Attorney Grievance v. Christopher

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Attorney Grievance Commission of Maryland v. Nathan H. Christopher, Jr. No. AG 36, September Term, 2003 ATTORNEY DISCIPLINE Our goal in matters of attorney discipline is to protect the public and the public s confidence in the legal profession rather than to punish the attorney. ATTORNEY DISCIPLINE APPROPRIATE SANCTIONS Appropriate sanction for attorney misconduct including false accounting and misappropriation of client assets is usually disbarment unless there are compelling extenuating circumstances that justify a lesser sanction. ATTORNEY DISCIPLINE APPROPRIATE SANCTIONS Appropriate sanction for attorney misconduct including false accounting and misappropriation of estate assets was mitigated to indefinite suspension where respondent s mental condition, specifically severe depression and alcoholism, were the root cause of his false accounting and misappropriation of estate assets. ATTORNEY DISCIPLINE APPROPRIATE SANCTIONS Absent truly compelling extenuating circumstances, alcoholism does not constitute a sufficient mitigator to conduct that would otherwise warrant disbarment as the appropriate sanction. In the Circu it Court for W icomico C ounty Case No. 22-C-03-001308 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 36 September Term, 2003 ____________________________________ ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. NATHAN H. CHRISTOPHER, JR. ____________________________________ Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. ____________________________________ Opinion by Greene, J. Raker and Battaglia, JJ., dissent ____________________________________ Filed: November 16, 2004 The Attorney Grievance Commission, acting through B ar Coun sel, filed a petition for disciplinary action against Nathan H. Christopher, Jr. (Respondent) for violation of the Maryland Rule 16-812, Maryland Rules of Professional Conduct (MRPC). Bar Counsel also alleged that Respo ndent viola ted Marylan d Rules 1 6-604 (T rust accoun t - Required deposits), 1 16-607 (Com mingling of fund s),2 and Maryland Cod e (1989, 1995 R epl. Vol.), 1 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 person to be delivered in whole or in part to a client or third person, unless 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 acco unt in an ap proved f inancial institutio n. This rule d oes not ap ply to an instrum ent received by an attorney or la w firm tha t is made pa yable solely to a client or third person and is transmitted directly to the client or third person. 2 Rule 16-607 provides as follows: a. General prohibition. An attorney or law firm may deposit in an attorney trust account only those funds required to be deposited in that account by Rule 16-604 or perm itted to b e so dep osited b y section b . of this R ule. b. Exce ptions . 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 operation account m aintained by the attorney or law firm. Th e attorney or law firm may deposit into an attorney trust account any funds expected to be advanced on behalf of a client and e xpected to be reimbu rsed to the atto rney by the client. 2. An attorney or law firm may deposit into an attorney trust account funds belonging in part to a client and in part presently or potentially to the attorney or law firm. The portion belonging to the attorney or law firm shall be withdrawn promptly when the attorney or law firm becomes entitled to the funds, but any § 10-306 of the Business and Occupation Article.3 With respect to the MRPC, the petition alleged that Respondent violated Rule 1.1 (Com petence), 4 1.3 (Diligence), 5 1.5 (Fees), 6 Rule portion disp uted by the clien t shall remain in the accou nt until the disp ute is resolved. 3. Funds of a client or beneficial owner may be pooled and commingled in an attorney trust account with the funds held for other clients or beneficial owners. 3 Md. Code Ann ., Bus. Occ. & Prof. Art section 10-306 provides: A lawyer may not use trust money for any purpose other than the purpose for which the trust mo ney is entrusted to the lawyer. 4 Rule 1.1 provides as follows: A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation. 5 Rule 1.3 provides as follows: A lawyer shall act with reasonable diligence and promptness in representing a client. 6 Rule 1.5 p rovides (in p art) that: (a) A lawyer s f ee shall be re asonable. T he factors to be consid ered in determining the reasonableness of a fee include the following: (1) (2) (3) the time and labor required, the novelty and difficulty of the questions involved and the skill requisite to perform the legal serv ice p rope rly; the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer; the fee customarily charged in the locality for similar legal services; 2 1.15 (Safekeeping p roperty),7 (4) (5) (6) (7) (8) 7 3.3 (Candor tow ard the tribunal), 8 and 8.4 the amount involved and the result obtained; the time limitations imposed by the client or by the circumstances; the nature and length of the professional relationship with the client; the experience, reputation, and ability of the lawyer or lawyers performing the serives; and whether the fee is fix ed or con tingent. Rule 1.15 provides as follows: (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 receiving funds or other property in which a client or third person has an i nterest, a lawyer sh all prom ptly notify th e client o r third pe rson. 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 e ntitled to receive an d, upon req uest by the client o r third person , shall promp tly rend er a f ull ac counting reg arding su ch prope rty. (c) When in the course of representation a lawyer is in possession of property in which both the lawyer and another person claim interests, the property shall be kept separate by the lawyer until there is an accounting and seve rance of th eir interests. If a d ispute arises c oncerning their respective interests, the portion in dispute shall be kept separate by the lawyer until the dispute is resolved. 8 Rule 3.3(a)(1) provides as follows: A lawyer shall not knowingly: 3 (Misconduct). 9 Bar co unsel re comm ends d isbarm ent. Pursuant to Maryland Rule 16-752, we referred the matter to Judge Kathleen L. Beckstead of the Circuit Court for Wicomico County to make findings of fact and conclusions of law. Following an evidentiary hearing, Judge Beckstead found that Respondent had violated MRPC Rules 1.1, 1.3, 1.5, 1.15, 3.3, and 8.4. Neither Bar Counsel nor Re spond ent filed excep tions to J udge B eckstea d s find ings. I. The charges in this matter arose out of Respondent s representation of the Estate of Gordon Bryce Revelle, filed in the Orphans Court for Somerset County. Respondent began initially as the attorney for the estate and, after the death of the personal representative, Respondent applied for and was appointed, to serve as the personal representative. It was alleged that Respondent accepted a $5,000 fee for his services to the estate but deposited the (1) 9 make a false statement of material fact or law to a tribuna l[.] Rule 8.4 provides, in pertinent part, as follows: It is professional misconduct for a lawyer to: **** (b) comm it a cr imin al ac t that refle cts adversely o n the lawyer s h onesty, 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; **** 4 funds into his escro w accou nt. The fee , howev er, was ne ither approv ed by the cou rt nor listed as a disburs ement in a ny of the estate a ccounting s filed by Resp ondent. In addition, Respondent knowingly submitted a false accounting and knowin gly misrepresented the value of the estate fun ds to the cou rt. After an evidentiary hearing in this disciplinary matter, Judge Beckstead made the following factual findings: Based upon the testimony and exhibits produced at the hearing, the Court finds the following facts to be established by clear and convincing evidence: Nathan H. Christopher, Jr. graduated from the Univ ersity of Baltimore School of Law in 1980. He was adm itted to the M aryland Bar in 1981. H e is also a member of the Federal Bar. He has never been disciplined during the twenty years he has practiced law. During the years 2000 through 2003 he engaged in the private practice of law as a solo practitioner out of his h ome in Crisfield, Somerset County, Maryland. He also maintained an o ffice in Salisbu ry, Marylan d durin g the rele vant tim e herein . Mr. Christopher maintained an attorney trust account as part of his private practice. He did not ma intain a busin ess operating accou nt for his practice, instead he paid business expenses from a personal banking account in his name. A ll monies rec eived on b ehalf of h is clients were maintained in his attorn ey trust acc ount. Representation of criminal defendants as a panel public defender constituted ninety percent (90%) of Mr. Christopher s practice. In order to obtain payment fo r his services, h e would complete and submit a fee petition at the conclusion of his representation. The Com ptroller would send M r. Christopher his approv ed fee. M r. Christoph er deposited fees earne d from h is work as a panel public defender into his attorney trust account before he drew it out for his own use. A total of eighty (80) remittance checks from the office of the public defender were deposited into his attorney trust account during the period from August 2000 to February 2003. These remittances represented fees earned by Mr. Christopher and constituted his own money, not client trust funds. See Exh ibit #1, Sub-exhibit #7 (depo sit slips). 5 The Respondent was retained by Susan R. Howard to represent the Estate of Gordon Bryce Revelle, who died on June 16, 2000, leaving a Last Will and Testa ment. Ms. Howard was appointed as personal representative of the estate on August 2 1, 2000. Ms. H oward was also th e sole beneficiary of Mr. Revelle s estate. Ms. Howard maintained the estate checkbook from the time of her appointment until her death on August 15, 2001. On May 11, 20 01, the Re sponden t requested F ive Thousand Dollars ($5,000) from Ms. Howard to cover his anticipated fees and costs. He made this request of Ms. Howard due to his concerns that the estate assets were being depleted by Ms. Howard and that insufficient funds would remain to pay his fee and estate expenses. In response, Ms. Howard wrote Mr. Christopher a check fo r Five Tho usand D ollars from the estate account, which he deposited into his trust account on May 11, 2001. This disbursement of estate funds had not bee n repor ted to or approv ed by the Orph ans C ourt. The initial Inventory prepared by Mr. Christopher and filed with the Orphans Court on May 14, 2001 rep orted estate p roperty totaling $91,631.72, of which $41,411.72 was reported as bank accounts, savings and cash. The First Administration Account was filed July11, 2001, after a Show Cause Order was issue d by the Orp hans Co urt. It reported $ 91,631.72 in estate assets, and requested approval of a total of $135 in expenditures. See Exhibit #1, Sub-Exhibit #9. The $5,000 fee ex penditu re was not rep orted. A December 7, 2000 estate expenditure of $43 5 paid to M r. Christoph er to reimburse him for charges against the e state was n ot reported o n this accounting either. Mr. Christopher could not explain his failure to report these expenditures in his First Administration Accounting. Ms. Howard died on Aug ust 15, 2001. The C ourt finds that Mr. Christopher was on notice at the time of Ms. Howard s death on August 15, 2001 that estate monies were missing based upon his testimony that, At the time Ms. Howard died and I w ent through the house, there was, there was nothing. I mean, there were no canceled checks. There were no copies of bank statements or anythin g to indicate where the money had gone. Tr. at page 74. This is also consistent with his request in May of 2001 for a $5,000 check. On January 23, 2002, the Orphans Court notified Mr. Christopher that 6 the Second Administration Accounting was due. Subsequently, a Show Cause Order was issued for the Second Accounting on April 2, 2002. On May 7, 2002, Mr. Christopher filed a Petition to Be Appointed Successor Personal Representative of the Estate of Gordon Bryce Revelle, which was g ranted b y Order o f the O rphans Cour t dated M ay 14, 20 02. A Second Administration Account was filed by Mr. Christopher, under oath, on May 7, 2002. The Second Administration Account reported estate assets of $91,496.72. The accoun ting reques ted approv al of a total of $900 in expenditures for appraisals and grass cutting. Once again, neither the Five Thousand Dollar fee nor the December 7, 2000 esta te expend iture of $43 5 paid to Mr. Christopher to reimburse him for charges against the estate w ere reported. See Exh ibit#1, Sub-E xhibit 10. Fu rthermore, n otwithstanding the fact that he was on notice that M s. Howa rd had ex pended s ignificant es tate assets, he made no report, nor investigated further prior to filing the Second Accounting. On August 14, 2002, Mr. Christopher closed out the estate account at Peninsula Bank. M r. Christoph er admitted th at as of this date he knew, unequiv ocal ly, that Ms. H oward h ad, in fact, sign ificantly depleted the estate assets during her tenure as personal representative. Mr. Christopher also acknowledged that between May 14, 2002 and August 14, 2002 he had requested and received copies of the estate s bank statements. His check for the estate s bank statements was made on July 31, 2002, which he testified was the date he rece ived the bank s tateme nts. He further testified that the reason he closed the account was because the bank statements reflected that AmericaOn-Line was automatically debiting the account on a monthly basis, and he could not arrange to have them c ease do ing so. He deposited the proceeds of the estate che cking acc ount, totaling $ 2,230.25 in to his trust acco unt. On November 14, 2002, Mr. Christopher filed a Third Administration Accou nt, under oath, which reported estate assets of $90,596, and requested approval of a total of $1,350.67 in expenditures for the property bond and real estate taxes. He admitted that he knew the accounting to be false when he signed it and filed it with the Orphan s Court. H e filed the fa lse report to ga in more time to determine how to proceed because he d id not kno w how to account for the missing money. Neither the Five Thousand Dollar ($5,000) fee nor the Decemb er 7, 2000 estate expenditure of f our hundred thirty-five dollars ($435) paid to Mr. Christopher to reimburse him for charges against the estate were reported. 7 In December of 2002, Mr. Christopher advised the Register of Wills, Gary W. Mill er, that he had falsified the last accounting. See Letter of Orphans Court Judges to Mel Hirshman dated January 21, 2003 which is contained in Plaintiff s Exh ibit 8. Mr. Christopher was removed as personal representative of the estate on December 10, 2002. The Attorney Grievance Commission began its investigation during February 2003. Mr. Christopher filed a Fourth Administration Account dated June 6, 2003. This acco unt accurately reflected Ms. Howard s advanced distributions as personal representative totaling $32,46 1.82. In addition, the Fourth Administration Account properly reported previously undisclosed expenditu res to the Co urt. On Decembe r 14, 2004, after accoun ting to the Court, Mr. Christopher forwarded to Lynn Stein, successor personal representative, a check in the amount of $2,000 representing the remain ing estate pro ceeds in his trust account. He never submitted a request for fee to the Orphans Court, nor took any fee. In fact, he overpaid the estate by $310.00. Mr. Christopher s bank records reflect that on September 10, 2002 , his trust account balance fell below the total estate assets deposited into the trust account to be held for the estate by Five Hundred Seventeen Dollars and Seventy Four Cents ($517.74). Mr. Christopher testified that on September 10, 2002 the withdrawal which caused the deficit was a twelve hundred dollar check drawn for his personal use. On September 11, 2002 two deposits were made totaling $1,453. The deposit slips introduced into evidence, do not establish whether the deposits were, or were not, received at the bank after 2pm on September 10, 2002. In either event, the deficit lasted, at most, for a period of twenty-four hours. Mr. Christopher s trust account was never overdrawn during the r elevant time frame. His use of estate assets was not knowin g and inten tional. Mr. Christopher began drinking heavily in the mid-1980s. Mr. Christopher suffered a heart attack in Augu st of 2000 . As a result, a stent was placed in his chest. He was hospitalized for three days. His recovery lasted nine months. He stopped drinking for six to eight months following his heart attack. During his post-operative recovery, he testified that he experienced anxiety and wa s treated with medication prescribed by his neurolo gist. His medical record reveals that he was evaluated by a neurologist in November 8 2000, and was treated for depression with antidepressant medications. He underwent a second hospitalization due to heart attack-like symptoms, which were ultimately diagnosed as a panic attack, in May 2003. In June of 2003 he began seeing Talmadge Reeves, a psychiatrist. Dr. Reeves diagnosed him with depression and alcohol dependence. He was placed on Wellbutrin, Trazondone, Zyprexa and An tabuse. Alth ough sob er, his psychiatric condition was not improved. In May or June of 2 003, Mr. Christoph er sought help from the Maryland State Bar A ssociation L awyer Ass istance Pro gram. He continues to be monitored by that program for substance abuse and mental health issues, and has been fully compliant w ith their short term and long term requirements, which are set forth m ore fully in Respo ndent s Exhib it #5C. The Director and Assistant Director of the Lawyer s A ssistance Pro gram hav e conclud ed that, as of May 12, 2004, Mr. Christopher is a man using sound judgment who demonstrates remorse f or his past be havior, and who is an honest, responsible, and stable me mbe r of the co mmunity. On November 29, 2003, Mr. Christopher was admitted into the psychiatric unit of the D orchester G eneral Ho spital after bein g found in Cambridge, Maryland behaving bizarrely. He was diagnosed with acute rhabdomyolysis secondary to the use of Zyprexa and Xanax. It is unclear whether the episode w as the re sult of ta king ex cessive dosag es or no t. A psychological evaluation was conducted and the results were consistent with a diagnosis of Major Depression, Severe, Without Psychotic Features, and Alcohol Dependence. He was treated with Neuron tin and Zo loft with moderate success. He remained at Dor chester G eneral Ho spital until December 24, 2003 , when h e was tran sferred to the Eastern S hore State Hospital in Cambridge, Maryland. He remained a t Eastern Shore State Hospital until February 22, 2004. Since his discharg e he has b een treated b y the Lowe r Shore C linic for his psychiatric issues and has continued to attend AA meetings. Dr. Tellefsen testified, very credibly, within a reasonable degree of medical certainty that Mr. Christopher was suffering from Alcohol Dependence and Severe Major Depression during the years 2000 through 2004. In her expert opinion, these conditions we re the root cause of M r. Christopher s inaccurate e state accou nting and m isappropria tion of estate 9 assets, although not the cause of his long history of commingling funds. The Court a ccepts D r. Tellef sen s o pinion . After reviewing the applicable law and the parties arguments, the hearing court made Conclu sions of L aw as f ollows: Respondent [violated MRPC 1.1 by failing] to provide competent representatio n to his client w hen he: (1) (2) (3) (4) (5) (6) (7) (8) requested a $5,000 fee expenditure from his client and failed to report it to the Orphans Court or have it approved; failed to report both the $5,000 fee expe nditure and a $435 es tate expenditure on the First Administration Account filed July 11, 2001; failed to report both the $5,000 fee expenditure and the $435 estate expenditure on the Second Administration Account filed May 7, 2002; failed to investigate the estate account history after notice of improper and unreported expenditures by the personal representative; failed to inform the Orphans Court that the personal representative had significantly depleted the estate assets when he discovered this fact on August 14, 2002; mishandled estate funds when he closed the estate bank account on or about August 14, 2002, and transferred the funds into his trust accoun t; misappropriated $517.74 of estate assets on September 10-11, 2002; and knowin gly executed a false accounting, under oath, when he signed and filed the Third Administration Account on November 14, 2002. Responden t s mishand ling of the e state, estate acco untings, and his escrow account c learly constitutes inc ompeten ce, as each o f these incid ents demonstrates a lack of thoroughness and preparation necessary for the representation of the estate. [Respo ndent viola ted Rule 1 .3 when he] failed to a ct with reaso nable 10 diligence and prom ptness wh en he faile d to file the Second and Third Administration Accounts in a timely manner and undertake a timely investigation into the estate account history prior to filing the Second and Third Administration Accounts. Respondent failed to comply with Rule 1.5 when he requested $5,000 from his client to co ver anticipated fees and costs and failed to petition the Court for these fees or report this money to the Court on the first three accounts. [When] Respondent failed to hold his client s property in an account separate from his o wn prop erty [he violated Rule 1.15]. Respondent deposited fees earned from his work as a panel public defender into his attorney trust account before he drew it out for his use. These remittances represented fees earned by Respondent and constituted his own money, not client trust funds. In addition, M r. Christoph er unintentio nally and unk nowing ly misappropriated estate assets w hen he w ithdrew $ 1,200 fro m his trust account, creating a deficit in the estate balance by $517.74. Where [an] attorney deposited earned fees and money he received from his father into a bank account he titled as an attorney trust account, and used this account for personal and business purposes, such conduct constituted clear and convincing evidence of commingling in violation of both Md. Rules of Professional Conduct 1.5(a) and M d. Rule 16-60 7. Attorney Grievance Commission v. Thompson, 376 Md. 500 , 830 A.2d 474 (2003). Respondent [did not co mply with R ule 3.3 wh en he] w as not cand id with the Orphans Court when he failed to report both the $5,000 fee expenditure and a $43 5 estate exp enditure on the First Administration Account filed July 11, 2001, when he failed to report both the $5,000 fee expenditure and the $435 estate expen diture on the Second Administration Account filed May 7, 2002, and when h e knowingly signed an d submitted the false T hird Administration Account on November 14, 2002. Respondent violated Rule 8.4 when he knowingly violated the aforementioned rules of professional conduct, engaged in fraud and perjury by knowin gly submitting a false accounting, and knowingly misrepresenting the value of e state funds in the estate ba nk accou nt. 11 II. Mr. Christopher recommends that the appropriate sanction for his conduct is a reprimand and continued monitoring by the MSBA Lawyer Assistance Program in reliance upon the opinion of Board certified forensic psychiatrist Christine Tellefsen, M.D., who was asked by Bar C ounse l to evalu ate Res ponde nt. In Dr. Tellefsen s opinion, Resp ondent s mental and physical conditions were the root cause of his professional misconduct, other than commingling fees and trust funds. Bar Counsel, however, recommends disbarment because Respondent engaged in fraud and perjury by knowingly submitting a false accounting and by kno wingly misre presenting the value of estate funds in the estate bank account, including o ther serious m isconduc t. In Bar Co unsel s view , Dr. Tellefsen s opinion concerning Mr. Christopher s severe major depression and dependence on alcohol during the years 2000 through 2004, standing alone, is insufficient to mitigate the Responden t s criminal behavior and dishonesty such that a sanction less than disbar ment is warra nted. Accord ing to Bar C ounsel, the e vidence p resented with regard to the period under consideration does not support a conclusion that Respondent was utterly unable to conform his conduct in accordance with the law and the Maryland Rules of Professional Conduct. Pursuant to Md. Rule 16-757(b), at a hearing of a disciplinary or remedial action the Attorney Grievance Commission has the burden of proving by clear and convincing evidence the averments of the petition. In accordance with that same rule, the respondent has the 12 burden of proving an af firm ative defe nse o r a matter of m itiga tion or ex tenu ation by a prepon deranc e of the eviden ce. It is well settled th at this Court exercises original jurisdiction over attorney discipline proceedings. We conduct an independent review of the record, accepting the hea ring judge s findings of fact unless clearly erroneous. We will not disturb the factual findings of the hearing judge if they are based on clear and convincing evidence. Our review of the hearing judge s conclusions of law is de novo. Attorney Griev. Com m n v. Gore, 380 Md. 455, 468, 845 A.2d 1204, 1211 (2004) (quoting Attorney Griev. Co mm n v . Davis, 375 Md. 131, 157-58, 825 A.2d 430, 445-46 (2003) (citation s omitte d)). Md. Rule 16-759(b )(A) provides: If no ex ceptions are filed, the Court may treat the findings of fact as established for the purpose of determ ining ap propria te sancti ons, if a ny. Neither pa rty to this proceeding filed exceptions to the hearing court s findings of fact and conclusions of law. Thus, based upon our review of the record, we are satisfied that the evidence supports the hearing judge s findings of fact in accordance with the clear and convincing evidence standard.10 In addition, w e agree w ith the hearin g judge that Mr. 10 The dissent asserts that it is a misstatement or misreading of the record to say that Mr. Christopher's mental and physical condition caused his misconduct. (Slip Opinion, page 3). To the contrary, our decision is based squarely upon the uncontroverted findings of fact of the hearing judge. Our standard of review in these matters requires that we "accep t a hearin g judge 's finding s of fac ts unless clearly erro neous ." Gore, 380 Md. at 468, 845 A.2d at 1211. Furthermore, Md. Rule 16-759 (b) (A) specifically provides that "[i]f no exceptions are filed, the Court may treat the findings of fact as established for the purposes of determ ining the ap propriate san ctions, if any." N o exceptio ns were f iled with regard to the findings of fact and conclusions of law of the hearing judge. Therefore, we 13 Christopher violated Md. Rules 16-604 and 16-607, as well as Section10-306 of the Business and Occupation Article. In addition, we agree that Mr. Christopher violated MRPC Rules 1.1, 1.3, 1.5, 1.15, 3.3, and 8.4. The sole issue in this ca se is the resolu tion of the a ppropriate sanction to impose because of Mr. Christopher s misconduct. In answering that question, we review our recent c ases, keepin g in mind th at our goal in matters of attorney discipline is to protect the public and the public s confiden ce in the lega l profession rather than to punish the attor ney. See Att orney G riev. Co mm n . v. Vanderlinde, 364 Md. 376, 388, 773 A.2d 463, 470 (2001). We have said th at, [d]eterm ining the ap propriate san ction require s the Court to consider the facts and circumstances of each particular case, including consideration of any mitigating factors. Attorney Griev. Co mm n v. Post, 379 Md. 60, 71, 839 A.2d 718, 724 (2003). We have recognized that the nature and gravity of the violations and the intent with which they w ere com mitted are relev ant con sideratio ns. Id. quoting Attorney Griev. Comm n of Maryland v. Awuah, 246 Md. 420, 435, 697 A.2d 446, 454 (1997). We also have considered the atto rney s prior grievance history . . . the attorney s remorse for the miscond uct, and the likelihood of the conduct being repeated. Post, 379 Md. at 71, 839 A.2d a t 724-7 25 (citat ions om itted). accept Dr. Tellefsen's report and conclusions as established facts for purposes of determ ining th e appro priate sa nction in this case . 14 We have found that a less severe sanction than that ordinarily dictated may be appropriate when an attorney is able to establish the existence of compelling extenuating circumstances. Attorney Griev. Comm n v. Kenney, 339 Md. 578, 588, 664 A. 2d 854, 859 (1995) (citations om itted). We ha ve held tha t compe lling extenu ating circumstance s : [Are] only those w hich may cau se this Court to view the conviction in a light which tends to show that the Respondent s illegal act, committed in violation of a criminal statute, resulted from intensely strained circumstances or that the magnitude and the nature of the crime are not so severe as to compel disbarment. Kenn ey, 339 Md. at 588, 664 A.2d at 859 (interna l citations omitted ). We have dete rmined in th e past that alco holism is a mental condition that qualifies as one such mitigating fa ctor sufficie nt to warran t a sanction les s severe tha n disbarm ent. Kenney, 339 Md. at 588, 664 A.2d at 859. The record must show, however, that the evidence before the hearing jud ge was le gally sufficient to establish a ca usal relationsh ip between the misconduct and the alc oholism , and that the addiction was to a substantial extent responsible for the conduct of the attorney. Kenney, 339 Md. at 589, 664 A.2d at 859. Our focus has been on whether the alcoholism, health, mental problem or physical condition of the attorney was the root cause, i.e., respon sible for the m isconduct of the a ttorn ey. Vanderlinde, 364 Md. at 408-09, 773 A.2d at 482 (tracing the history of this Court s acceptance of an attorney s mental condition or impairment arising from alcohol and depression as a mitigating fa ctor). 15 Recently in Attorney Griev. Comm n v. Goodman, 381 Md. 480, 850 A. 2d 1157 (2004), we held that disbarment was the appropriate sanction for an attorney s misconduct in filing a complaint under a different attorney s nam e and misle ading the trial ju dge to believe that the attorney was standing in for the attorney nam ed in the pleading. In mitigation, Mr. Go odman a rgued that h is health proble ms, i.e., his low blood sugar and a bad reaction to some medication he was taking caused his misconduct. The trial judge who conducted the disciplinary hearing found no medical evidence that respondent had low blood sugar during the relevant time. There was no evidence that respondent was unable to think clearly during the p eriod in question. Moreover, Dr. Adle, the psychologist who performed a psychological evaluation of Mr. Goodman , concluded that Mr. Goodman suffered from diabetes, a history of chronic pain, financial stress, anxiety, and depression, but he could not confirm that Mr. Goodman had depressio n or anxiety during the relevant time p eriod. In addition, Dr. Tellefsen testified, as a rebuttal witness for Bar Counse l, that she wa s unable to find any m ental cond ition that wa s impairing [ Mr. Go odman s] ability to function at the time. Goodman, 381 Md. at 489, 850 A.2d at 1162. The hearing court ultimately concluded that the record did not establish that any mental health disorder caused [Mr. Goodman s] behavior. . . none of the oth er problems experien ced by [Mr. Goodman] (car acciden ts, bankrup tcy, financial stressors, pain and sleep medication, diabetes, depression) caused his behavior in this case . . . the record establishes [Mr. Goodman s] behavior was motivated by his desire not to interfere with his job as an APD, his belief that the case would be settled, and his desire n o to app ear as b oth a w itness an d the atto rney of re cord. 16 Id. Neither the hearing court nor this Court found any compelling extenuating circumstances to justify imposing less than the most severe san ction of disb arment. Sim ilarly in Vanderlinde, 364 Md. 376, 773 A.2d 463, a case upon which our holding in Goodman rests, we held that an attorney s dysthymic disorder, or long lasting depression, was not the cause of her dishonest behavior or a reas on for her to av oid disb armen t. Vanderlinde, 364 Md. a t 387, 41 4, 773 A .2d at 46 9, 485. In Vand erlinde , an attorney, over a period of time, while working outside of the profession of law, misappropriated money from her employer for her own u se. Vanderlinde, 364 Md. at 381, 419, 773 A.2d at 465, 488. In that case, the hearing judge expressly found that [Vanderlinde], in spite of her mental conditio n, was able to control her conduct. The evidence supported that finding. [The hearing judge] declined to find that [Vanderlinde s] mental conditio n was the roo t cause o f the m isappro priation . [The hearing judge] agreed with Dr. Tellefsen in that regard. Vanderlinde, 364 Md. at 387-88 n.6, 773 A.2d at 469 n.6. Although Dr. Blumberg, a witness for the respondent, fou nd that Ms. Va nderlinde s condition significantly impaired her judgment and was the roo t cause o f the m iscond uct, Dr. Tellefsen, called in rebuttal, disagreed that Ms. Vanderlinde s mental condition was the root cause of her con duct. Vanderlinde, 364 Md. at 387, 773 A.2d at 469. It is noteworthy that, both Drs. Blumberg and Tellefsen testified that [Ms. Vanderlinde] knew that her conduct was wrong and that she could have controlled that conduct. Id. 17 At the outset in Vanderlinde, Judge Cathell, writing for the Court, cautioned that we will keep in mind, especially in cases of dishonesty, intentional misappropriation, fraud, serious criminal cases, and the like, that our primary function always is to protect the public, not attorneys . . . . Vanderlinde, 364 Md. at 388, 773 A.2d at 470. Further expounding on that proposition, Judge Cathell wrote that in cases of intentional dishonesty, misappropriation cases, fraud, stealing serious criminal conduct and the like, we will not accept, as compelling extenuating circumstances, anything less than the most serious and utterly debilitating mental or physical health conditions, arising from any source that is the root cause of the misconduct and that also result in an attorney s utter inability to conform his or her co nduct in accordance with the law and with the MRPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of stealing, dish onesty, fraudulent conduct, the intentional misappropriation of funds or other serious criminal conduct, whether occurring in the practice of law or otherw ise. Vanderlinde, 364 Md. at 413-14, 773 A.2d 485. Furthermore, in Vanderlinde, we did not find the circu mstanc es so co mpellin g. There was scant evide nce that M s. Vande rlinde could not handle the every day economic affairs of her life. [S]he was able to keep a fai rly complex scheme operating over a long period of time without being found out, and eventually was able to return the monies b efore the th efts were discovered. Vanderlinde, 364 Md. at 415, 773 A.2d 486. We concluded that [h]er mental problems did not affect her ability to be a competent and, for a period, successful thief. Id. Even though there was no evidence of alcohol abuse, we made it clear that [t]he 18 existence of such f actors is less co mpelling in serious cases. Vanderlinde, 364 Md. at 414, 773 A .2d at 48 5. Vanderlinde also illustrates that given the facts and circumstances of the attorney s misconduct dishone sty, deceit, fraud a nd the like we will normally accept a hearing court s findings that certain mental conditions exist and have c ertain ef fects. Id. But, this Court has the ultimate duty to answer the question of whether such findings are compelling extenuating circumstances that justify a lesser sanction. Id. As a matter of policy we have said that in considering offenses relating to honesty, mental impairment, whether arising out of alcoholism or out of other factors, will not warrant a sanction lesser than disbarment unless there is almost conclu sive, and essentially uncontroverted evidence tha t would support a hearing judge s finding not only that the attorney had a serious and debilitating mental condition but also that the mental condition, in a sustained fashion, affected the ability of the attorney in normal day to day activities, such that the attorney was unable to accomplish the least of those activities in a normal fashion. Unless that standard is met, the impairment is not the root cause of the m iscond uct. Vanderlinde, 364 Md. at 418-19, 773 A.2d at 488. Prior to Vand erlinde , and in the case of Kenney, we held that an indefinite suspension was the appropriate sanction where the hearing judge found that the attorney s misappropriation of client funds was caused by the attorney s alcoholism. This Court emphasized that because of the hearing judge s specific factual findings that alcoholism was, 19 to a substantial extent, the responsible, the precipitating, the root cause of the attorney s miscond uct, in that case, we would adhere to precede nt and imp ose a sanc tion of inde finite suspension rather than dis barme nt. Kenn ey, 339 Md. at 586, 590, 664 A.2d at 858, 860. Because of our skepticism about the use of alcoholism as a mitigator, we cautioned the Bar that in the future , absent truly compelling extenuating circumstances, alcoholism would not constitute a sufficient mitigator to conduct that would otherwise warrant disbarment as the appropriate sanctio n. Kenney, 339 Md. at 578, 591, 664 A.2d at 854, 860. On the other hand, we observed that, alcoholism is a serious medical condition and w e will be more sympathetic to attorneys w ho recog nize their nee d for assistan ce and see k to rehabilitate themselves before their transgressions are disc overed . Kenney, 339 Md. at 595, 664 A.2d at 862. Thu s, in both Vanderlinde and Kenney, we adh ered to the p olicy that [s]evere sanctions are necessary to protect the public from being victimized from any further dishonesty on the part of the attorney. Kenn ey, 339 Md. at 594-95, 664 A.2d at 862. Specific ally, in Vanderlinde, we expo unded u pon our h olding in Kenney and explained that in the cases of stealing, dishonesty, fraudulent conduct, the intentional misappropriation of funds, or other serious criminal conduct, we will not consider imposing less than the most severe sanction of disbarment, absent comp elling cir cumsta nces. Vanderlinde, 364 Md. at 414, 773 A.2d at 485. III. 20 In the present case, Mr. Christopher s mental condition and impairment arising from alcoholism and severe depressio n are compelling ex tenuating factors that affecte d his ability to function in his normal day-to-day activities, in a sustained fashion, between the years 2000 and 2004. In August 2000, Mr. Christopher was hospitalized for myocardial infarction.11 His cardiac problems improved, but once he withdrew from alcohol after his heart attack, he developed severe chronic daily headaches. In Novembe r 200 0, he was treat ed by a neurologist because of depression, prior alcohol dependence, and recent sobriety. He was treated with an tidepres sants w ithout m uch su ccess. After seeing a neurologist in November 2000, Mr. Christopher continued to suffer from anxiety and depression and feeling drugged and un able to w ork bec ause of the eff ects of t he me dication he wa s taking . In June 2003, his diagnosis was depression and alcohol dependence with emerging sobriety. His psychiatrist, Dr. Reeves, prescribed Antabuse,12 Wellbutrin,13 Trazodone,14 and Zyprexa,15 resulting in only brief periods of improvement in his mental health. In 11 Popularly known as a heart attack, sudden death of part of the heart muscle characterized, in most cases, by severe, unremitting chest pain. ENCYCLOPEDIA OF MEDICINE, 710-12, The American Medical Association (1989). 12 Trade name for disulfiram (a drug used to act as a deterrent to drinking alcohol). DORLAND S, pp. 95, 536. 13 Trade name for a preparation of bupropion hydrochloride (a drug used in antidepressants). DORLAND S ILLUSTRATED MEDICAL DICTIONARY, 253, 1985 (29TH Ed. 2000). 14 An antidepressant drug. ENCYCLOPEDIA OF MEDICINE, 1008. 15 Trade name for a preparation of olanzapine (a drug used for the symptomatic management of psychotic disorders). AHFS DRUG INFORMATION, 2271, 2285, American 21 Novemb er, Mr. Christopher was admitted to Dorchester Gen eral Hosp ital because o f his bizarre behavior in the community. He remained there for approximately one month, confined to the ps ychiatric w ard of th e hosp ital. During his hospitalization he was confused and amnestic. 16 The doctors administered antipsychotic medication to him while he was there. Mr. Christopher was discharged after findings which were consistent with a diagnosis of Major Depression, Severe, Without Psychotic Features, and Alcohol Dependence. After a month of treatment, doctors determined that Mr. Christopher needed further hospitalization, and he was confined at the Eastern Shore State Hospital. After testing and treatment at that facility, Mr. Christopher was discharged after two m onths with a diagno sis of alcoholism, addiction and psychopath ic deviance . At the time of his discharge, he was prescribed Zoloft17 and Neurontin.18 Following the onset of confusion, it took three months of hospitalization before [Mr. Christopher] was stable enough to be returned to the Society of Health System Pharmacists, (2004), § 28:16.08.04. 16 Amnestic is a disturbance in memory that is either due to the direct physiological effects of a general medical condition or due to the persisting effects of a substance. DIAGNOSTIC AND STATISTICAL MANUAL OF MENTAL DISORDERS, 155-56, American Psychiatric Association, 4th Ed. § 294.8 (DSM-IV). 17 Trade name for preparation of sertraline hydrochloride (used as an antidepressant). DORLAND S, 1629, 1997. 18 Trade name for a preparation of gabapentin (used as adjunctive therapy in the treatment of partial seizures). DORLAND S, 721, 1212. 22 comm unity. According to his medical records, his treatment for major depression has been comp licated b y his physica l health c onditio n and h epatic se nsitivity. 19 Dr. Tellefsen testified that, in her opinion and to a reasonable degree of medical certainty, Mr. Christopher was suffering from Alcohol Dependence and Severe Major Depression during the period of 2000 to 2004 . . . [and that h]is mental conditions were the root cause of his misconduct during the years 2000 to 2004. This testimony was neither controverted nor does Bar Counsel challenge Dr. Tellefsen s conclusions or the hearing judge s factua l finding s. Mr. Christopher was cou nsel of reco rd for the E state of Go rdon Bryce Revelle from August 2000 un til December 10, 2002. He admitted that he knew the Third Administration Accou nt, filed unde r oath, was false wh en he sign ed it and filed it with the O rphans C ourt. He exp lained that he filed the false report to ga in more time to determine how to proceed because he did not know how to account for the missing money. Neither the Five Thousand Dollar ($5, 000) fee nor the December 7, 2000 estate expenditure of four hundred thirty-five dollars ($435) paid to Mr. Christopher to reimburse him for charges against the estate were reported. In December 2002, Mr. Christopher informed the Register of Wills that he had filed a false accounting. Shortly thereafter, on December 10, 2002, Mr. Christopher was removed as perso nal repr esentati ve of th e estate. 19 Hepatic is related to the liver. 23 The Attorney Grievance Comm ission bega n its investigatio n in February 2003, and on June 6, 2003 , Mr. C hristoph er filed a Fourth Adm inistratio n Acc ount. This accounting was accurate. After properly reporting to the court the expenditures of the estate, Mr. Christopher paid the successor personal representative of the estate, $2,000 representing the remaining estate proceeds in his trust account. He never submitted a request for a fee to the Orphans Court, nor took a fee. In fact, he overpaid the estate by $310.00. We note that Mr. Christoph er reported his dishonesty to the Re gister of Wills before any investigation began concernin g his transgre ssions. Furth ermore, D r. Tellefsen s tated in her report that, It is not clear if [Mr. Christopher s] more severe depression erupted over the years in relation to h is alcoholism or if it was a separate iss ue which was exa cerbated b y his alcoholism . It is clear, however, that he had symptoms consistent with severe major depression for at least four years. His behavior over the past four years and his handling of the Revelle estate was consistent with self-neglect and haphazard attention to tasks suggestive of Alcoh olism and M ajor Dep ression. Th us, while under this state of severe depres sion, it ap pears th at Mr. C hristoph er was unable to contr ol his co nduct. Mr. Christopher made efforts to address his medical condition. In June 2003, he began treatment with a psychiatrist, Dr. R eeves, and shortly thereafte r, began trea tment in Alcoholics Anonym ous. Altho ugh M r. Christoph er did not be gin treatment until after he disclosed his transgressio ns and af ter the Attorn ey Grievanc e Comm ission bega n its investigation into his misconduct, nonetheless, we are impressed that Respondent recognized 24 the need for assistance and soug ht to rehabili tate him self. See Kenney, 339 Md. at 595, 664 A.2d at 862. His acknowledgment of wrongdoing was, indeed, a first and crucial step in the rehabilitative process. Because of the compelling extenuating circumstances of this case, we believe the appropriate sanction is an indefinite su spension, w ith the right to apply for reinstate ment. The public and the legal pro fession are better served by lawyers wh o admit an d correct the ir errors. There is am ple eviden ce in the reco rd that if Re sponden t, continues to seek psychiatric treatment, is compliant with his m edication, and remains so ber, his ability to practice law [can be] restored. Ever mindful that o ur goal in attorney disciplinary proceedings is the protection of the public, we hold that the extenuatin g circums tances of th is case co mpel a less sev ere san ction tha n disba rment. Mr. Christopher s severe major depression and alcoholism culminated in a three month hospitalization which included the administration of antipsychotic and antidepressive drug therapy. His debilitating mental and physical condition has lasted for a long period of time and is the root cause of his misconduct, except for his commingling of fees and trust funds. His explanation for placing earned fees into his trust account was to avoid the situation of ever ov erdrawin g that accou nt. Although we do not approve of such a practice, the explanation is illustrative of Mr. Christopher s confused thought process during the relevant time period. T hus, we c annot say that his confused state of m ind and severe depression did not affect his day to day practice of law. We are not convinced, however, that 25 just because Respondent regularly appeared in District Court as a panel attorney, during the period of his dep ression, he w as able to conform his conduct in accordance with the law and the M RPC . Between August 2000 and February 2003, Mr. Christopher made regular court appearances and deposited into his account approximately 80 checks representing payment for his services. There was evidence, on the other hand, that he did not spend adequate time on case preparation during the period in question. Since 2000, he experienced intense anxiety and had difficulty concentrating and making d ecisions. Fo r a period of time after his heart attack in November 2000, Mr. Christopher developed severe chronic headaches which continued daily. He was evaluated b y a neurologist in Novem ber 2000. There was, at that time, evidence of depression and alcohol dependence. During this period, Mr. Christopher took antidepressants, one of which was Pamelor. When he took this medication he felt drugged and was unable to work. In Dr. Tellefsen=s written summary of her evaluation of Mr. Christopher, she informed Bar Counsel that with reg ard to the Estate of Gordon Bryce Revelle, A[Respo ndent] repo rted feeling c onfusion , apathy and h opelessne ss in regard to that case. At the same time, he reported that he was attending to his other less complicate d criminal cases, although he w as not actually doing much w ork in general.@ In addition, Dr. Tellefsen testified at the disciplina ry hearing w ith regard to Mr. Christopher=s behavior, that the failure to per form his obligations, the procrastination, the neglect, [are] b ehaviors that are consistent with depression and alcoholism.@ 26 If an attorney, through treatment, can adequately address a mental or physical problem affecting his ability to competently practice law, he or she should be given an opportun ity to correct that problem. Any petition for reinstatement will have to address the R espondent s then present mental condition, as well as his overall fitness to resume the practice of law. At a minimum, any petition for reinstatement must contain the following: (1) a statement signed by Dr. Tellefsen or other similarly qualified health care professional certifying that Nathan H. Christo pher, Jr. is currently mentally and physically competent to practice law and is receiving o ngoing trea tment; (2) verification from the MSBA Lawyer Assistance Program that Nathan H. Christopher, Jr. is currently using so und judg ment and is an hone st, responsible, and stable member of the community; and (3) verification of monitoring by the MSBA Lawyer Assistance Program from the date of the filing of th is Opinion until consideration of the motion to lift suspension by this Court of Nathan H. C hristopher, Jr. s activities during that time period . IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY T H E C L E R K O F T H I S C O U R T, INCLUDING THE COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-515(C), FOR WHICH SUM JUDGMENT IS ENTERED IN F A V O R O F T H E A T T O R N EY GRIE V A N C E C O M M I S S I O N OF MARYLAND AGAINST NATHAN H. CHRISTOPHER, JR. 27 IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No.36 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. NATHAN H. CHRISTOPHER, JR. 28 Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Dissen ting op inion b y Raker, J ., which Battaglia, J., joins Filed: November 16, 2004 29 Raker, J., dissenting, in which Battaglia, J., joins: There is no dispute in this case as to respondent s misconduct. The hearing judge found that respondent engaged in fraud and perjury by knowingly submitting a false accounting, and by knowingly misrepresenting the value of estate funds in the estate bank account. Respondent also violated the Rules of Professional Conduct by lacking competency and diligence, by commingling and misappropriating funds, and through certain fee issues. It is a serious transgression for an attorney to obtain a legal fee for handling a n estate matter withou t prior ap proval of the O rphans Cour t. See Attorney Griev. Comm'n v. Owrutsky, 322 Md. 334, 344, 587 A.2d 511, 516 (1991) (stating that an attorney has no right to estate funds, either as a commission or as an attorney s fee, unless and until an approval pursuant to § 7-601 or § 7-602 of the Estates and Trusts Article, Maryland Code (1974, 1990 Cum. Supp.) has been obtained from the Orphans Court ). The attorney must first file in the Orphans Court a petition setting forth reasonable detail; the fee is subject to court approval and the court finding that the fee is fair and reasonable in the light of all of the c ircums tances. See Md. Code (1974, 2001 Repl. Vol., 2003 Cum. Supp.), § 7-602 of the Estates & Trusts Article. It is an even more serious violation of the Rules of Professional Conduct to misrepresent to a court and to file a f alse acc ountin g. By filing a false acco unting, respo ndent com mitted a frau d upon th e court. Bar Counsel maintains that the appropriate sanction in this case is disbarmen t. I agree. Respondent s mitigating evidence is insufficient to justify a sanction less than disbarme nt. There is also no disp ute that respo ndent suf fered from physical and mental disorders, and abused alcohol. The question, with respect to sanction, is to what extent his conditions caused or cont ributed to his m iscond uct. The ma jority s conclusion that respondent suffered from a confused state of mind affecting his day to day practice of law and that he was not able to conform his conduct in accordance with the law is simply unsupported. Respondent served as a panel attorney for the Office of the Public Defender and he regularly received checks from the Public Defender for his services. In fact, he earned over $50,000.00 from August, 2000 to February of 2003, and deposited eighty remittanc es into his account. He told Dr. Tellefsen that he performed competently as a public defender and that, to his knowledge , there were no post-c onviction proceedings initiated against him. There was no eviden ce that Responde nt failed to act appropria tely as a panel pu blic defen der. Responden t s false accounting statement which he filed in the estate proceeding was the product of his own reasoning and rationalization that he needed m ore time to figure out a way to handle the issue of the depleted account and the improper fee he had taken from the estate. Respondent testified that the accounting he filed in November, 2002, contained false figure s, that he kne w it was f alse whe n he signe d it, and that he filed the -2- false administration account because he needed more time. Respondent testified as follows: I was not well-experienced in estate adm inistration, and this estate had become more than a simple routine matter with the death of Ms. Howard and the way the money had been handled, and I was fran kly at a loss as to ex actly how to deal with it. I was constantly waffling back and forth as to whether I should sell the house or transfer it in kind. And then the re was the issue of the missing money. At the time I just did not understand how I was going to be able to show what had happened to it. Thoug h, in filing the f ourth acco unt I was a ble to work out a process for doing that. A nd that wa s basically why I talked to the Register of Wills Gary Miller, because I wanted his expertise to give me some guidance as to how to resolve the estat e. I do not suggest that depression, alcohol abuse, and physical maladies did not cause or contrib ute to res ponde nt s inco mpete ncy or lac k of dilig ence. But to say that his condition caused him to file the false estate accounting or to commingle funds or to take a fee before court authorization is to misstate or misread the record. Alcoholism or other health and mental problems may justify a sanction less than disbarment when those conditions are the root causes , of the miscon duct, i.e. are respon sible for the m isconduc t. The record does not support respondent s position that the root causes of the serious misconduct were his mental and physical conditio ns. The fact that respondent s behavior and the failure to perform his obligations, the procrastination, the neglect, [are] behaviors that are consistent with depr ession and alcoholism is insufficient to esta blish that his condition was the root cause of all of his serious misconduct. It is simply hard to believe -3- that respondent could not conform his conduct in accordance with the law and the Rules of Professional Conduct in only one area of the law, but that he was able to do so as a public defender in over eighty matters. Additionally, based on his ow n testim ony, I believe he recognized that money was missing from the estate and he intentionally filed the false accounting to buy additional time. This Court has said over and over again that the purpose of attorney discipline and sanctions is to protect the public. See, e.g., Attorney Grievance v. Mininsohn, 380 Md. 536, 571, 846 A.2d 353, 374 (2004). In Attorn ey Grie vance v. Van derline , 364 Md. 376, 41314, 773 A.2d 463, 470 (2001), we discussed the type of circum stances suf ficient to mitig ate against disb arment in cases involving misappropriation and fraud. We stated as follows: Ac cord ingly, we reiterate once again the position we announced in Kenney.[1] Moreover, we expound upon it by holding that, in cases of intentional dishonesty , misappropriation cases, fraud, stealing, serious criminal conduct and the like, we will not accept, as compelling extenuating circumstan ces, anything less than the most serious and utterly deb ilitating menta l and physical h ealth conditions, a rising from any source tha t is the root cause of the miscond uct and that also result in an attorney's utter inability to conform his or her conduct in accordance with the law and with the MRPC. Only if the circumstances are that compelling, will we even consider imposing less than the most severe sanction of disbarment in cases of . . . the intentional misapp ropriatio n of fu nds . . . . 1 Attorney Griev. Comm n v. Kenney, 339 Md. 578 , 664 A.2d 854 (1995). -4- Disbarment is the approp riate sanction in this case. This is in line with the American Bar Association Standards for Imposing Lawyer Sanctions (1986). Stan dard 5.11 p rovides tha t: Disbarm ent is genera lly appropriate w hen: (a) a lawyer engages in serious criminal conduct a necessary elem ent of which includes intentional interference with the administration of justice, false swearing, misrepresentation, fraud, extortion, misappropriation, or theft; or the sale, distribution or importation of controlled substances; or the intentional killing of another; or an attempt or conspiracy or solicitation of another to commit any of these offenses; or (b) a lawyer engages in any other intentional conduct involv ing dish onesty, fraud, deceit, or misrepresentation that seriously adversely reflects on the la wyer's fitn ess to pr actice. Respondent engaged in fraud, dish onesty and d eceit that seriou sly adversely reflec ts on his fitness to practice law. I am not unsympath etic to respondent s mental and physical condition. Nonetheless, the public needs protection. Dr. Tellefsen testified that respondent has suffered from depression his entire life; that his de pression w as intensified and com plicated by his drinking which sta rted fifteen o r twenty years ago ; and that his c urrent cond ition today is precarious. More over, it ap pears th at respo ndent is not rece iving an y psychoth erapy. The conditions imposed by this Court as a predicate for reinstatement are unrealistic. How can the MSBA Law yer Assistance Program certify that respondent is an honest member of the -5- com mun ity? How can the program certify that respondent is responsible and stable? How is the Lawyer Assistance Program supposed to discharge its monitoring of respondent during his period of suspension? The Lawyer Assistance Program of the Maryland State Bar Association is one of the best programs in the c ountry, but its resources are limited. This Court should not impose such an obligation of the program. If, and when, respondent is sufficiently recovered to practice law without jeopardizing the public, he can apply for reinstateme nt. The burden is on respondent to demonstrate that a sanction less than disbarment is appropriate. He has failed to do so and should be disbarred. Judge Battaglia has authorized me to state that she joins in this dissenting opinion. -6-

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