Attorney Grievance v. Brown
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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 22 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. RONALD ALLEN BROWN Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: April 9, 2004 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel, acting purs uant to Maryland Rule 16-751,1 filed a Petition For Disciplinary Action against Ronald A. Brown, the respondent, in which it was charged that the respondent violated Rules 1.1, Competence,2 1.15, Safekeeping prope rty, 3 8.1, Bar Adm ission and Disciplinary Matters,4 and 8.4, M isconduc t,5 of the Maryland Rules of Professional Conduct, as adopted 1 Maryland Rule 16-751, as relevant, provides: (a) Commencement of disciplinary or remedial action. (1) Upon approva l of the Commission. Upon approval or direction of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Rule 1.1 provides: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and prepar ation rea sonab ly necessa ry for the r eprese ntation. 3 Rule 1.15 provides, as relevant: (a) A lawyer shall hold property of clients or third persons that is in a lawyer s possession in connection with a representation separate from the lawyer s own property. Funds shall be kept in a separate account maintained pursuant to Title 16, Chapter 600 of the Maryland Rules. Other proper ty shall be id entified as such and ap propria tely safeg uarded . 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) Upon receiv ing funds or other pro perty in which a client or third person has an interest, a law yer 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 promptly deliver to the client or third person any funds o r other prop erty that the client or th ird person is entitled to rece ive ans, upo n request b y the client or third p erson, shall promp tly render a full acc ountin g regar ding su ch prop erty. 4 Rule 8.1 p rovides, as re levant: An ap plicant for ad mission or re instatemen t to the bar or a lawyer in connection with a bar admission application or in connection with a by Marylan d Rule 16-81 2 . Bar Counsel also alleged that the respondent violated Maryland Rules 16-606, Name and Designation of Account,6 and 16-609, Prohibited Transactions,7 and disciplinary ma tter, shall not: * * * * (b) fail to disc lose a fact n ecessary to corr ect a misapprehension known by the person to have arisen in the matter, or knowingly fail to respond to a lawful demand for info rmation from an ad miss ions or disciplinar y auth ority, except that this Rule does not require disclosure of information otherwise protected by Rule 1.6. 5 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: (a) violate o r attempt to v iolate the rules o f professio nal condu ct, knowingly assist or induce another to do so, or to do so through the acts of another; (b) com mit a crim inal a ct tha t refl ects adverse ly on the la wyer s ho nesty, trustworthiness or fitness as a lawyer in other respects; (c) engage in conduct involving dishonesty, fraud, deceit or misrepresentation; (d) en gage in condu ct that is p rejudici al to the a dminis tration o f justice . * * * * 6 That Rule provides: An attorney or law firm shall maintain each attorney trust account with a title that includes the name of the attorn ey or law firm and that clea rly designates the account as Attorney Trust Account, Attorney Escrow Account, or Clients Funds Account on all checks and deposit slips. The title shall distinguish the account from any other fiduciary account that the attorney or law firm may maintain and from any personal or business accou nt of the attorney o r law fir m. 7 Maryland Rule16-609 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 o n an attorne y trust account m ay not be draw n payable to ca sh or to 2 Maryland Code (1989, 2000 Replacement Volume) § §10-3068 and 10-3079 of the Business Occu pations and Pr ofessio ns Artic le. We referred the case, pursuant to Rules 16-752 (a),10 to the Honorable Christopher C. Henderson, of the Circuit Court for Charles County, for hearing pursuant to Rule 16-757 (c).11 Although served with this Court s Orde r and the Petition for Disciplinary or Remedial bearer. 8 Maryland Code (1989, 2000 Replacement Volume) § 10-306 of the Business and Occupation Article 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. 9 Section 10-307 provides: A lawyer who willfully violates any provision of this Part I of this subtitle, except for the requirement that a lawyer deposit trust moneys in an attorney trust accoun t for charitab le purpose s under § 1 0-303 of this subtitle, is subjec t to discip linary pro ceedin gs as the Marylan d Rule s provid e. 10 Rule 16-752 (a) provides: (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 maintaining 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. 11 Maryland Rule 16-757 (c) provides: (c) Findin gs and co nclusions. T he judge s hall prepare and file or d ictate into the record a statement of the judge's findings of fact, including findings as to any evidence regarding remedial action, and con clusions of law. If dictated into the record, the statement shall be promptly transcribed. Unless the time is extended by the Court of Appeals, the written or transcribed statement shall be filed with the clerk responsible for the record no later than 45 days after the conclusion of the hearing. The clerk shall mail a copy of the statement to each party. 3 Action, the respon dent did no t file a respon se. entered and a hea ring date set. Conse quently, an O rder of D efault was T he Orde r of Def ault has not b een vacated and the respondent has not requested that relief. Following the hearing, at which the respondent neither appeared nor participated, the hearing court found facts by a clear and convincing standard and drew conclusions of law as follows: FINDINGS OF FACT In 2002, the Respondent represented Sara August in a personal injury matter that had occurred on January 13, 2002. Respon dent settled August s matter in Ju ly 200 2 with the Maryland Automobile Insurance Fund in the amount of $ 4,500. Thereafter, on July 25, 2002, Respondent deposited August s $ 4,500 settlement check into his attorney trust account at Sun Trust Bank. On July 20, 2002,12 Respondent wrote Check No. 1001, on that account in the amount of $ 4,500 made payable to his law office leaving a balance of $ 105.44. On August 20, 2002 Respondent wrote August Check No. 1028 in the amount of $ 2,280 when he did not have sufficient funds in the trust account to cover that check. Sun Trust Bank honored Respondent s Check No. 1028 made pa yable to Augus t in the amo unt of $2 ,820 [sic]. T hereafter, S un Trust B ank filed su it in the District Court for Charles County Maryland against the Respondent. On May 21, 20 03, judgm ent was e ntered aga inst the respo ndent in the amount of $ 2,866.56, interest of 74.92, costs of $ 20 and attorney s fees in the amount of $ 716.64. As of December 1, 2003, Respondent had not paid the judgment entered against [him] in favor of Sun Trust Bank. Respondent opened up his attorney trust account at Sun Trust Bank on July 11, 200 2, depo siting $ 1 05.44. The only activity that was conducted on that account was the August settlement of $ 4,500. Further when Respondent opened the trust acco unt at Sun Trust Bank, he did not have the account nor 12 At argument, in response to a question from the bench, the petitioner indicated that this date sh ould be Ju ly 30, 2002, as th e withdraw al of the de posited am ount could not have occurred before it was deposited. 4 the checks clearly designated as Attorney Trust Account, Attorney Escrow Acco unt, or Client Funds Account as required pursuant to Maryland R ule 16-606. Petitioner mailed letters to the Respondent dated September 10, 2002, November 1, 2002, and November 13, 2002 requesting a written response to the overdraft on his attorney trust account held at Sun Trust Bank. The Respondent never responded to those letters. On January 10, 2003, the Respondent agreed to an interview with Bar Cou nsel s investigator, however, he failed to appear for that interview. CONCLUSIONS OF LAW By his conduct, the Respondent violated Maryland Rules of Professional Conduct 1.1, 1.[15] (a) (b), 8.1 (b), 8.4 (a) (b) (c) (d), Maryland Rules 16-606 and 16-6098 and Business Occup ations and P rofessions Article § 10-306 and § 10-307. The Respon dent s failure to properly ma intain August s settlement m onies in his e scrow ac count dem onstrates his incompetence pursuant to Rule 1.1. The Respondent s failure to hold the money in his escrow account and his failure to p romptly delive r the mone y to his client August, violates Rule 1.15 (a) and (b). Respondent s failure to respond to the Petitioner s letter[s] and attend the scheduled interview violates Rule 8.1 (b). The Respon dent s failure to properly des ignate his attorney trust account at Sun Trust Bank as Attorney Trust Account, Attorney Escrow Account, or Client Funds Account violates Rule 16-606. The Respondent s misuse of August s settlement monies violates Maryland Rules of Professional Conduct 8.4 (a) (b) (c) (d), Maryland Rule 16609 and Business Occupations and Professions Article § 10-306 and § 10-307. The Respondent s misappropriation of August s $ 2,820 is an act of theft and dishonesty which is a violation of Rules 8.4 (b) and (c). The petitioner took no exception s to the findin gs and co nclusions o f the hearin g court. It did make a recommendation for sanction, however. Relying on Attorney Grievance Comm n v. Spery, 371 M d. 560, 568, 810 A. 2d 487, 491-92 (2002); Attorney Grievance Comm n v. Sullivan, 369 Md. 650 , 655-56, 801 A . 2d 1077, 1080 (2 002); Attorney 5 Grievance Comm n v. Vanderlinde, 364 Md. 376, 410, 773 A. 2d 463, 483 (2001) and noting what we have often said, that [m]isappropriation, by an attorney, of funds entrusted to his/her care is an act of deceit and dishonesty, and, in the absence of compelling and extenuating circumstances justifying a lesser sanction, will result in disbarment, it urges the respondent s disbarment. The petitioner concludes, Respondent s misrepresentation coupled with his failure to p articipate in the disciplinary process would justify a sanction of disbarm ent. Although he did not a ppear or p articipate in the disciplinary proceedings, the respondent filed Re spondent s Exceptions and Recommendations. Without providing any particulars or argument, he merely denie[d] that he misappropriated funds entrusted to him or failed to pro perly establish his attorney trust account or committed the misconduct as found by the Circuit Court. His recommendation is that the proceeding be dismissed. The respondent s exceptions are overruled. It is well settled that the hearing court s findings o f fact are pr ima facie correct and will not be disturbed unless they are shown to be clearly erroneous. Attorney Griev. Comm'n v. Garland, 345 Md. 383, 392, 692 A.2d 465, 469 (1997) (citing Atto rney G riev. Com m'n v. Goldsborough, 330 Md. 342, 347, 624 A.2d 503, 505 (199 3)). Attorney Grievance Comm n v. McCoy, 369 Md. 226, 234235, 798 A. 2d 1132, 1137 (2002). Inde ed, the findings of fact m ade by the hearing court are review ed to de termine if they are based o n clear a nd con vincing eviden ce. Attorney Grievance Comm n v. Pow ell, 328 Md. 27 6, 287-28 8, 614 A .2d 102, 10 8 (1992); Attorney 6 Grievance Comm n v. Clements, 319 M d. 289, 2 98, 572 A.2d 1 74, 179 (1990 ). The findings of fact made in this case are no t clearly erroneo us. In point of fact, there is ample evidence to support them an d, just as important, to justify the conclusions drawn from them. Significantly, the respondent has presented nothing to suggest, not to mention demonstr ate, otherwise. Exceptions will be overruled, we have said , when th e findings ar e not clearly err on eou s. McCoy, 369 Md. at 234-235, 798 A. 2d at 1137. Turning to the sanction, the petitioner has accur ately sta ted th e ge ner al r ule , that disbarme nt will inevitably follow any unmitigated misappropriation of client, or any third party s funds[.] Attorn ey Grievance Comm n v. Hayes, 367 Md. 504, 512-13, 789 A.2d 119, 124 (2002), and the cases therein cited. Moreover, we have made clear, albeit in the context of a reciprocal discipline proceeding, that the burden is on the respondent to demonstrate - in Maryland, the burden of establishing factual matters in defense mu st be carried 7 by a preponderance of the evid enc e, Powell , 328 Md. at 288, 614 A.2d at 109; Attorn ey Griev. Comm'n v. Bakas, 322 Md. 603, 605, 589 A.2d 52, 53 (1991) - that less severe discipline than that [recommended by Bar Counsel], or no discipline, shou ld be impo sed. McCoy, 369 Md. at 236, 798 A. 2d at 1137. The respondent s submission, consisting of only a recommendation, without any further amplification or statement of basis, certainly has not shown by a preponderance of the evidence that a less severe sanction than that recommended should be imposed in these procee dings. Given the hearing court s findings, the only appropriate sa nction in this c ase is disbarme nt. 8
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