*1
Jagjot Singh KHANDPUR. 3, Sept. Term,
Misc. Docket No. AG 2010. Appeals Maryland. Court of
July *2 (Glеnn Dolores 0. Assistant Ridgell, Bar Counsel M. Gross- man, Counsel, Bar Mary- Grievance Commission of land), for Petitioner. Brennan, Jr., Brennan,
William C. Esquire Sullivan, McKenna, LLP, Greenbelt, MD, for Respondent. C.J.,
Argued BELL, HARRELL, BATTAGLIA, before *3 GREENE, MURPHY, BARBERA, ADKINS and JJ.
GREENE, J. 16-715, Pursuant to Maryland the Attorney Grievance (“Petitioner”), Commission of Maryland acting through Bar Counsel, filed a for Petition Disciplinary or Remedial Action against Jagjot Khandpur S. (“Respondent”), charging him professional with arising misconduct his representation out of of Bhuwani S. Subedi in his application asylum. for Petitioner charged Respondent violating with (Diligence),1 Rules 1.3 1.4 (Communication),2 3.4(c) (Fair- (Safekeeping 1.15 Property),3 provides: 1. MRPC 1.3 lawyer
A diligence shall promptness act with reasonable and in representing a client. provides: 2. MRPC 1.4
(a) lawyer A shall: (1) promptly any inform client of or decision circumstance with consent, respect to which the client’s informed as defined in Rule 1.0(f), Rules; required by is these (2) keep reasonably the client informed about status of the matter; (3) information; promptly comply requests reasonable and (Bar Counsel),4 8.1 Admission and and Opposing Party
ness (d) 8.4(c) (Misconduct)6 Matters),5 of the Disciplinary (4) limitation on the client about relevant consult with the expects lawyer knows the client lawyer’s when the conduct by Maryland Lawyers’ Rules permitted of Profes- assistance not other law. sional Conduct or reasonably necessary (b) lawyer explain a to the extent A shall matter regarding repre- permit make informed decisions the client to sentation. provides: 1.15 MRPC persons (a) property or is in a lawyer of clients third A shall hold separate possession representation with a lawyer’s in connection kept separate a lawyer’s property. Funds shall be from the own Mary- Chapter pursuant Title 600 of the account maintained Rules, accor- shall created and maintained in and records be land property Chapter. be with the in that Other shall dance Rules safeguarded, appropriately specifically as such and identified receipt and shall be created and main- of its distribution records property Complete other records of the account funds and of tained. preserved period at kept by lawyer be for a and shall shall be years the date the record created. five after least (b) lawyer's a lawyer may deposit the own funds in client trust A only b. permitted Rule 16-607 account (c) consent, writing, gives confirmed Unless the client informed deposit legal arrangement, lawyer fees and ex- a shall a different a paid in into client trust account penses that have been advance lawyer’s only as fees may funds for the own benefit withdraw those expenses incurred. are earned (d) receiving property in which a client or third Upon funds or other interest, promptly notify lawyer the client or person has an shall permitted person. Except this Rule or otherwise as stated in third client, lawyer promptly by agreement deliver with the shall law or property person any funds or other that the client third and, request by upon person is to receive or third entitled client accounting regard- promptly person, third shall render a full client or property. ing such (e) representing a is in lawyer client When a course *4 (one persons or more of whom possession property of in which two interests, sepa- property kept shall be may lawyer) claim the be the dispute lawyer The shall lawyer until the is resolved. rate portions property as to promptly all of which distribute dispute. are interests not in 3.4(c) provides: 4. MRPC lawyer shall
A not: (c) of a knowingly disobey obligation under the rules tribunal on an that no valid except open for an refusal based assertion exists; obligation provides: 5. 8.1 MRPC (“MRPC”).
Maryland Rules of Conduct In Professional accor 16-752(a),7 Maryland dance with Rule we referred matter to the Honorable Robert A. Greenberg, of the Circuit Court for County, Montgomеry evidentiary to conduct an hearing and to findings render of fact and recommend conclusions of law. In to our response request, Judge Greenberg held an 20, 2010, evidentiary hearing September on and rendered the of following findings fact and of conclusions law. OF FACT
FINDINGS Respondent was practice Maryland admitted to in law on June and has since a practice maintained solo in law Montgomery County, born, educated, He Maryland. attended law school in In India. he was awarded an LLM by D.C., Howard University Washington, in and admit- ted to the of District Columbia Bar. He was staff counsel at an technology information until company private prac- entered tice 1997. Since then he has been a sole practitioner, applicant bar, An for lawyer admission or reinstatement to the aor application connection with a bar admission or in connection with a matter, disciplinary shall not: (a) fact; knowingly make a false or statement material or (b) necessary fail to disclose a misapprehension fact to correct a person matter, known knowingly have arisen fail to respond ato lawful demand for information from an admissions or disciplinary authority, except require that this Rule does not disclo- sure of protected by information otherwise Rule 1.6. 8.4(c) (d) provides: 6. MRPC professional It is (c) lawyer misconduct for a to: fraud, engage involving dishonesty, in conduct misrepre- deceit sentation; (d) engage in prejudicial conduct that is to the administration of
justice. 16-752(a) Maryland provides: (a) Upon filing Order. a Disciplinary of Petition for or Remedial Action, Appeals may the Court of designating judge enter an order of responsible circuit court to hear the action and the clerk maintaining the designation require record. The order shall judge, attorney, after consultation with Bar Counsel and the to enter scheduling defining order discovery setting the extent of dates completion motions, discovery, filing for the hearing. *5 immigration mat- primarily staff. He handles support without at time. has no more than ten active files a typically ters and an Inter- Respondent “opened The noted that (IOLTA) the Bank of Lawyers’ on Trust Account at est 2008, America,” Respondent in failed to retain 2001. Until and, for be- period statements for this account monthly 2008, identify client 2006 and which tween deposit on bank records. matter was the source of funds his monthly retain state- changed practices He since his has records. deposit ments and more detailed keep Subedi, a Shanker February about Bhuwani On or a In June 2006 Nepal, native of entered the United States. referred Subedi Respondent’s, Thapa, friend of Mohan In application asylum. for Respondent to handle Subedi’s Subedi, ex- early Respondent Thapa met August, filed asylum application would need be plained States, in arrival United year of Subedi’s within one represent preparing applica- Subedi in written agreed to him Both representing asylum at an interview. tion and no spoke and had trouble and his client Hindi Respondent Respondent sent communicating. August On or about Subedi would relaying agreement: pay letter their client a installments, $1,500, in two paid equal fixed fee be in his for application Subedi represent would asylum Immigra- interview with the asylum, culminating an (INS). up If the matter ended tion and Naturalization Service court, additional would be negotiated. fee immigration made an initial Greenberg found Subedi $750 uncertain,” and that this payment in cash “on date payment He found that deposited IOLTA. was never check, which was payment the second Thapa provided $750 on or account deposited directly personal into February it Although was due February about 2007. in the year after arrival United States— 2007—one Subedi’s until application asylum did not file his client’s March testified on about provide failure to essential delay was due to the client’s information, but Judge Greenberg noted that no documenta- *6 tion or records produced were support this claim. Immi- gration authorities returned the application as incomplete on Respondent June 4. resubmitted an application amended but it was denied and the INS commenced deportation proceedings. Subedi retained new counsel and filed grievance. this Be- cause Subedi did not testify at the hearing, Judge Greenberg give any weight to his complaint determining these facts. According to the hearing judge, he “based find- [his] ings solely on Respondent’s testimony, admissions to Bar Counsel and its representatives, and the other exhibits admit- ted at trial.” 16,
On or September 2008, about Respondent met with Petitioner’s investigator, Marc 0. Fiedler. Respondent told Fiedler that Subedi’s payments had been deposited Respon- dent’s IOLTA until they were earned and agreed to provide records, financial which were not timely produced. On Febru- ary Respondеnt and Bar Counsel entered into a (CDA) Conditional Agreement Diversion Maryland under Rule 16-736, which was contingent on Respondent producing cer- tain specific financial records to substantiate his story. Re- spondent provided copies of monthly bank account statements IOLTA, for his but no other documentation. When Bar Counsel informed Respondent that he had violated the CDA by failing to produce the required records, Respondent prom- ised to get more records from his bank and provide by them May 2009. On June Respondent provided some addi- records, tional but none of the records produced explained what happened to the paid fees by Subedi Thapa. As a result, on November Petitioner revoked the CDA and, subsequently, began these proceedings.
CONCLUSIONS OF LAW Judge Greenberg concluded that there was clear and con- vincing evidence Respondent violated Maryland Rules of Professional Conduct 1.3 (Diligence), 1.15 (Safekeeping Prop- 8.4(d) erty), (Misconduct). He found that violated Rule 1.3 failing to file Subedi’s asylum application by failing keep Rule 1.15 violated
on time. IOLTA, for failing fully account proper records subsequent payment cash original $750 either the $750 payments fee trust check, advance failing deposit 8.4(d) by falsely Rule He violated they until were earned. in the CDA that had investigator and stating to Petitioner’s IOLTA, by failing to funds into his prepaid deposited records, manner, timely legiti- in a after produce complete Counsel, and distri- receipt Bar to show the demand mate of trust funds. bution clear that there was not Greenberg concluded had violated 8.1
convincing evidence Matters) 8.4(c) (Bar or Rule be- Disciplinary Admission and “misinformed, not statements were Respondent’s false cause *7 devious,” of documents was “either delayed production not “deceitful.” Bar through ineptitude,” laziness it hearing at the Court that would announced Circuit Counsel Rule Respondent that had violated allеgation its pursue (Communication). Greenberg did not address the 1.4 (Fairness 3.4(c) Oppos- in that Rule to petition allegation Counsel) violated, party been and neither Party and had ing to this omission. exception filed OF REVIEW
STANDARD 461, Sapero, v. 400 Md. Attorney Grievance explained We (2007): 483, 478, 493 929 A.2d jurisdiction complete over original
This Court has attorney Attorney Grievance disciplinary proceedings. 124, 58, 152, A.2d 879 Cherry-Mahoi v. Comm’n omitted). (2005) (citations in Attorney As noted Griev 76 Mahone, 257, 265-66, 920 A.2d ance Comm’n (2007): 458, findings of accept hearing judge’s 463 ‘We are they clearly determine that erroneous. fact unless we Guida, 33, 50, Md. Comm’n v. 391 Grievance Attorney (2006). review, 1085, 1095 scope As our 891 A.2d findings of fact whether we take into consideration requisite proof standard of set proven by have been 16-757(b). provides This Rule that Bar out Rule the averments of the proving counsel has the burden of evidence, convincing clear and and the attor petition by or a matter of who asserts an affirmative defense ney proving оr extenuation has the burden of mitigation extenuation mitigation defense or matter of Guida, 50-51, of the evidence. 391 Md. at preponderance 16—757(b)). ‘Weighing A.2d at 1095 (citing resolving any conflict credibility witnesses are the fact finder.’ State v. proper evidence tasks for (1998). 720 A.2d Stanley, Md. With law, regard hearing judge’s to the conclusions of our review is de novo. Grievance Comm’n v. Har (2001).” rington, 367 Md. 1267-68
DISCUSSION Bar filed an exception Judge Greenberg’s finding Counsel 8.1(b) by failing not violate MRPC in a respond timely requests manner to Bar Counsel’s exceptions hearing records. filed two judge’s findings exceptions fact and two to the court’s conclusions of law.
First, Respondent excepts Judge Greenberg’s finding keep records for his proper IOLTA because the hearing judge monthly did not note that state- Second, ments were available online. Respondent objects to hearing judge’s first finding payment Subedi’s *8 $750 uncertain,” was in on a paid cash “date before the conclusion representation. Rеspondent of the maintains that the $750 received, check from Thapa payment was the first and that the second was not until after payment asylum received Judge interview. third is to exception Green- (Dili- berg’s conclusion that Respondent violated MRPC 1.3 gence) by filing asylum his client’s more a application than Fourth, Respondent month late. to exception Judge takes Greenberg’s conclusion that violated 1.15 Respondent MRPC (Safekeeping Property) by receiving client and placing funds them into personal they account before were earned. of MRPC 8.1
Violation 8.1(a) with a lawyer, that a connection MRPC dictates matter, state “knowingly not make a false disciplinary shall 8.1(b) shall fact,” requires lawyer that a ment of material a lawful demand for informa respond fail to to “knowingly Re- authority....” or disciplinary from an admissions tion to falsely investigator state Petitioner’s spondent had been into payments deposited the CDA the two $750 however, that Respon- found Judge Greenberg, his IOLTA. he that the misstatements was credible when testified dent staff, having lack support due to were result, investigation.” As become “overwhelmed not clear and convinc- hearing judge concluded there was the Petition- Respondent knowingly mislead ing evidence that er. notes, correctly, Hearing judge that “the
Petitioner to dealing MRPC with the failure 8.1 aspect address two for records.” On investigator’s requests respond process, during disciplinary Respon- occasions separate failed to Petitioner’s lawful demands respond dent that, initial First, found at the Judge Greenberg information. Peti- meeting Respondent and between September records Respondent “agreed provide investigator, tioner’s had been payments contention [that to corroborate his Account], ultimately Attorney Trust deposited into his timely to do so in manner.” failed Second, Greenberg found that under the terms of the records, CDA, requirеd provide specific statements; checks; regis- check namely, cancelled “monthly ter; identifying funds received and disbursed information matter; deposits and all other records of the Subedi involving Initially, Respon- the account.” and disbursements monthly After additional provided only dent statements. Counsel, agreed provide from Bar prodding May provided On June remaining records checks, The but no other records. of some cancelled copies time, has “[t]hrough present noted that court *9 disbursements, of all IOLTA or records of provided copies nor Complainant, provided transactions with has any explanation why as to these records have not been satisfactory produced.” essentially produce concedes that he failed to records, failure is because argues
these this excusable disciplinary provide the Petition for or remedial action sufficient notice of the basis for the faced charges Respondent 8.1(b). under Rule to constitute a “lawful demand for records” out that Specifically, Respondent points petition “[w]hile allegations forth of conduct specific sets followed assertions violated, of what it say allegations rules were does not which 16-758(c)8 assertions,” which Rule support Maryland that the be requires petition “sufficiently specific” clear give Respondent charges against notice of the him. ap citation is incorrect because Rule 16-758
plies post-hearing phase disciplinary proceedings, investigation rather than to the initial when the demands language Respondent quotes likely occurred. The is from (c),9 governs Rule 16-751 which the form of the petition disciplinary or remedial action. But both of the demands for here, information at issue in the initial September meeting CDA, were in the course investigating Subedi’s original result, before complaint, the Petition was filed. As a whether or not the specific” Petition was “clear and can have bearing no on whether these demands were “lawful” or wheth er Respondent’s produce failure to records was “knowing” 8.1(b). under Rule 16-758(c), "Post-hearing proceedings” provides:
8. Rule (c) Response. days exceptions Within 15 after service of or recom- mendations, party may response. the adverse file a 16-751(c), Maryland disciplinary “Petition for or remedial ac- tion,” provides: (c) petition sufficiently The petition. shall be clear and Form of specific respondent any professional to inform the misconduct charged allegation respondent and the basis of lhat the is inca- pacitated placed be should on inactive status. *10 event, held that an “assertion this Court has
In requested by materials that the there was no evidence that immaterial, investigation is necessary to the were Bar Counsel Bar Counsel obligation provide an to as has investiga in the course of an requested material any relevant Obi, 643, 654, 904 A.2d 393 Md. Attorney tion.” Griеvance 16-731(c)(1) (“Bar (2006) Counsel (citing Md. 428-29 rec information and attorney provide may demand that relevant to the appropriate that Bar Counsel deems ords clearly Bar Counsel’s demand long As investigation.”)). require there is no being sought, are indicates which records relate to the how the records explain that Bar Counsel ment investigation. does not information Bar Counsel
A
request
trigger
form order to
any particular
come in
have to
In Attorney
of MRPC 8.1.
Griev
requirements
compliance
(2000),
Fezell,
attorney
Online Greenberg’s finding Respondent excepts monthly not retain IOLTA “Mypically, respondent bank, 2006-2008 did period and for from statements prepared on tickets he deposit the source of funds identify not contend that either Respondent does for his IOLTA.” untrue, these statements is argues, essentially, that the failure to keep proper records was less than severe it sounded online, because the statements were available and Respondent regularly reviewed them and “was able to identify the source deposited of funds identify was able to which fees were earned.” that,
It is well established although we conduct an independent review of the complete record relating to a dis puted finding, a hearing judge’s factual findings are consid ered prima correct and will not be overruled they unless fame clearly Harris, are erroneous. Grievance v. (2001). also, See Attorney Griev *11 Sheridan, 1, 17,
ance v.
1143,
(1999);
741 A.2d
Grievance v. Kemp,
672,
(1985).
emphasized
We have
that “the hearing judge ‘may
”
elect
to pick and
which
choose
evidence to rely upon,’
Harris,
388-89,
Here, Respondent points only to testimony his own at the hearing to establish that the availability of online statements part was of his record-keeping procedure. Judge Greenberg found that “Respondent failed to maintain records for receipt funds, distribution of trust as required by [MRPC] 1.15(a).” According judge’s to the finding, “to day, this [Re- spondent] has not been identify able to happened what paid by first Although Respondent $750 [Subedi].” posits that he could access his online, account statements this contention overlooks Respondent’s obligation to maintain records for receipt distribution of trust funds in order to explain, verify, or corroborate his handling of client funds when re- quested by Bar Counsel to do so. The exception is overruled. Payment
When the Cash was Received Respondent’s exception second is to Greenberg’s factual finding that “paid Subedi in cash to Respon- $750.00 uncertain, into the
dent, was not deposited on a date which payment that initial Respondent asserts Subedi’s IOLTA.” it check, form of which was not because deposited in the a was that the Respondent alleges drawn on insufficient funds. was Thapa’s matter was actually he received payment first check, personal into deposited which was $750 done at least some on 2007—after had February account that did not receive Respondent on the matter—and work after completed until he had remaining payment $750 interview, representation, September asylum in the facts is undermined several But this assertion determinations, in his refers Judge Greenberg, record. at cash finding Respondent paid court’s was “the $750.00 is [Subedi], for which there meeting time of the first Respon- agreement retainer between accounting.” no The the fee in two install- paid Subedi be required dent and interview” “asylum attended ments before to Peti- It is stated undisputed the client. in cash investigator that the first was payment tioner’s $750 signed check. And CDA the second was a was February “Respondent stated: $1,500 provided.” fee for to be services paid prepaid testimony mention does not Judge Greenberg check. He must initial bounced payment that Subedi’s *12 credible, the of testimony light found to be not have this (such copy any documentation supporting absence check) to Petitioner’s prior statements Respondent’s the the was payment and in the CDA that initial investigator supporting Respondent’s in cash. There is no evidence made it, contradicting еvidence so testimony considerable cash made payment that was Greenberg’s finding $750 erro- clearly not representation completed was was before Therefore, exception is overruled. Respondent’s neous. 1.3—Diligence act with 1.3 shall requires lawyer “[a]
MRPC a client.” diligence representing and promptness reasonable conclu- hearing judge’s is to the exception third Respondent’s by filing violated MRPC 1.3 Subedi’s Respondent sion that he does more than a month late. While application asylum late, filed dispute application Respondent that the was convincing not clear and evidence that argues that there was filing diligence. was late because of his lack of Court, in the disciplinary hearing Respondent At the Circuit asylum application contended that Subedi’s was not filed on tardy providing time because Subedi was essential informa- tion that needed to complete application. crеdible, find Judge Greenberg testimony this to be finding contention that he had con- several
[b]esides reminding versations with him that infor- Complainant this overdue, memoranda, notes, mation was there are no supporting correspondence documents this assertion. No kind was ever sent Complainant, other 3 letter August legal than that served as the agreement. services that, argues regardless also of his own testimo-
ny, Petitioner not met burden of establishing has its clear and convincing that Respondent reasonably evidence was not dili- gent merely late, by proving filing was without producing some evidence of how lack of dili- gence caused its lateness. Petitioner responds by pointing to Judge Greenberg’s finding that application Subedi’s was ulti- mately denied “not because information lacking, was but be- tardy.” Judge cause it was Greenberg applica- found that the ultimately tion that was submitted did not even attempt provide explanation beyond “yes” question answer the you filing “Are more application year than one after your last arrival in the United States?” He also found that the March, application, ultimately which was submitted in incomplete, returned as but that Respondent was allowed to resubmit a supplemented application, apparently without prej- udice.
It clearly was not erroneous for *13 conclude that application grounds rejec- because late is supplemented can be
tion, application incomplete an while submitted as attorney would have later, diligent reasonably regard- deadline before the possible as complete application from information attorney missing were less of whether minimum, his should Respondent At absolute or her client. author- immigration to to the attempt explain have made some he failed to take late. Because was why application ities are conclusions hearing judge’s and the steps, these either of is overruled. errоneous, exception Respondent’s clearly Property 1.15(c)—Safekeeping Rule 1.15(a) he violated MRPC concedes that Respondent records, exception takes keep adequate by failing violated MRPC Respondent conclusion hearing judge’s of each 1.15(c) portion the unearned failing deposit $750 1.15(c) lawyer that “a requires into his IOLTA. payment have been paid expenses fees and legal deposit shall those may account and withdraw a client trust advance into fees are earned only benefit lawyer’s own funds for entire found that the Greenberg incurred.” expenses completed, was representation before paid fee was fee have of the “should portion at least some concluded that was interview asylum until IOLTA been conducted.” it fee was earned when the entire argues that of it in his place any received, required he was not so
was that we sustain First, suggests IOLTA. cash conclude that Subеdi’s exception $750 factual second concluded, was representation after the made payment was Complain- meeting the first “at the time of rather than check Thapa’s Second, argues $750 ant.” received, repre- months into it six earned when was sentation. fee, must be if a flat even payments, hold that fee
Our cases been yet if has not receipt the work upon in escrow placed See Grievance payment. the time of at performed (2006). As Guido, A.2d Md. exception above, overruled we have explained *14 17 made at payment that the cash was Judge Greenberg’s finding The beginning representation. the of the performed not believe that could have substantial matter, him of half of entitling payment on the to receive work And, made. as we payment the fee the time this was total judge’s payment conclusion that the cash accept hearing the first, payment, check was the second Thapa’s сame $750 received, At the time it fee. completing Respondent’s yet asylum application had not filed Subedi’s yet the entire fee was not Accordingly attended his interview. earned. payment, Judge
Even if check had been the first Thapa’s greatly “time estimate to be Greenberg Respondent’s found Respon- exaggerated.” hearing judge emphasized The that the fees were earned begin argue properly dent did not until after he had retained counsel they before were received no timesheets or present Respondent produced matter. much work he any other documentation to demonstrate how matter; hence, no question had done on the there is reason to credibility. of Judge Greenberg’s Respondent’s assessment Greenberg’s findings Because we that the accept Judge $750 beginning represen- in the of the payment cash was delivered tation, Respondent’s Attorney was never into deposited Accоunt, portion Thapa’s Trust and at least some $750 deposited check was unearned when it was into account, ample support there is evidence to personal 1.15(c). conclusion that violated Rule over- We exception. rule fourth
SANCTION “The purpose attorney disciplinary proceedings is protect attorney.” and not to public punish erring Usiak, 667, 689, 1, 14 v. 418 18 A.3d Attorney Grievance Md. (2011) Mahone, 257, (citing Attorney Grievance v. 398 Md. 268, 458, (2007); 920 A.2d 464-65 Grievance v. Kinnane, (2005)). 324, 339, 1178, 888 A.2d 1187 when deter future protect public they offending Sanctions in the practice “those unfit to continue conduct and remove in this practice of those authorized law from rolls Mahone, 268-69, at 465 (quoting Md. at 920 A.2d State.” Lee, 903 A.2d v. Attorney Grievance (2006)). “commensurate with should be 905-906 Sanctions the intent with which of the violations and gravity nature and committed,” particular into account taking they were mitigating any aggravating of each case and circumstances Stein, also, v. Md. Attorney Grievance factors. Id. See (2003). In Attorney Grievance *15 (2002) DiCicco, 662, 686, 1014, 1027 (quoting 369 Md. Garfield, Comm’n v. Attorney Grievance (2002)), A.2d we said: a imposes
The
interest
is served when this Court
public
legal pro-
to members of this
sanction which demonstrates
By
tolerated.
of conduct that will not be
type
fession
sanction,
responsibility
this Court fulfils its
imposing such
of the Bar
integrity
the maintenance of the
upon
to insist
lawyer
of an individual
prevent
transgression
and to
Therefore,
into
bringing
image
disrepute.
from
its
to effect
designed
interest
is served when sanctions
public
attorney
an
imposed
and
deterrence are
on
general
specific
rules.
disciplinary
who violates
1.3,
case, Respondent
In the
has violated Rules
present
8.4(d).
1.15(a)
(c), 8.1(b),
He
failed to represent
and
and
has
diligence,
keep proper
failed to
his client with reasonable
hold
Attorney
properly
Trust Account and
records for his
earned,
Bar
until
and frustrated
payments
client
trust
carelessly making false statements
investigation by
Counsel’s
Bar
documents demanded
knowingly failing
produce
failures,
hearing judge,
These
as determined
Counsel.
rather
ineptitude,”
“laziness
respondent’s
were
result
proper
determine the
than an intent to deceive. Our task is to
attorney’s wrongdoing
an
accordance with Md.
sanction for
16-759(c).10 Petitioner recommends that this Court sus-
10. Md. Rule
16-759(c)—Disposition—provides:
acknowledges
indefinitely.
pend
we
recommends that
wrongdoing,
some
he has committed
prac-
from the
suspension
An indefinite
impose
reprimand.
in this case.
sanction to issue
appropriate
tice of law is
suspension,
for an indefinite
its recommendation
support
To
Grievance v.
this case to
analogizes
Petitioner
(2007).
660, 667-69
McCulloch,
674, 687-689, 919 A.2d
indefinitely for
case,
attorney
suspended
In that
was
(d)
(c)
1.15(a), 1.16(d),
8.4(b),
1.4(a)(3),
violating Rules
directly
operating
into her
an unearned retainer
by depositing
her,
and,
account,
it,
discharged
her client
after
spending
respond
the unearned fee or
refund
failing
promptly
from her client. Bar Counsel
numerous communications
disbarment, but we determined
recommended
the Commission
ac
mitigated
because she
that McCulloch’s misconduct
remorse,
actions,
had no
for her
showed
responsibility
cepted
hearing judge’s findings
prior disciplinary history, and
See
ambiguous.
level of
were
culpability
to McCulloch’s
McCulloch,
688-89,
(finding
Md. at
Counsel’s
for information about
McCulloch,
months,”
687,
(2005), attorneys mishandling in which were disbarred But, cases, concluded that client funds. those we amounted to intentional theft of client unequivocаlly violations case, however, hearing judge present funds. In the knowingly violated Respondent intentionally not find that trust, any finding make client’s nor did the *17 of intent with to his regard Respondent’s regard with level Drew, Attorney Griev. Comm. v. handling of trust funds. See
21 (1996) (involving a case A.2d failed to attorney suspension where imposed we where account, trust absent attorney’s keep property in safe misappro to intentional support convincing and evidence clear 287, 296- Maignan, Attorney Grievance priation); (2005) suspen an indefinite (holding A.2d in the sanction where evidence the appropriate sion was to belonged funds that attorney spent record showed that that the client, argue misappropri but Bar Counsel his failure intentional, argue attorney’s did that the ation was also a in a trust account was proper maintain client funds to (b) 1.15(a) 8.4(d)). and and of MRPC violation further case, investigate in an to present In the effort misconduct, Re- Bar Counsel directed attorney allegations he properly to for and show that had account spondent into initially deposited to have claimed safeguarded funds request In to that attorney response account. trust into Agreement entered of the Diversion violation Conditional he had Counsel, Bar failed to establish that Bar not into the trust account. Counsel did deposits made the however, of client Respondent’s misappropriation argue, Similarly, hearing knowing. was intentional or funds of the Respondent’s mishandling did not find that judge knowing. advance retainer intentional was failing produce conduct in records Respondent’s As to judge Bar investigation, hearing essential Counsel’s deceit- not characterize conduct as intentional or Respondent’s ful, conduct was the result of but assessed that request In Bar for this Counsel’s ineptitude.” “laziness sanction, hearing he concedes that impose Court to characterize conduct judge willing “was Counsel, evidence.” Bar convincing deceitful clear and however, hearing fact found points judge to the legitimate Bar demands Counsel’s Respondent’s response, investigation and Conditional Diversion connection with the inexcusable, “unjustified prejudicial Agreement, orderly investigation thorough contemplated” *18 the attorney disciplinary rules and in violation of MRPC 8.4(d).
Respondent, arguing for a reprimand, relies upon Attorney
Grievance
Ugwuonye,
(2008),
1208-09 an attorney where was given “public censure” for claiming prepaid fees they earned, before were even though the attorney had already been disciplined on prior three occasions. But the attorney’s conduct in that case was not compounded aby lack of diligence and an uncoopera tive response to Bar Counsel’s investigation, as it was here.
It is most significant, case, in the present that Judge Greenberg did not find that Respondent was from a acting dishonest motive. Although Judge Greenberg did not make an explicit finding regarding intent, i.e., whether Respondent’s misappropriation of client intentional, funds was knowing or negligent, the judge did find that “Respondent’s acts and during omissions the investigation were not intention- 8.4(c), al” and did not violate MRPC which involves “dishones- Moreover, fraud, Petitioner misrepresentation.” or ty, deceit findings regard with hearing judge’s to the except 8.4(c). Findings Fact addition, Proposed in the In MRPC 8.4(c) regard Law to MRPC and Conclusions of Petitioner did not hearing judge, Petitioner submitted provided of MRPC 1.15 violations argue misappropriation finding knowing for a of intentional basis relied, instead, exclusively Re- on dishonesty; Petitioner investigator Bar Counsel’s false statements to spondent’s *19 the against Respondent. in the CDA to make case Further, that discussing in he did feel why 1, that is Judge Greenberg noted “there had violated MRPC bookkeeping and ac- Respondent’s abundant evidence Judge Greenberg elaborat- counting slipshod.” methods were ed: court, opportunity оf which had the
It was the sense the prac- that he—a sole Respondent’s explanation, to listen to staff, any unrepresented by support titioner without in- a bit overwhelmed knowledgeable counsel—was including the vestigation. sloppy record-keeping, His itself, certainly was no maintenance the case of of file had to reconstruct what become trying assistance of to Having opportunity had this observe his Subedi fee. trial, find by the court cannot clear and demeanor at rule, was a evidence that there violation this convincing its investiga- finds to Bar Counsel and his statements added.) misinformed, (Emphasis tor were not devious. had hearing judge’s From the conclusion that 8.4(d), Greenberg’s that Judge it clear focus violated MRPC is manner, timely in a respond, was on failure to requests impact Bar for essential records and Counsel’s This also disciplinary process. that misconduct on the focus is assessment of hearing judge’s evident Greenberg out that pointed “Respon- character when dent at trial had the IOLTA bank acknowledged which he could garage, pro- statements in his records have that, Also, duced at time.” mentioned any retained, many “After the other requested counsel was 24
records did appear, indeed albeit too late to prevent charges in In regard, this case.” ultimately, hearing judge concluded:
While the court has not been willing to characterize Respondent’s conduct as by clear and convincing deceitful evidence, the late and ‘day dollar short’ manner in which response was made to legitimate demands Bar Counsel unjustified inexcusable, and ... prejudicial thorough orderly investigation. “[wjhere
We have held that there is no finding of intentional ... misappropriation and where the misconduct did not result clients, financial loss to of the respondent’s an indefinite suspension ordinarily is the appropriate sanction.” Attorney DiCicco, 1014, Grievance v. 802 A.2d (2002); Attоrney Grievance v. Sperling, Md. (2004) (imposing indefinite suspension with
right
reapply
for admission after
days
where an attorney
“unintentionally
knowingly” violated MRPC 1.
8.4(c) and had been previously disciplined); Attorney Griev-
Seiden,
(2003)
ance v.
A.2d 106-107 a case an involving attorney’s inat- tention and in sloppiness managing attorney account, his trust we an imposed suspension, indefinite as a sanction for the misconduct, attorney’s right with the to reapply for admission casе, to the Bar year. after one In that the attorney failed to accounting of funds any render records maintain addition, In the in trust account. attorney that were money of the that had not know what became attorney did said, “coupled in with his deposited the account. We been records, missing misap- [Kramer’s cavalier attitude about negligence least gross client is at propriation funds] of the bar.” unacceptable for a member of found that has tak- Although Judge Greenberg now problematic record-keeping, his “and steps en to correct statements, more detailed preparing while monthly retains tickets[,]” monthly of to retain prior practice failing his deposit years for from the bank over two IOLTA statements deposit of funds tickets identify the sources on failure account, view, be trust in our cannot over- for his prepared Therefore, Goff, our dispositions consistent with looked. DiCicco, McCulloch, involving cases unintentional and other protection concern for the of and out of misappropriations manage- of inattention public a result of attorney mishandling of account and the ment his trust case, that Petitioner’s persuaded in this we are client funds suspension appropriate is the recommendation of indefinite sanction. case, judge
In believed that present hearing earned, $1,500 ultimately though even the advanced fee personal part deposited of the fee was some prematurely. Although account deposits state mind as to his upon Respondent’s
comment account, least, very personal client into his at funds was careless finding evidence supports to Bar handling attorney responding trust account and In accounting. and an Counsel’s demands documents violation, has failed safekeeping addition to the *21 to a respond and failed to lawful diligently client represent in Bar As we said information from Counsel. demand for Fezell, 1108, 760 A.2d v. 361 Md. Grievance (2000): 1119
26
The practice of law carries with it special responsibilities of self-regulation, and attorney cooperation with disciplinary authorities of the is utmost importance to the success of the process and integrity of the profession. Accordingly, Respondent suspended is indefinitely from the State, in practice of law this thirty effective days from the date of the filing of this opinion. may He apply re- admission days after the effective date of his suspension. ORDERED;
IT IS SO RESPONDENT SHALL PAY ALL TAXED COSTS AS BY THE CLERK OF THIS COURT, INCLUDING THE COSTS OF ALL TRAN- SCRIPTS, PURSUANT 16-715(0, TO MARYLAND RULE FOR WHICH SUM JUDGMENT ENTERED IN IS FA- THE VOR OF ATTORNEY GRIEVANCE COMMISSION OF MARYLAND AGAINST JAGJOT S. KHANDPUR. ADKINS, JJ.,
HARRELL and Concur. HARRELL, J., ADKINS, J., Concurring, joins. which I Although join the Court’s judgment opinion in the case, present I think it worth noting the context of how this case was presented hearing Court, judge and this which limits precedential value of the case. I hope thereby not to see this case offered the future as an authority for some purpose other than for what it holds.
The misappropriation of client funds “is a most egregious violation,” Glenn, Attorney Grievance Comm’n 448, 489, (1996), and, intentional, A.2d if “ordinarily will result in disbarment the absence of compelling extenu- ating circumstances justifying lesser sanction.” Attorney Vanderlinde, Grievance Comm’n v. (2001). Negligent misappropriation, on the other
hand, does not usually disbarment, result in but is more often met with an suspension, indefinite frequently with a right reapply for reinstatement after a specified period of time.
Because of the way that Bar
pursued
Counsel
and argued
charged
case,
violations
in the present
there was no need
*22
Court)
(or
conclusively
this
determine
for the
misappropri-
Khandpur’s
1.15 whether
for
of MRPC
purposes
bank
(i.e.,
personal
check in his
the
depositing
ation
$750.00
account)
because Bar
negligent.
This is so
intentional
was
which the
upon
the misconduct
did not assert
Counsel
relevant
the
miscon-
1.15
was
was
predicated
MRPC
violation
Khandpur
whether
violated
determining
purposes
duct
8.4(c). Rather,
Khandpur’s
argued
Bar Counsel
MRPC
of MRPC 8.1
charge
violation
regard
misconduct with
8.4(c)
opinion points
theAs
Court’s
charge.
supported
discriminating
out,
Bar Counsel’s
hearing judge rejected
8.4(c), finding that
MRPC
respect
argument with
negligent and not
intentional.
8.1
MRPC
misconduct
op.
Had Bar contended Counsel 8.4(c) I charge, argued would have supported misconduct to remand the case to strenuously my colleagues with explicitly Khandpur’s determine whether hearing judge to negligent, was intentional or misconduct under MRPC 1.15 integral addressing be the MRPC finding would such 8.4(c) Indeed, and the sanction. charge appropriate find or judge concedes that the opinion hearing Court’s under MRPC 1.15 was Khandpur’s conclude that misconduct 17, 25 Majority at A.3d at negligent. op. intentional or See (“[T]he make hearing finding ... judge 174-75 regard to his regard Respondent’s level intent with [to] funds.”). is, opinion and handling of As it the Court’s trust case, presented is for this as it was appropriate sanction hearing and this Court. argued judge joins in the me to state that she Judge ADKINS authorizes expressed concurring opinion. in this views