Attorney Grievance v. Sperling

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IN THE COURT OF APPEALS OF MARYLAND Misc. D ocket A G No . 4 September Term, 2003 ATTORNEY GRIEVANCE COMMISSION OF MARYLAND v. LEONARD J. SPERLING Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Bell, C.J. Filed: March 11, 2004 The Attorney Grievance Commission of Maryland, the petitioner, by Bar Counsel filed, pursuant to Maryland Rule 16-751 1 of the M aryland R ules of Proced ure, a Petition For Disciplinary Or Rem edial Action, against Leo nard J. Sperling, the responde nt, 1 Rule 16-7 51 of the M aryland Rule s of Proce dure prov ides, as releva nt: (a) Commencement of Disciplinary or Remedial Action. Upon approval of the Commission, Bar Counsel shall file a Petition for Disciplinary or Reme dial Ac tion in th e Cou rt of A ppeals . Upon the completion of an investigation by Bar Counsel, unless there is a recommendation pursuant to Rule 16-735 (dismissal of the complaint or termination of the proceeding w ithout discipline), Rule 16-736 (C onditional Diversion A greement), 16-737(reprimand) or Rules 16-771, 16-773, or 16-774 (immediate filing of a Petition for Disciplinary or R emedial A ction), Rule 1 6-734 (d) re quires that B ar Coun sel file with the Commission a Statement of Charges with an election for peer review in accordance with Rule 16-741. Maryland Rule 16-741 governs the filing of statements of charges. It provides: (a) Filing of Statement of Charges. (1) Upo n comple tion of an in vestigation, B ar Coun sel shall file with the Commission a Statement of Charges if Bar Counse l determines that: (A) the attorney either engaged in conduct constituting p rofessiona l miscondu ct or is incapacitated; (B) the professional misconduct or the incapacity doe s not warra nt an imm ediate Petition for Disciplinary or Remedial Action; (C) a Co nditional D iversion A greemen t is either not appropriate under the circumstances or the parties were unable to agree on one; and (D) a reprimand is either not appropriate under the circumstances or (i) one was offered and rejected by the attorney, or (ii) a proposed reprimand was disapproved by the Commission and Bar Counsel was directed to file a Statem ent of C harges . in which it was charged that t he re spon dent violated Rules 1.15, S afek eepi ng P rope rty, 2 and 8.4, Miscon duct, 3 of the Maryland Rules of Professional Conduct, as adopted by Maryland Rule 16-81 2. Bar Counsel also alleged that the respondent violated Maryland Code (1989, 2000 Replacement Volume) § 10-306 of the Business Occupations and Professions Article.4 We referred the case to the Honorable Michael J. Finifter, of the Circuit Court for Baltimore Coun ty, for hea ring. See 16-757. F ollowing the hearing, at which both the petitioner and the respondent appeared and participated, the hearing court concluded: 2 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, Chapter 600 of the Maryland Rules. Other proper ty shall be id entified as such and ap propria tely safeg uarded . Comp lete records o f such acc ount fun ds and of other prop erty shall be kep t 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 a 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 and, up on reque st by the client or third person, sha ll promptly render a full accounting regarding such property. 3 Rule 8.4, as relevant, provides: It is professio nal miscon duct for a la wyer to: (a) violate or a ttempt to viola te the rules of profession al conduc t, knowing ly assist or in duce a nother to do so , or do so throug h the ac ts of an other. 4 Maryland Code (1989, 2000 Replacemen t Volume) § 10-306 of the Business Occupations and Professions 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. 2 Respondent unintentionally and unknowingly violated Maryland Lawyer s Rule of Professional Conduct 1.15 ... , Rule 8.4 ([a]) ... and Section 10-306 of the Business Occupations and Professions Article, Maryland Code, when h e failed to rea lize that a shortfall had been created an d existed in his trust account due to his failure to reconcile h is accou nt. See Rule 16-757 (c). 5 These co nclusions o f law flow ed from f indings of fact, made by the trial court to the requisite degree of certainty, i.e. clear and convincing proof. See Rule 16-757 (b ).6 Further, it was not disputed by the respondent, that, following an investigation and analysis by Bar Couns el, the respondent s trust account had a shortfall of $ 42,415.91, for which the respondent could not, and did not, accou nt. 7 The investigation 5 Maryland Rule 16-757 (c) provides: (c) Findin gs and C onclusion s. The judg e shall prepa re and file o r dictate 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 da ys after the con clusion of th e hearing. T he clerk sha ll mail a copy of t he statem ent to ea ch party. 6 Maryland Rule 16-757 (b) reads: (b) Burdens of Proof. The petitioner has the burden of proving the averments of the petition by clear and convincing evidence. A respondent who asserts an affirmative defense or a matter of mitigation or extenuation has the burden of proving the defense or matter by a preponderance of the evidence. 7 The petitioner s investigative finding s were that, as of De cember 31, 200 1, there should have been $96,454.16 in the respondent s trust account, but that, at that time, the account contained only $54,038.25. The accuracy of these findings was not contested, and indee d was co nceded, b y the respond ent. 3 into the respondent s trust account was not triggered by a complaint alleging that the respon dent ha d enga ged in m iscond uct. On the contrary, the hearing court found as a fact that [t]here have been no complaints by any client of Respondent or other person for whom Respondent was holding funds with regard to, or as the result of, the aforementioned shortfa ll. Rather, it w as the petitioner s receipt of a notice from the bank in which the respondent s trust account was deposited, that a check drawn on the respondent s trust account had been returned for non-sufficient funds (NSF) that formed the basis for the investigation.8 The trust account w as brought into balance on or about January 8, 2003, when the respon dent deposited his personal funds, in the amount of the shortfall, into the account. The hearing court made additional findings of fact. The cause of the shortfall was one or more er rors in the administration of the account prior to January 1, 2001, the source of which could not be loc ated. And there was no evidence that the respondent benefitted from the shortfall. Moreover, the hearing court determined: 8. After a thorough investigation by Bar Counsel, there was: 8 The respondent explained the reason for the NSF notice: because the bank closed early on September 11, 2001, the day of the terrorist attacks on the World Trade Center Twin Tow ers, he w as unab le to ma ke his u sual de posits to the trust a ccoun t on that d ay. As the hearing court found, however, the events of September 11, 2001 did not cause the shortfall in [the respondent s] account[; rather, it] merely caused the shortfall to be brought to [the respondent s] and Bar Counsel s attention. Despite the NSF notice, the check that was the subject of the notice was honored by the ba nk. 4 a. No evidence of any theft of funds from the trust account by Respondent or anyone else; b. No evidence that Respondent had ever engaged in improper commingling of personal funds with trust funds; c. No evidence that any client or person for whom Respondent was holding funds suffered a loss directly as a result of the shortfall, or as a result of errors made by Respondent in his administration of the trust account; and d. No evidence or indication that any ongoing or additional errors were made in Respondent s trust account during the period examined, other than those stemming from the aforem entione d shortf all. The hearing court also made findings of fact in mitigation. One such factual finding was, as we have seen, the absence of any complaint by a client or a person for whom the respondent was holding funds. In addition, the hearing court no ted that: the respondent s failure properly to administer and p rovide ov ersight of the trust accoun t [was] d ue to his lack of education, training and understanding regarding the proper administration and oversight of such accounts ;9 the respondent expressed remorse and regret concerning the errors he made in administering the trust account; 10 and that he has taken steps to address the 9 The hearing court acknowledges that the respondent believed, wrongly, as the events under review has convinced him, that he was properly overseeing and admin istering th e trust ac count. 10 Specifica lly, the hearing co urt is satisfied tha t: Respondent now understands how these errors exposed his clients to risk, and is grateful that these issues were discovered prior to any client losing funds as a resu lt of the s hortfal l. 5 deficient ad ministration o f the accou nt. 11 The petitioner took no exceptions to the findings and conclusions of the hearing co urt, but it did file Petitioner s Recommendation for Sanction, in which it urged the resp ondent s indefinite suspensio n from the practice law , with the rig ht to apply for readmission in six month s. In support of that recommendation, while conceding the respondent s cooperation with the petitioner in its investigation and that no client suffered loss, it points to the facts 11 Those steps, as enumerated by the hearing court are: a. Responden t now ensures that he is personally familiar with every settlement check and all other funds received for deposit into his trust account. Similarly Respondent is personally familiar with all checks disbursing funds from the trust account to clients and other payees. b. Respo ndent telep hones the bank on a daily basis to ve rify any and all activity occurring in the trust acc ount on th at day. Becau se Respo ndent is personally fam iliar with all dep osits into the ac count and disbursem ents from the account, the daily telephone inquiry serves as a safeguard that no errors occur and, alternatively, that any errors are discovered and rectified imm edia tely. c. Respondent reviews the monthly bank statement received from the bank with regard to the trust account, and personally reviews all returned checks accompanying that statement. Thereafter, Respondent provides the checks and bank statement to staff for the purpose o f confirm ing that the am ounts reflecte d on the check s are acc urately ref lected o n the ba nk state ments. Thereafter, the checks a nd bank statemen ts, and any other necessary documents, are forwarded to Respondent s certified public accountant, who has been engaged to perform a reconciliation of the trust account on a monthly basis. d. Responden t testified that he plans to attend the Solo an d Small Firm Conference program put on by MICPEL and the Maryland State Bar Association on November 15, 2003. If Respondent is, for some reason, unable to a ttend this prog ram, he inten ds to purch ase the cou rse materials and/or videotapes and review them thoroughly. In addition, Respondent has instructed all of the attorneys in his office to also either attend or review the cou rse mat erials. 6 that: the respon dent s def icient oversight of the trust accoun t, including p articularly his failure to reconcile it, e xposed h is clients to risk, ; R esponde nt paid the o bligations he owed to clients with the funds he was supposed to maintain for other clients ; and the failure of reconciliation of the account went on literally for decades. Another significant factor in the petitioner s recommendation is the length of time that elapsed between the respondent s becoming aware of the shortfall - no later than May 2002" - and the account being b rough t into bal ance - Januar y 8, 2003 . In addition, the petitioner relies on our recent attorney discipline cases, in which a violation of rule 1.15 (a) was fo und, but in w hich there w as no find ing of inten tional misappropriation. See Attorney Grievance Comm n v. Seiden, 373 Md. 409, 818 A.2d 1108 (2003); Attorney G rievance Com m n v. McC lain, 373 Md. 196 , 817 A.2d 218 (2003); Attorney Grievance Comm'n v. DiCicco, 369 Md. 662, 802 A.2d 1014 (2002); Attorney Grievance Comm n v. Jeter, 365 Md. 279, 778 A.2d 390 (2001). In these cases, sanctions ranging from a thirty (30) day suspension, McC ain, 373 Md. at 212, 817 A.2d at 228, to an indefinite suspension with the right to a pply for re admiss ion wit hin six (6 ) month s, Jeter, 365 Md. at 293-94, 778 A.2d at 398, were imposed. In Seiden, the sanction was an indef inite suspension with the right to apply for readmission in thirty (30) days, 373 Md. at 425, 818 A.2d at 1117, and, in DiCicco, an indefinite suspension with the right to apply for readmission after ninety (90) days. 369 Md. at 688, 802 A.2d at 1028. Citing Seiden for the proposition that an attorney s prior grievance history, including the nature of the misconduct 7 involved and the sanction imposed, is a proper co nsideration in determinin g the appro priate sanction, 373 Md. at 422, 818 A.2d at 1115-16, the petitioner points out that the respondent has thrice been sanctioned for misco nduct: he w as repriman ded in 1983 for a violation of DR 7-102 (B) (1) of the Code of Prof essio nal R espo nsib ility, 12 see Attorney Grievance C omm n v. Sperling, 296 Md. 558, 463 A.2d 868 (1983); he was issued a private reprimand by the Review Board in 1998 f or failing to notify medica l services pro viders as req uired by Rule 1.15 (b);13 and he w as repriman ded in 199 9 for violating Rule 1.15 in connection with a dispute d claim to fund s in his p ossessio n. Like the petitioner, the respondent took no exceptions from the findings of fact or conclusions of law. He does, however, take exception to the petitioner s recommendation of a sanctio n. As to it, he re sponds: 12 DR 7-102 (B) (1) of the Code of Professional Responsibility provided: A law yer who rec eives inform ation clearly estab lishing that: (1) His client has, in the course of the representation, perpetrated a fraud upon a person or tribunal shall promptly call upon his client to rectify the same, and if his client refuses or is unable to do so, he shall reveal the fraud to the af fected person or tribun al. 13 Rule 1.15 (b) provides: (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 and, up on reque st by the client or third person, sha ll promp tly render a full acc ountin g regar ding su ch prop erty. 8 The Petitioner has made a recommendation which, the Respondent respectfully submits, is far more severe than warranted in light of certain of the Findings of Fact made by the trial judge; far more severe than warranted when compared to the facts and sanctions involved in other decisio ns of this C ourt; and far more severe than is necessary to achieve the ultimate goal of these proceedings, to prote ct the pu blic. In fact, a susp ension w ill in all likelihood irreparably dam age t he R espo ndent s a bility to maintain his practice in the future, t hereby se verely pu nishing him fo r his unin tentiona l actions . The respondent believes, and therefore recommends that he, once again, be reprimanded, despite his histo ry of three prior dis ciplinar y matters. He submits that the three reprimands he received in those matters are either too remote, (one was issued more than twenty (20) years ago), or not sufficiently similar to the present violation, as to require a different, more severe sanction. R egarding h is argument that the present violation lacks similarity to his prior reprimands, the respondent asserts that the reprimands issued in 1998 and 1999, involving the timeliness of the payment of funds held in his trust account to lienholders following settlement of a case, resulted from conduct completely unrelated to the administration and management of the account as was involved in the present case. In support of his sanc tion recom mendatio n, the respon dent directs o ur attention to several unique aspects of the facts of this case that are relevant to the determination of an appropriate sanction, and that weigh in favor of a lesser sanction than this Court has historically imposed in cases involving trust account violations. He identifies five such facts. The first is the absence of any evidence of theft, by the respondent or anyone else, of the trust funds and, the respondent adds, the petitioner did not even allege or charge [him] with any dishonest act or conduct. Second, the respondent points to the absence of any 9 evidence that he had ever engaged in any improper commingling of personal and trust funds or that he had personally benefitted from the shortage in the trust account. That no complain ts have been made against him by a client or a third person for whom the respondent was holding funds and, so far as the record reveals, no one has suffered a loss as a resu lt of the shortage, is to the respondent, yet another of the facts in h is favor. Also relevant to the sanction, the respondent submits, is the fact that the sh ortfall could have been the result of as little as one isolate d incident, oc curring prio r to January 1, 2 001, that w ent undetected until after the events of September 11, 2001. Finally, the respondent reminds us that the hearing court determined that the errors made by the Respondent in his administration and oversight of his trust account w ere due to h is lack of education, training and understanding regarding the proper manner of performing those tasks, and not willful sloppiness in account manage ment. Addressing the other fa ctors that this C ourt has ide ntified as ap propriate considerations when deciding what sanction to impose in an attorn ey disciplin e case, see Seiden, 373 Md. at 422, 818 A.2d at 1115-16;14 DiCicco, 369 Md. at 686, 802 A.2d at 1028,15 14 This Court stated in Attorney Grievance Comm n v. Seiden, 373 Md. 409, 818 A.2d 11 08 (2003 ) that [t]he n ature and g ravity of the vio lations and th e intent with which they were committed is relevant to the sanctioning process. Id. at 422, 818 A.2d at 1115, quoting Attorney Grievance Comm'n v. Awuah, 346 Md. 420, 435, 697 A.2d 446, 45 4 (199 7). 15 In Attorney Grievance Comm n v. DiCicco, 369 Md. 662, 686-87, 802 A.2d 1014, 10 28(2002 ), this Court ide ntified the fo llowing as factors to be considered in imposing an app ropriate sanction in an attorney discipline ma tter: [A]bsence of a prior disciplinary record; absence of a dishonest or selfish 10 the respondent urges this C ourt to give ample w eight to the hearing court s findings that: he was remorseful for, and regrets the errors he made in administering and overseeing his trust account; the respondent has taken steps to address the deficient administration and oversight of the trust acco unt, conclu ding that, w ith those steps in place, recurrence is unlikely and discovery, in any event, will be more timely; the respondent made up the shortfall; the respondent provided full cooperation with the petitioner and its investigation; the respondent s knowledge concerning the administration and oversight of trust accounts was self taught; and the respondent maintains strong ties to the local legal community and the local community-at-large and co ntribute s substa ntial pro bono a ssistanc e. The steps that the respondent has taken to prevent a recurrence of the trust account deficiency also is viewed, by the respon dent, as interim rehabilitation, an other of the factors that th is Court has indicated mitigates a disciplinary sanction. Our task is to determ ine the app ropriate sanc tion to be im posed in this case, there motive; personal or emotional problems; timely good faith efforts to make restitution or to rectify consequences of misconduct; full and free disclosure to disciplinary boa rd or coop erative attitude toward p roceeding s; inexperience in the practice of law; character or reputation; physical or mental disa bility or impairme nt; delay in disciplin ary proceedin gs; interim rehabilitation; imposition of other penalties or sanctions; remorse; and finally, remoteness of prior offens es. (quoting Attorney G rievance C omm n v. Dunietz, 368 Md. 419, 430, 795 A.2d 706, 711 (2002) (quoting Attorney Grievance Comm'n v. Jaseb, 364 Md. 464, 481-82, 773 A.2d 516, 526 (2001))(quoting Attorney Grievance Comm n v. Glenn, 341 Md. 448, 488-89, 671 A.2d 46 3, 483 (1996)). 11 being no issue as to whether the respondent violated the rules charged. We approach that task with the pu rpose serve d by imposition of a sanctio n in an attorney discipline case firmly in mind: to protect the public rather than to punish the erring attor ney, as well as to promote general and sp ecific d eterren ce. Awuah, supra, 346 Md. at 435, 697 A.2d at 454 (1997); Attorney Grievance C omm n of M aryland v. Myers, 333 Md. 440, 446-47, 635 A.2d 1315, (1994); Attorney Grievance Comm n v. Protokowicz, 329 Md. 252, 262-63, 619 A.2d 100, 105 (1993). We have elaborated: We have recognized that the pub lic interest is serve d when this Court imposes a sanction which demonstrates to members of the legal profession the type of conduct that will not be tolerated. ... Moreover, such a sanction represents the fulfillment by this Court of its responsibility to insist upon the maintenance of the integrity of the bar and to prevent the transgression of an individual lawyer from bringing its image into disrepute. ... Therefore, the public interest is served when sanctions designed to effect general and sp ecific deterrence are imposed on an attorney who violates the disciplin ary rules. ... Of course, what the appropriate sanction for the particular misconduct is, in the public interest, generally depends upon the facts and circumstances of the case. ... The attor ney's prior grievance history, as well as facts in mitigation, constitute part of thos e facts a nd circu mstanc es. Myers, 333 Md. at 447, 635 A.2d at 1318, quoting Maryland St. Bar Ass'n v. Agnew, 271 Md. 5 43, 549 , 318 A .2d 811 , 814 (1 974) (c itations o mitted). In this State, it is well settled that the sanction for misappropriation of client funds or funds entrusted to a lawyer is, in the ab sence of c ompelling extenuating circumstances justifying a lesser sanction, disbarment, because misappropriation is an act infected w ith deceit and dishonesty. Attorney Grievance C omm n v. Sp ery, 371 Md. 560, 568, 810 A.2d 487, 491-92 (2002 ). See Attorney Grievance Comm n v. Smith, 376 Md. 202, 238, 829 A.2d 12 567, 588-89 (2003); Attorney Grievance Comm n v. Sullivan, 369 Md. 650, 655-56, 801 A.2d 1077, 10 80 (2002 ); Attorney Grievance Comm n v. Vanderlinde, 364 Md. 376, 410, 773 A.2d 463, 483 (2001); Bar Ass n v. Ma rshall, 269 Md. 510 , 520, 307 A.2d 6 77, 682 (1973). Where there is no finding of intentional misappropriation, however, and where the misconduct did not resu lt in financial lo ss to any of the respondent's clients, an indef inite suspension ordinarily is the approp riate sanction. DiCicco, 369 Md. at 687, 802 A.2d at 1028; see Seiden, 373 M d. at 424-25 , 818 A.2d at 1117; Jeter, 365 Md. at 293, 778 A.2d at 398; Awuah, 346 M d. at 435 -36, 69 7 A.2d at 454. T herefo re, we r ecogn ize that, w hile ignorance does not excuse a violation of disciplinary rules, a finding with respect to the intent with wh ich a violation was com mitted is relevant to the appropriate sanction and consistent with the pur pose o f a disci plinary pr oceed ing. Awuah, 346 Md. at 435-36, 697 A.2d at 454. The violations that the respondent has been found to, and in fact concedes to have committed are quite seriou s. As the petition er notes and the respon dent als o conc edes, a shortfall in an attorney s trust account, and in particular one so large, places clients and others whose funds are being held at some considerab le risk. To be sure, no on e suffered as a result of the shortfall and the findings of fa ct and conclu sions of law of the hea ring court, particularly as they relate to the cause of the violations and the intent with which the y were committed, are mo st favo rable to t he resp onden t. On the o ther hand, a s the petitione r points out, we must con sider that the respondent has been reprimanded for disciplinary violations in the past an d that the resp ondent ac ted with significant delay in bringing the trust account 13 to balan ce. While the cases cited by the parties are instructive, the facts and circumstances in those cases, and their relationship to the relevant co urt s determination of the appropriate sanction to be applied are not directly apposite to the case sub judice. In none of those cases had the attorney previo usly been disciplin ed. Nevertheless, neither did the Court in those cases issue only a reprimand, as the respondent would have us do in this matter. This Court acknowledges that the prese nt case w as not the res ult of a com plaint, but it is also true that in none of the cited cases was there a s large a shortfall. Moreov er, in DiCicco, the attorney s lack of a disciplinary history was specifically noted as a basis for the sanction in that case, indefin ite suspe nsion w ith the rig ht to reap ply in 90 d ays. In Attorney Grievance Comm n v. Culver, 371 Md. 265, 283-84, 808 A.2d 1251, 1261-62 (2002), this Court imposed as a sanction, an indefinite su spension w ith the right to reapply in 30 days on a lawyer who violated M aryland Rules 1.5(c) and 16 -607(b)(2), pertaining to the handling of contingent fees and commingling funds, re spec tivel y, and who had previously been reprimanded for failing to communicate with his client and to act diligently with regard to the client matter. See Attorney Grievance Comm n v. Adams, 349 Md. 86, 98-99, 706 A.2d 1080, 1086 (1998) ( indefinite suspension with the right to reapply in 30 days for violations of MRPC 1.15 and Rule 16-604 when the violations were the attorney s first invo lveme nt in the d isciplina ry system). 14 Under all of the circumstances of this case, we conclude that the appropriate sanction is an indefinite suspension from the practice of la w with th e right to app ly for readmiss ion to the bar a fter nin ety days. 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 A TTORNEY COMMISSION AGAINST SPER LING . 15 G R I EV A N C E LEONARD J.

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