Attorney Grievance v. Rose
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IN THE COURT OF APPEALS OF MARYLAND Misc. Docket AG No. 39 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. SHUAN ROSE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene JJ. Opinion by Bell, C.J. Filed: October 14, 2004 The Attorney Grievance Commission of Maryland, the petitioner, acting purs uant to Maryland Rule 16-751,1 approved the filing by Bar Counsel of a Petition For Disciplinary or Remed ial Action a gainst Shu an Rose , the respond ent. In the petition, Bar Counsel charged that the respondent engaged in misconduct, as defined by Maryland Rules 16-701 (i),2 and 16-812, and consisting of violations of various of the Maryland Rules of Professional Conduct, as adopte d by the la tter Ma ryland R ule. Specifically, he alleged that the resp ondent v iolat ed R ules 1.15 , Saf ekee ping Prop erty, 3 5.4, Professional Independence 1 Maryland Rule 16-751 provides: (a) Com mencem ent of Dis ciplinary or Re medial A ction. - Upo n approv al of the Commission, Bar Counsel shall file a Petition for Disciplinary or Remedial Action in the Court of Appeals. 2 Pursuant to Maryland R ule 16-70 1 (i) Profe ssional misc onduct o r miscond uct has the meaning set forth in Rule 8.4 of the Maryland Rules of Professional Conduct, as adopted by Rule 16-812. The term includes the knowing failure to respond to a request for information authorized by this Chapter without asserting, in writing, a privilege or other basis for such failure. 3 Rule 1.15 provides: (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, Ch apter 600 o f the Ma ryland Rules. O ther proper ty 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. (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 of a Lawyer, 4 5.5, Unauthorized Practice of Law,5 8.1, Bar Adm ission and Disciplinary entitled to rece ive and, up on reque st by the client or third person, sha ll prom ptly re nder a fu ll acc ounting rega rding suc h pro perty. (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 u ntil the d ispute is resolve d. 4 Rule 5.4 provides: (a) A lawyer or law firm shall not share legal fees w ith a nonlawyer, except that: (1) an agreemen t by a lawyer with the lawyer's firm, partner, or associate may provide fo r the payment of mon ey, over a reasonable period of time after the lawyer's death, to the lawyer's estate or to one or more specified persons; (2) a lawyer w ho purch ases the pra ctice of a law yer who is deceased or disabled or who h as disappe ared may pu rsuant to the provisions of Rule 1.17, pay the purchase price to the estate or representative of the law yer. (3) a lawyer who undertakes to complete unfinished legal business of a deceased lawyer may pay to the estate of the deceased lawyer that proportion of the total compensation which fairly represents the services rendered by the deceased lawyer; and (4) a lawyer or law firm may include nonlawyer employees in a comp ensation or retirement p lan, even tho ugh the pla n is based in w hole or in pa rt on a prof it-sharing arran gement. (b) A lawyer shall not form a partnership with a nonlawyer if any of the activities of the p artnersh ip cons ist of the practice of law . 5 Rule 5.5 provides: A law yer shall not: (b) assist a person who is not a member of the bar in the performance of activity that constitutes the unauthorized practice of law . 2 Matters,6 and 8.4, M isconduc t.7 We referred the ca se to the Honorab le Evelyn Omega Cannon, of the Circuit Court 6 Rule 8.1 provides: An ap plicant for ad mission or re instatemen t to the bar, or a la wyer in connection with a bar admission application or in connection with a disciplinary ma tter, shall not: (a) knowingly make a false statement of material fact; or (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 inform ation oth erwise protecte d by Rul e 1.6. 7 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: (a) violate or attempt to violate the Rules of Professional conduct, knowingly assist or induce another to do so, or do so through the acts of an other; * * * * (d) engage in conduct that is prejudicial to the administration of justic e. 3 for Baltimore City, for hearing pursuant to Rules 16-752 (a)8 and 16-757 (c). 9 Despite being served, the respon dent did no t respond to the petition or file an answ er to the petitioner s request for discovery. Consequently, an Order of Default was entered and served on him. Nevertheless, the respondent did not move to vacate the order and, although he appeared at the hearing, he arrived late and offered no evidence. Following the hearing, the hearing co urt made findings of fact, by clear and convincing evidence, and drew conclusions of law, as follows. The Respondent was admitted to practice law in the State of Maryland on March 4, 1985. The Respondent is not admitted to practice law in any other jurisdiction. During times relevant to the Petition for Disciplinary or Remedial Action, Respondent maintained a law office in Baltimore City, Maryland. 8 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. 9 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. 4 Bar Counsel sent a letter to Respondent dated February 20, 2002 asking Respondent to explain an overdraft on his trust account and requested that Respondent provide financial records relating to his attorney trust account. Bar Counsel asked that Respondent send a written response w ithin ten (10) days of the receipt of the letter. On February 21, 2002, Respondent received the letter and on or about that date, telephoned Bar Counsel*s office, and spoke with Bar Counsel*s Assistant. Respondent represented that he would send a written respon se to the letter. H e did not. On or about April 25, 2002, Bar Counsel*s Assistant contacted Respondent by telephone and reminded the Respondent of Bar Counsel*s request. During the telephone call of April 25, 2002, Respondent once again represented that he would send a written response. H e did no t. On or about May 14, 2002, an Assistant Bar Counsel sent Respondent a letter requesting that he provide the financial records relating to the attorney trust account and a written response e xplaining the overdraft. On or about May 28, 2002, Attorney Grievance Commission Investigator, Dennis Biennas, served the Respondent with a copy of a subpoena to the Bank of America for records on Respondent*s atto rney trust a ccou nt. T hat same day, Respondent gave Biennas a letter addressed to Assistant Bar Counsel dated May 28, 2002. In this letter, Respondent states, I was contacted by Mary Harris, of the Paralegal Network, a com pan y that performs paralegal services and she told me that she had a client that needed legal representation that she could not prov ide. The letter explained that Respondent served as the attorney for the client, James King, and that Ms. Harris performed paralegal 5 services as an independ ent contrac tor with his law firm. Describing the fee arrangement, the letter stated that [M r. King] ag reed to pay $2500 dollars by February 13, 2002' and that upon receipt of the check, Ms. Harris asked for an advance of $1250 dollars on the check for work that she had done as well as fo r ongoing efforts on the case. Also, the letter noted tha t Harris had done the b ulk of the c onsultations with the client and the docum ent preparation. In an apparent effort to ad dress the overdraft on h is Attorney Trust Accoun t, Respondent explaine d, I h ad in tend ed to deposit the ch eck i n the bank the follo wing day, but unfortunately did not get to the bank until two days later. Ms. Harris [in the] meantime had deposited the check in her account without checking with me first to see whether I had deposited Mr. King*s check Mr. K ing has passed two ba d chec ks. . . . The bank records obtained by Bar Counsel show that, on February 12, 2002, Respondent wrote check number 1027 payable to Mary Harris in the amount of $1,250.00. Check number 1027 was posted to the account on February 12, 2002. As of February 12, 2002, the balance in the attorney trust account was less than $10.00. This Court finds that on February 12 , 2002, wh en Resp ondent w rote the che ck, he kne w that he d id not have $1,250.00 in his attorney trust a ccount. The bank records also indicated that, on February 14, 2002, Respondent deposited two checks from James King to his attorney trust account. The deposit slip for these two checks does not include the designation attorney trust accou nt, attorn ey escrow accou nt, 6 or clients funds account On or about February 14, 2002, Respondent wrote check number 1028 payable to Paralegal Network in the amount of $1,250.00. Check number 1028 cleared the attorney trust account on February 15, 2002. On or about March 7, 2002, Respondent wrote check 1029 payable to the Paralegal Network, Inc., in the amount of $1,435.00. Checks 1027, 1028, and 1029 are each designated IOLTA, but do not include the designation attorney trust account, attorney escrow accou nt, or clie nts fun ds acco unt. Harris is not a member o f the Ma ryland Bar or the bar of any other state or the District o f Colu mbia. R espon dent w as awa re of thi s fact on Febru ary 1, 200 2. The hearing court concluded that the respondent violated Rules 1.15 (a), 8.1 ((b) and 8.4 (d)10 of the Rules of Professional Respo nsibility. It rejected the charges and p etitioner s argument with regard to Rules 5.4 and 5.5. With respect to the Rule 1.15 violation, the hearing judge determined that the responde nt did not m aintain his attorney trust account in accordance with Maryland Rule 16-606. Pointing to that rule s requirement that an attorney or law firm maintain each attorney trust account with a title that includes the name of the attorney or law firm and that clearly designates the account as Attorney Trust Account, Attorney Escrow Account, or 10 To be su re, the hearing court s opin ion refers to R ule 8.4 (b). T hat Rule prohibits the commission of a criminal act that reflects adve rsely on the lawyer s honesty, trustworthiness or fitness as a lawyer in other respects. The court s discussion of the violation, referring to the charge as being engaging in conduct that is prejudicial to the adm inistration of ju stice, and stating its conclusion in that form , makes cle ar that it is 8.4 (d) that wa s the vio lation fo und. 7 Clients Funds Account on all checks and deposit slips, the court concluded: Here, although the bank account s tatem ents appear to be tit led p rope rly, checks 1027, 1028, and 1029, and the deposit slip for the checks from James King do not include the designation attorney trust account, attorney escrow accou nt, or clie nts fun ds acco unt as re quired under R ule 16- 606. For its finding of a violation of Rule 8.1 (b), the hearing court relied on the facts that the respondent did not respond in writing pursuant to the petitioner s letters of February 20 and May 14, 2002, and he did not timely supply the documents those letters requested. It also noted that when the respon dent did sen d a respon se, it was on ly a partial one; it was untimely, being approximately three months a fter the initial req uest, and it did not provide the requested r ecords. Th is incomple te and tardy resp onse to the p etitioner s requests for information provided the basis for the hearing court s conclusion with respect to the 8.4 (d) violation: the Cou rt conclude s that Respon dent s failure to promp tly and sufficien tly respond to Bar Counsel s requests for information is conduct prejudicial to the admin istration o f justice . The petitioner has taken no exceptions to the hearing court s findings of fact or conclusions of law of. It has, however, filed Petitioner s Recommendation for Sanctions, in which it recommends the respondent be suspended from the practice of law for six months. Referring to the respo ndent s fa ilure to respon d to the petition and to the fact that there is no mitigating evidence in the record, the petitioner relies on Attorney Grievance Commission v. Harrington, 367 Md. 36, 50 , 785 A. 2d 126 0, 1268 (2001). Like the petitioner, the respondent has not taken excep tions. He did appear at oral 8 argumen t. He informed the Court that he was, and had been, suffering from depression and that he was n ot then prac ticing law; he was living with his brother. The respondent requested a postponement of the hearing, which the Court denied. The respondent ackno wledg ed that h e had n ot prov ided the petition er with the reco rds it had reques ted. We adopt the recommendation of the petitioner and orde r the respon dent indef initely suspended from the practice of la w, with the right to apply for reinstatement after six months. In so doing, we are mindf ul that th ere is no allegatio n of dis hones ty or misap propria tion. On the other hand, as the petitioner points out, there are, in this record, no mitigating factors. A word of caution is in order. The respondent is reminded that, having introduced the subject of depression, admitting to suffering from it, any petition for reinstatement will have to address the respondent s then present mental condition, as well as his overall fitness to resum e the pra ctice of law. IT IS SO ORDERED; RESPONDENT SHALL PAY ALL COSTS AS TAXED BY THE CLERK OF THIS COURT, INCLUDING COSTS OF ALL TRANSCRIPTS, PURSUANT TO MARYLAND RULE 16-761, FOR WHICH SUM JUDGMENT IS ENTERED IN FAVOR OF THE ATTORNEY G R IE V A N C E COMMISSION AGAINST SHUAN ROSE. 9
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