondent urges us to consider the nine mitigating factors found by the hearing judge and also argues that his case is similar to other attorney grievance matters involving the misappro priation of c lient funds in which ind efinite 36 suspensions were meted out. It is the Respondent s repeated violations of MRPC 8.4, however, that compels this Court to agree with Bar Counsel that disbarment is the approp riate san ction. Respondent violated MRPC 8.4 (b), (c), and (d) when he misrepresented to his clients that their escrow funds would be safe guarde d while , in fact, he was improperly using client money to cover his own business expenses, and then later covering these withdraw als with funds from other clients. We have repeatedly stated that the misappropriation of entrusted funds is an act infe cted with d eceit and dis honesty, and, in the absenc e of com pelling extenuating circumstances justifying a lesser sanction, will result in disbarment. CherryMahoi, 388 Md. at 161, 879 A.2d at 81. Accord Attorney Grievance Comm n v. Prichard, 386 Md. 238, 248 , 872 A.2d 81, 86 (2005); Attorney Grievan ce Comm n v. James, 385 Md. 637, 666, 870 A.2d 22 9, 246 (20 05); Attorney Grievance Comm n v. Sperling, 380 Md. 180, 191, 844 A.2d 39 7, 404 (20 04); Attorney Grievance Comm n v. Somerv ille, 379 Md. 586, 593, 842 A.2d 811, 815 (2004 ); Attorney Grievance Comm n v. Smith, 376 Md. 202, 238, 829 A.2d 567, 588-89 (2 003); Attorney Grievance Comm n v. Spery, 371 Md. 560, 568, 810 A.2d 487, 491 -92 (2002 ); Vanderlinde, 364 Md. at 397, 406, 773 A.2d at 475, 480. Such a sanc tion is wa rranted b ecau se attorneys must remember that the entrustment to them of the money and property of others involves a responsibility of the highest order. They must carefully administer and account for those funds. Approp riating any part of those funds to their own use and benefit without clear authority to do so cannot be tolerated. Attorney Grievance Comm n v. Owrutsky, 322 M d. 334, 3 45, 587 A.2d 5 11, 516 (1991 ). 37 Respondent asks us to consider as mitigating factors that no client was explicitly misled or suffered any financial harm, that all client obligations were timely discharged, and that Respondent never intended to deprive any client of the timely access to escrow funds or to defraud a ny client. Rega rdless, Resp ondent s actions were dishonest, deceitful, and motivated by his own pecuniary interests. Honesty and integrity are required fro m all attorneys, because actions in denigration of those values reduce public confidence: [A] lawyer s act of dishonesty, fraud, or deceit might cause the public to lose confidence in other lawyers and the judicial system as a whole. *** [C]andor by a lawyer, in any capacity, is one of the most important character traits of a me mber of the Ba r. *** The very integrity of the judicial system demands that the attor neys who practice in this state, who rep resent clients in the courts, and who interact in judicial matters with the courts do so with ab solute h onesty an d perso nal integ rity. Attorney Grievance Comm n v. White, 354 Md. 346, 364, 367, 731 A.2d 447, 457, 459 (1999). Sim ilarly, as we stated in Vanderlinde: Unlike matters relating to competency, diligence and the like, intentional dishonest conduct is closely entwined with the most important matters of basic character to such a degree as to make intentional dishonest conduct by a lawyer almost beyond excuse. 364 Md. at 418, 772 A.2d at 488. See als o Attor ney G rievan ce Co mm n v. Penn ington , 387 Md. 565, 596, 876 A.2d 642, 660 (2005) (noting the unparallele d importan ce of hon esty 38 in the practice of law ), quoting Attorney Grievance Comm n v. Angst, 369 Md. 404, 420, 800 A.2d 74 7, 757 (20 02); Attorney Grievance Comm n v. Blum, 373 M d. 275, 304, 818 A.2d 219, 237 (2003) ( Hon esty is of paramount impo rtance in the practice of law . ). Respon dent, nevertheless, remonstrates that not all cases involving a finding of the misuse of client funds have resulted in disbarment and urges us to find that the circumstances of the present case warrant a sanction of indefinite suspension rather than disbarme nt. He cites to a numb er of cases where a s anction less than disbarment was ordered in a misappropriation case to sup port his own request for leniency: Goff, 399 Md. at 1, 992 A.2d at 554; Attorney Grievance Comm n v. Rees, 396 M d. 248, 9 13 A.2 d 68 (2006); Attorney Grievance Comm n v. Calhoun, 391 Md. 532 , 894 A.2d 518 (2006); Attorney Grievance Comm n v. Whitehead, 390 Md. 663, 890 A.2d 751 (2006); Attorney Grievance Comm n v. Maignan, 390 M d. 287, 888 A.2d 34 4 (2005); Zuckerman, 386 Md. at 341, 872 A.2d at 693; Attorney Grievance Comm n v. Rose, 383 Md. 385, 859 A.2d 659 (200 4); Attorney Grievance Comm n v. DiCicco, 369 M d. 662, 802 A.2d 10 14 (2002 ); Attorney Grievance Comm n v. Hayes, 367 M d. 504, 7 89 A.2 d 119 ( 2002) . In every case cited , except Calhoun, however, the hearing judge did not find a violation of M RPC 8.4 (c). Goff, 399 Md. at 16, 922 A.2d at 56 3 (hearing c ourt decline d to find violation of MRP C 8.4 (c)); Rees, 396 M d. at 251 n. 7, 913 A.2d a t 69 n. 7 (hearin g court found allegation that Rees violated M RPC 8.4 (c) to be frivolous ); Whitehead, 390 Md. at 669, 890 A.2 d at 755 (rec iprocal discip line case in w hich District o f Colum bia Court of Appea ls did not spe cifically find vio lation of the e quivalent o f MR PC 8.4 (c )); Maignan, 39 390 Md. at 292, 888 A.2d at 347 (hearing court declined to find violation of MRPC 8.4 (c)); Zuckerman, 386 Md. at 360, 872 A.2d at 70 4-05 (attorn ey was not c harged w ith a violation of 8.4 (c)); Rose, 383 Md. at 391, 859 A.2d at 662 (same); DiCicco, 369 Md. at 666, 684, 802 A.2d at 1016, 1026 (hearing court declined to find violation of MRPC 8.4 (c); Bar Counsel excepted to the finding and this Court overruled the exception, holding that the evidence showed the respon dent to be n egligent, not willful or de ceitful ); Hayes, 367 Md. at 511, 789 A .2d 123 -24 (res ponde nt was not cha rged w ith a viol ation of MR PC 8.4 (c)). In the singular c ase in which a violation of 8.4 (c) was found and disbarment was not ordered, Calhoun, 391 Md. at 532, 894 A.2d at 518, the responden t was cha rged with violating multiple rules of professional conduct, including 8.4 (c), in connection with her representation of a client in a sexual harassment suit. The hearing court found that Calhoun had commin gled trust fun ds and pe rsonal fun ds by failing to deposit two $5,0 00.00 paym ents for fees and an $8,000.00 settlement check into a properly designated attorney trust account. The hearing judge found that Calhoun had misled her client concernin g legal fees and costs owed by failing to keep him inform ed of the a ccrual of th ose fees an d costs in a tim ely fashion, as was required by her represen tatio n agreem ent. S peci fica lly, the court found that she mislead by silence and lack of comm unication, id. at 548, 894 A.2d at 527, and that she vio lated 8.4 (c) by her failure to comm unicate proper ly. Id. at 552, 894 A.2d at 530. In determinin g Calhou n s sanction , this Court noted that while the hearing judge did find that responde nt violated M RPC 8 .4 (c), he did n ot find spec ifically that respondent engaged in dishonest or fraudulent conduct, Id. at 571, 894 A.2d at 541, and focused on the 40 respondent s treatment of the $8,000.00 in settlement funds. We noted that the hearing court did not find that Calhoun had intentionally misappropriated the settlement funds, but rather that the facts indicated that she may have believed, albeit erroneously, that the settlement funds were ow ed to her to c over fees a nd costs associated w ith repre sentatio n. Id. at 574, 894 A .2d at 54 3. The facts of the present case are different from those of Calhoun in two very important respects. First, in the present case the hearing court found by clear and convincing evidence that Respondent engaged in dishonesty and deceit/misrepresentation. Second, there are no factual findings in the present case to support the premise that client funds were unintention ally or accidently misappropriated. In Calhoun, the attorney had pro perly incurred fees and costs associated with the representation of her client; her violation of MRPC 8.4 (c) was a result of her lack of diligence in communicating these expenses to her client and following appropriate procedures in obtaining payment. The violations in the present case do not result from the Respondent improperly utilizing client funds which he believed he had earned for services rendered; rather, he knowing ly and intentionally misused client funds over a period of two years in order to cover personal expense s unrelated to his representation of those clients.13 13 Lastly, we would like to note that while Respondent asks us to consider as mitigating factors his reputatio n for hon esty [and] integrity and his remorse, his own testimony at the April 26, 2007 hearing before Judge Hughes calls these factors into doubt. When asked to describe the measures he had taken to ensure that future violations would not occur he replied: (contin ued...) 41 It should also be noted that we have declined to order disbarment in cases where the misappropriation of funds was due to negligence, ra ther than intentio nal misc onduc t. See Zuckerman, 386 Md. at 379, 872 A.2d at 716; Sheridan, 357 Md. at 36, 741 A.2d at 1162; Attorney Grievan ce Com m n v. G lenn, 341 M d. 448, 49 1, 671 A .2d 463 , 484 (1 996). See also Attorney Grievance Comm n v. Cafferty, 376 Md. 700, 728, 831 A.2d 1042, 1059 (2003) (stating that disbarment is not appropriate where the violation is the result of negligence, not intentional acts). In such circumstances, we have concluded that indefinite suspension was the appropriate sanction. For example, in Zuckerman, we imposed an indefinite suspension with the right to reapply after ninety days because the misappropriation of client funds was the result of ineffectual accounting procedures and theft by the attorney s employee, rather than the intentional actions of Zuckerman himself. 386 Md. at 379, 87 2 A.2d at 716. In the case sub judice, however, indefinite suspension is not the appropriate sanction as 13 (...continued) I ve done at least three different -- made three different changes in my practice. The first was that I have stopped taking Chapter 11 cases or I have been more selective so that I can better manage my funds. I had a paralegal who assisted me and she was earning $35,000.00 per year plus additional expenses and I let her go, I laid her off. And in addition I have started -- because of an additional line of credit that I was able to procure from Bank of America I have been able to manage my funds a little bit more easily and in fact to avoid using the escrow except wherever possible . . . . (Emphasis add ed). 42 Respo ndent s action s were intentio nal, not n egligen t. Given the Respondent s willful and intentional misappropriation of client funds over a period of two years, we are persuaded that the public only would be protected by the imposition of a sanction o f disbarment. We shall so order. IT IS SO ORDER ED; R ESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING C O S T S O F A L L T R A NS C RI P T S, PURSUANT TO MARYLAND RULE 16-761, F O R W H ICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY GRIEVANCE COMMISSION. 43

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.